Martin v. Pope

• Citation: 811 S.E.2d 191,257 N.C.App. 641
• Decision Date: 06 February 2018
• Docket Number: No. COA17-389,COA17-389
• Parties: Anthony V. MARTIN, and Wife, Sherry H. Martin, Plaintiffs, v. Mack Devaughn POPE, Defendant.
• Court: Court of Appeal of North Carolina (US)

257 N.C.App. 641

811 S.E.2d 191

Anthony V. MARTIN, and Wife, Sherry H. Martin, Plaintiffs,

v.Mack Devaughn POPE, Defendant.

No. COA17-389

Court of Appeals of North Carolina.

Filed: February 6, 2018

The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr., Smithfield, and L. Lamar Armstrong, III, for plaintiffs-appellees.

Law Offices of F. Bryan Brice, Jr., Raleigh, by Matthew D. Quinn, for defendant-appellant.

DIETZ, Judge.

Defendant Mack Pope appeals from a judgment finding him liable for concealing environmental contamination on property he sold to Plaintiffs Anthony and Sherry Martin.

As explained below, the bulk of Pope's arguments, which concern the statute of limitations and sufficiency of the evidence, are not preserved for appellate review because Pope failed to assert those issues in a directed verdict motion at the close of all the evidence at trial.

Pope's challenge to the trial court's answer to a jury question during deliberations likewise is barred because Pope initially consented to that answer and only objected after the jury resumed deliberations. His objection is therefore barred by the invited error doctrine.

Pope's challenges to the denial of leave to assert third-party claims and to disqualify the Martins' counsel are reviewed for abuse of discretion. As explained below, we hold that the trial court's rulings on those issues were the product of reasoned decisions and thus within the trial court's sound discretion.

The Martins also cross-appealed, challenging the denial of their motion for attorneys' fees. But despite filing a cross-appeal, the Martins did not file an appellants' brief, instead including their argument in their appellees' brief. Because the lack of an appellants' brief prejudiced Pope, we deem this issue abandoned on appeal. Accordingly, we affirm the trial court's judgment.

Facts and Procedural History

The jury in this proceeding returned a verdict in favor of Plaintiffs Anthony and Sherry Martin and we therefore recite the relevant facts in the light most favorable to the Martins. We acknowledge that Defendant Mack Pope disputed many of these facts at trial.

In July 2004, Pope purchased property in Dunn from Royster-Clark, Inc. At the time, Pope received an environmental report of the property, which stated that the property had "recognized environmental conditions." Pope then leased the property to Agrium U.S. Inc.

In December 2007, Pope hired an environmental expert to conduct a limited environmental assessment, which did not include any groundwater testing. The report concluded that, "In review of the information as described herein regarding activities on and adjacent to the subject property, no physical evidence was discovered indicating ongoing negative environmental impacts to the subject property."

Between late 2007 and early 2008, Pope contracted to sell the property to a third party. The sale eventually fell through when the purchaser requested an extensive environmental report that included groundwater testing. That testing identified contaminants well above the legal limit.

In 2008, Anthony Martin expressed an interest in buying the property after learning that it was for sale. At a later meeting, in response to Mr. Martin's question regarding the current state of the property, Pope indicated that the property was "clean" and that it had no environmental risks or problems and provided Mr. Martin with a copy of the more limited 2007 environmental report. Pope did not provide Mr. Martin with the 2008 report that found environmental contamination. On 20 March 2009, Pope sold the property to the Martins for $500,000.

In early 2013, the Martins agreed to sell the property to a new buyer for $800,000. Before the closing date, a loan officer for the purchaser discovered that the property was listed on a hazardous waste site list maintained by our State's environmental protection agency. After being advised of the status of the property, the Martins' attorney obtained a copy of the 2008 report and informed the buyer's attorney. The sale then fell apart.

The Martins later sued Pope for fraud and unfair and deceptive trade practices based on Pope's alleged concealment of the environmental contamination on the property. The jury returned a verdict in the Martins' favor on their claims and awarded both compensatory and punitive damages. The trial court later denied Pope's motion for JNOV or, alternatively, for a new trial. The trial court also denied the Martins' request for attorneys' fees. Pope timely appealed the judgment and the denial of his corresponding post-trial motions, and the Martins timely appealed the denial of their motion for attorneys' fees.

Analysis

We begin by addressing Pope's challenges to the verdict and various pre-trial and trial rulings. We then turn to the Martins' appeal from the denial of their request for attorneys' fees.

I. Denial of Pope's motion for JNOV

We first address Pope's challenge to the denial of his motion for JNOV. Pope argues that the Martins' claims are barred by the statute of limitations and that there was insufficient evidence that he made any false representations; insufficient evidence that the Martins reasonably relied on those representations; and insufficient evidence that the Martins suffered any damages as a result. For all of these reasons, Pope argues that the trial court should have granted his JNOV motion and set aside the verdict as a matter of law.

We cannot address these arguments because Pope waived them. A JNOV motion is "essentially a renewal of a motion for directed verdict." Barnard v. Rowland , 132 N.C. App. 416, 421, 512 S.E.2d 458, 463 (1999). As a result, a JNOV motion "must be preceded by a motion for directed verdict at the close of all evidence." Id . Indeed, the official comment accompanying Rule 50 of our Rules of Civil Procedure, which governs the procedure for both directed verdict motions and JNOV motions, emphasizes that a directed verdict motion is an "absolute prerequisite" to a JNOV motion. N.C. Gen. Stat. § 1A-1, Rule 50, cmt.

Moreover, it is well-settled that to preserve the ability to assert a JNOV motion, a litigant must move for a directed verdict at the close of all the evidence, not merely at the close of the plaintiff's case. Gibbs v. Duke , 32 N.C. App. 439, 442, 232 S.E.2d 484, 486 (1977). This is so because, once defendants have presented their own case, the evidence in the trial record has changed. Although defendants during their own case in chief typically are focused on presenting evidence that disproves the plaintiff's allegations, through cross-examination or introduction of exhibits defendants may introduce the very evidence that renders the directed verdict improper.

For this reason, our Court repeatedly has held that "[b]y offering their own evidence, defendants waived their motion for a directed verdict made at the close of plaintiffs' evidence and, in order to preserve the question of the sufficiency of the evidence for appellate review, they were required to renew this motion at the close of all the evidence." Cannon v. Day , 165 N.C. App. 302, 305–06, 598 S.E.2d 207, 210 (2004). This rule also is followed by the federal courts and our sister states. See , e.g. , Miller v. Premier Corp. , 608 F.2d 973, 979 n.3 (4th Cir. 1979) ; Mathieu v. Gopher News Co. , 273 F.3d 769, 776 (8th Cir. 2001) ; Kimbrough v. Commonwealth , 550 S.W.2d 525, 529 (Ky. 1977) ; State v. Hepburn , 406 S.C. 416, 753 S.E.2d 402, 410 (2013).

Here, Pope concedes that, although he moved for a directed verdict at the close of the Martins' case, he did not renew that motion at the close of all the evidence. We are bound by our precedent holding that a JNOV motion must be preceded by a motion for directed verdict at the close of all the evidence; thus, we must hold that Pope's JNOV arguments are waived on appeal.

We acknowledge that this is a harsh outcome. But our precedent contains many examples of litigants who sought to raise what they believed to be meritorious JNOV arguments on appeal, only to have those arguments deemed waived for failure to make an appropriate motion for directed verdict. See Gibbs , 32 N.C. App. at 442, 232 S.E.2d at 486 ; Overman v. Products Co. , 30 N.C. App. 516, 520, 227 S.E.2d 159, 162 (1976) ; Plasma Ctrs. Of Am., LLC v. Talecris Plasma Res., Inc. , 222 N.C. App. 83, 88, 731 S.E.2d 837, 841 (2012).

The public, and other jurisdictions that may be called on to recognize our State's court judgments, expect our courts to apply procedural rules uniformly to all litigants who appear before them. Thus, although we recognize that justice is best served when this Court reaches the merits of the underlying issues raised on appeal, we are obligated to enforce this well-settled procedural rule and hold that Pope's JNOV arguments are waived.

II. Denial of Pope's motion for new trial

Pope next argues that the trial court erred by failing to grant his motion for a new trial. Pope acknowledges that, ordinarily, we review the denial of a Rule 59 motion for abuse of discretion and "a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge." Worthington v. Bynum , 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). But Pope argues that his Rule 59 motion involves questions of "law and legal inference" and that this Court should apply de novo review.

The cases on which Pope relies for asserting a de novo standard of review involve trial courts acting under a misapprehension of the law. See , e.g. , Chiltoski v. Drum , 121 N.C. App. 161, 165, 464 S.E.2d 701, 704 (1995). The task of determining whether Pope asserted arguments similar to those in Chiltoski is hamstrung by the fact that the key page of Pope's Rule 59 motion—the page containing most of the grounds on which he sought a new trial—is not in the record on appeal....