Lee v. Bir

• Decision Date: 18 October 1994
• Docket Number: No. 9320SC1040,9320SC1040
• Citation: 116 N.C.App. 584,449 S.E.2d 34
• Parties: Michael Kent LEE and wife, Anne P. Lee, Plaintiffs, v. Allen C. BIR, Defendant.
• Court: North Carolina Court of Appeals

Page 34

449 S.E.2d 34

116 N.C.App. 584

Michael Kent LEE and wife, Anne P. Lee, Plaintiffs, v. Allen C. BIR, Defendant.

No. 9320SC1040.

Court of Appeals of North Carolina.

Oct. 18, 1994.

Griffin, Caldwell, Helder, Lee & Helms, P.A. by W. David Lee, Monroe, for plaintiffs-appellees.

Vannoy, Colvard, Triplett & McLean by J. Gary Vannoy and Jay Vannoy, N. Wilkesboro, for defendant-appellant.

ORR, Judge.

At all times relevant to this action, Plaintiffs Michael Kent Lee and his wife Anne P. Lee owned Lot 21, Section K in the High Meadows Subdivision located in Alleghany County, North Carolina, and Defendant Allen C. Bir owned Lot 20, the lot adjacent to plaintiffs' property. The parties stipulated that "during May, June and July, 1990, certain trees and other natural growth were cut from the lot owned by the plaintiffs without their knowledge or consent." Further, the parties stipulated that between 1 May 1990 and 1 August 1990, the defendant "requested one Kenneth Miles to cut and remove some trees located behind his house in order for him to view Stone Mountain."

At trial, Kenneth Miles testified that in May or June of 1990 he was contacted to do some landscaping work for defendant. Subsequently, Miles went to defendant's home on Lot 20 where defendant took Miles outside on the back deck of his house and "showed [him] from looking straight out on his deck ... some trees that [defendant] wanted cut from a viewpoint down." Miles testified that the area from which defendant wanted Miles to cut the trees ran from the back of defendant's deck to a specific point on the mountain and a clearing which defendant pointed out to Miles.

Miles further testified that he cut trees down for two or three weeks. During this time, defendant did not indicate to Miles that he might be on someone else's property. Miles then cut up the brush and trees, stacked the wood and began to burn the brush as he was instructed to do by defendant. Thereafter, Miles testified that defendant told him that everything looked good but that they had to "hurry up and get what [they] had to get done because ... [they were] cutting on somebody else's property." Miles also testified that defendant instructed him to keep quiet about the cutting. Subsequently, Miles also testified that two days before Miles' deposition was to be taken in this case, defendant told Miles to say that the trees that were cut were all from Hurricane Hugo damage.

Defendant also testified at trial. He testified that he "admitted cutting the trees" on plaintiffs' property. Further, he testified that when he told Miles to say that the trees they had cut down were from Hurricane Hugo damage, defendant was just joking with Miles.

I.

On appeal, defendant contends that the trial court erred in (1) denying defendant's motion for a directed verdict at the close of plaintiffs' evidence and at the close of all of the evidence on the issue of whether defendant trespassed on plaintiffs' land, (2) denying defendant's motion for a directed verdict and judgment notwithstanding the verdict on the issue of punitive damages, and (3) denying defendant's motion for judgment notwithstanding the verdict on the issue of actual damages.

First, "[a] motion for a directed verdict shall state the specific grounds therefor." N.C.R.Civ.P. 50(a) (1990). "On review of a directed verdict, appellate review is usually limited to those grounds asserted by the movant upon making his motion before the trial judge." Warren v. Canal Industries, Inc., 61 N.C.App. 211, 213, 300 S.E.2d 557, 559 (1983); See also Southern Bell Tel. and Tel. Co. v. West, 100 N.C.App. 668, 670, 397 S.E.2d 765, 766 (1990), aff'd per curiam, 328 N.C. 566, 402 S.E.2d 409 (1991).

Similarly, "[t]he motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of all the evidence, and thus the movant cannot assert grounds not included in the motion for directed verdict." Love v. Pressley, 34 N.C.App. 503, 511, 239 S.E.2d 574, 580 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

In the present case, the only grounds defendant asserted as the basis for his directed verdict motion was the insufficiency of the evidence to support an award of punitive damages. Defendant did not assert the insufficiency of the evidence to support plaintiffs' allegations of trespass or to support an award of actual damages. Because defendant failed to assert the insufficiency of the evidence to support plaintiffs' action for trespass or an award of actual damages as grounds for his motion for a directed verdict, defendant has waived his right to appellate review of these issues. See Southern Bell Tel. and Tel. Co., 100 N.C.App. at 670, 397 S.E.2d at 766 (the scope of appellate review of a directed verdict motion "is limited to those grounds asserted by the moving party before the trial court."); See also Love, 34 N.C.App. at 511, 239 S.E.2d at 580 (upon review of a motion for judgment notwithstanding the verdict, defendant waives his right to appellate review of the sufficiency of the evidence to support a verdict as to damages when he did not assert this issue as grounds for his directed verdict motion). Thus, as to defendant's first assignment of error, the only issues before this Court are whether the trial court erred in denying defendant's motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages.

A motion for a directed verdict pursuant to Rule 50(a) of the North Carolina Rules of Civil Procedure raises the question of whether plaintiff's evidence, considered in the light most favorable to the non-movant, is sufficient to submit the issue to the jury. Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C.App. 663, 665, 391 S.E.2d 831, 832 (1990). The court must resolve any conflicts in the evidence in the favor of the non-movant. Id.

Similarly,

"[w]hen passing on a motion for judgment notwithstanding the verdict, the same standards applicable to a motion for directed verdict are to be applied. Thus, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to support a verdict for plaintiff...."

Clontz v. Clontz, 44 N.C.App. 573, 577, 261 S.E.2d 695, 698, disc. review denied, 300 N.C. 195, 269 S.E.2d 622 (1980) (citations omitted). Subsequently, "[t]he court should deny motions for directed verdict and judgment notwithstanding the verdict when it finds any evidence more than a scintilla to support plaintiff's prima facie case in all its constituent elements." Clark v. Moore, 65 N.C.App. 609, 610, 309 S.E.2d 579, 580-81 (1983). Applying these standards to the issues before us, we conclude that the trial court did not err in denying defendant's motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages.

" 'While punitive damages are not recoverable as a matter of right, sometimes they are justified as additional punishment for intentional acts which are wanton, wilful, and in reckless disregard of a plaintiff's rights.' " Maintenance Equipment Co., Inc. v. Godley Builders, 107 N.C.App. 343, 351, 420 S.E.2d 199, 203 (1992), disc. review denied, 333 N.C. 345, 426 S.E.2d 707 (1993) (citation omitted). In an action for trespass, "[a] jury may award punitive damages if the trespass was committed under circumstances of aggravation or resulted from malicious conduct on the part of the defendant." Id.

In proving that a plaintiff is entitled to recover punitive damages in an action for trespass, " '[t]he plaintiff is at liberty to give in evidence the circumstances which accompany and give character to the trespass.' " Brame v. Clark, 148 N.C. 364, 366, 62 S.E. 418, 419 (1908) (citation omitted). Further, "[i]f the pleading and evidence so warrant, an issue as to punitive damages should be submitted to the jury." Hinson v. Dawson, 244 N.C. 23, 26, 92 S.E.2d 393, 395 (1956).

In the present case, in their complaint, plaintiffs alleged that defendant's trespass on their land and cutting of trees "was intentionally undertaken by the [d]efendant and others at his express employ and direction willfully, wantonly, maliciously, and surreptitiously." At trial, Kenneth Miles testified that defendant told him to clear cut the trees in the area behind defendant's house from defendant's deck to a clearing on the mountain so that defendant could see Stone Mountain. Defendant testified that at the time he told Miles where to cut the trees, he had made no investigation as to the position of his property line. Further, he testified that he just "assumed" that his property line ran perpendicular to the road.

Subsequently, in Miles' statement to Sergeant Hudson of the Alleghany Sheriff's Department, Miles stated that after he and his helper, Dale Wyatt, had cut down the trees as instructed by defendant, defendant told them "he wanted it cleaned up and wanted [them] to hurry and get done because this was someone else's property ", and when defendant paid Miles and Wyatt, he told them "to be quiet about cutting the trees." (Emphasis added.) Further, the record reveals that when defendant later found out that plaintiffs were taking Miles' deposition in this case, defendant told Miles not to worry about anything but to just "[t]ell them it was all Hugo damage."

Based on this evidence, we find that more than a...