LaFalce v. Wolcott

• Decision Date: 17 September 1985
• Docket Number: No. 8428SC1271,8428SC1271
• Citation: 334 S.E.2d 236,76 N.C.App. 565
• Court: North Carolina Court of Appeals
• Parties: Bettye Jo LaFALCE and husband Anthony J. LaFalce v. Roy Emery WOLCOTT.

Page 236

334 S.E.2d 236

76 N.C.App. 565

Bettye Jo LaFALCE and husband Anthony J. LaFalce v. Roy Emery WOLCOTT.

No. 8428SC1271.

Court of Appeals of North Carolina.

Sept. 17, 1985.

Long, Howell, Parker & Payne, P.A. by Mary E. Arrowood, Asheville, for plaintiffs-appellants.

Morris, Golding, Phillips and Cloninger by Thomas R. Bell, Jr. and James N. Golding, Asheville, for defendant-appellee.

BECTON, Judge.

Plaintiffs, Bettye Jo and Anthony J. LaFalce, appeal from the trial court's judgment (a) allowing defendant's motion for a directed verdict and dismissing plaintiffs' personal injury and property damage action; and (b) allowing defendant's motion to set aside the verdict and granting defendant's motion for a new trial on defendant's counterclaim for property damage.

On 26 July 1983, Bettye Jo LaFalce was driving south in the outside lane of Asheland Avenue, a four-lane street. According to Ms. LaFalce, she saw a dark car in the driveway of a parking lot of a doctor's office ahead of her on the right side of the road. The only southbound traffic near her was a light-colored vehicle moving slowly in her lane, ahead of her, apparently preparing to turn right. Plaintiff changed lanes to the inside lane to pass the slower vehicle. At that time, the car of defendant, Mr. Wolcott, had stalled while he was attempting a left turn across the southbound lanes. The Wolcott and LaFalce cars collided.

Plaintiffs filed a claim for personal injury and property damage. Defendant counterclaimed for property damage, alleging plaintiff's negligence in failing to stop after seeing defendant's car stalled in the street. At the close of plaintiffs' case, the trial court allowed defendant's motion for a directed verdict. Defendant then presented evidence on his counterclaim, and the trial court denied plaintiffs' motion for a directed verdict. After the jury returned a verdict finding the plaintiff negligent but awarding no damages to the defendant, the court allowed defendant's motions to set aside the verdict and for a new trial on the counterclaim. Plaintiffs' Motion for Relief from Judgment and New Trial was denied.

Plaintiffs assert the trial court erred on three grounds: (1) plaintiffs' evidence was sufficient to go to the jury; (2) testimony that plaintiff had had emotional problems in the past, had been institutionalized and drank excessively after the accident was erroneously admitted; and (3) plaintiffs' Motion for Relief from Judgment and New Trial should have been granted because plaintiffs' attorney was not prepared and the jury disregarded the court's instructions. Defendant asserts that this interlocutory appeal should be dismissed. We disagree with defendant and allow the appeal. We agree with plaintiff that the evidence was sufficient to go to a jury, but disagree on the second and third grounds.

I

The initial question is whether this appeal is premature. Clearly, the trial court's orders and judgments in this case disposed of fewer than all of the issues. Indeed, the court retained jurisdiction for a new trial on the defendant's entire counterclaim, and there has been no determination by the court that "there is no just reason for delay" under North Carolina Rule of Civil Procedure 54(b). Nevertheless, this appeal is permissible if it affects a substantial right of the plaintiff under N.C.Gen.Stat. Secs. 1-277(a)(1983) and 7A-27(1981). Nasco Equip. Co. v. Mason, 291 N.C. 145, 148, 229 S.E.2d 278, 281 (1976); Oestreicher v. Amer. Nat'l Stores, Inc., 290 N.C. 118, 225 S.E.2d 797 (1976); Narron v. Hardee's Food Sys., Inc., 75 N.C.App. 579, 331 S.E.2d 205 (1985).

As our Supreme Court candidly admitted, the "substantial right" test is "more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context...." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). Nonetheless, several principles emerge from the many interlocutory appeals this Court has considered. For example, the mere avoidance of a rehearing on a motion or the avoidance of a trial when summary judgment is denied is not a "substantial right." Waters, 294 N.C. at 208, 240 S.E.2d at 344; Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 336, 299 S.E.2d 777, 781 (1983) ("avoidance of a portion of an administrative hearing is not a 'substantial right' "). Similarly, an order granting a partial new trial is not immediately appealable, despite the language of N.C.Gen.Stat. Sec. 1-277(a) ("An appeal may be taken from every judicial order or determination [which] ... grants or refuses a new trial."). Johnson v. Garwood, 49 N.C.App. 462, 463, 271 S.E.2d 544, 545 (1980); Unigard Carolina Ins. Co. v. Dickens, 41 N.C.App. 184, 186-87, 254 S.E.2d 197, 198 (1979) (jury verdict on liability allowed; grant of new trial on damages not immediately appealable); accord Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 433-34 (1980) (order forcing plaintiffs to undergo full trial rather than trial on damages only, not appealable); Tridyn Indus., Inc. v. Amer. Mutual Ins. Co., 296 N.C. 486, 251 S.E.2d 443 (1979) (trial judge granted summary judgment on issue of liability only).

In another line of cases, our Supreme Court determined that a substantial right was affected by an order granting defendant's motion for partial summary judgment on plaintiff's claim for punitive damages. Oestreicher v. Amer. Nat'l Stores, Inc. In Oestreicher, the Supreme Court adopted the definition of "substantial right" found in Webster's Third New International Dictionary (1971): "a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right." 290 N.C. at 130, 225 S.E.2d at 805. The Supreme Court then noted that the punitive damages claim was closely related to the other two claims in plaintiff's action.

To require him possibly later to try the second cause of action for punitive damages would involve an indiscriminate use of judicial manpower and be destructive of the rights of both plaintiff and defendant. Common sense tells us that the same judge and jury that hears the claim on the alleged fraudulent breach of contract should hear the punitive damage claim based thereon....

We believe that a "substantial right" is involved here. If the causes of action were not subject to summary judgment, plaintiff had a substantial right to have all three causes tried at the same time by the same judge and jury. The case falls squarely within the definition of "substantial right" as defined by Webster's, supra.

Id. (citation omitted); see Newton v. Standard Fire Ins. Co., 291 N.C. 105, 108, 229 S.E.2d 297, 299 (1976) ("that this case involves a dismissal under Rule 12(b)(6) rather than a summary judgment does not affect the applicability of our holding in Oestreicher.") In short, the rule of Oestreicher and Newton is intended to prevent "a bifurcated trial." See Tridyn, 296 N.C. at 493, 251 S.E.2d at 448.

In the case at bar, the trial judge directed a verdict against the plaintiffs, denied plaintiffs' motion for a new trial and granted defendant's motion for a new trial on his counterclaim. We believe this affects a substantial right of the plaintiffs. Plaintiffs have already completed one trial, and if this appeal is not allowed, they will undergo a second trial on defendant's counterclaim. Then, if plaintiffs' exceptions are meritorious, they will undergo a third trial to relitigate plaintiffs' original action because the second trial will not include the issues of the extent and amount of plaintiffs' injuries or property damages. We find this case similar to Roberts v. Heffner, 51 N.C.App. 646, 650-51, 277 S.E.2d 446, 449 (1981):

In our opinion, the possibility of being forced to undergo two full trials on the merits and to incur the expense of litigating twice makes it clear that the judgment in question works an injury to defendants if not corrected before an appeal from a final judgment. The burden on defendants in this case of being forced to undergo two full trials is much greater than that suffered by the appellant in Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978) (the necessity of rehearing its summary judgment motion), or by the appellant in Bailey v. Gooding, supra (the necessity of undergoing a full trial on the merits instead of a trial solely on the issue of damages) or by the appellant in Industries, Inc. v. Insurance Co., supra (the necessity of undergoing a trial on the issue of damages). We conclude that the judgment in question affects a substantial right of the defendants....

Accordingly, we hold that this appeal affects a substantial right of the plaintiffs under N.C.Gen.Stat. Secs. 1-277(a) and 7A-27.

II

The plaintiffs' first assignment of error is that the directed verdict against the plaintiffs was improper. It is not clear from the record whether the trial judge directed the verdict because plaintiffs failed to establish defendant's negligence or on the basis of plaintiff's apparent contributory negligence, or both. The judgment states, "the Court [is] of the opinion that the plaintiffs' evidence was insufficient to establish the allegations of negligence against the defendants and in effect indicated the plaintiffs' contributory negligence as a matter of law...." The standard for allowing a directed verdict is well established.

In passing upon a motion for a directed verdict, ... the court must consider the evidence in the light most favorable to the non-movant, deeming all evidence which tends to support his position to be true, resolving all evidentiary conflicts favorably to him and giving the non-movant the benefit of all inferences reasonably to be drawn in his favor.... A directed verdict on the ground of contributory negligence...