Overton v. Purvis

• Decision Date: 20 January 2004
• Docket Number: No. COA01-1520-2.,COA01-1520-2.
• Court: North Carolina Court of Appeals
• Parties: Richard Allen OVERTON, Plaintiff, v. William Robert PURVIS, Defendant.

591 S.E.2d 18

162 NC App. 241

Richard Allen OVERTON, Plaintiff, v. William Robert PURVIS, Defendant.

No. COA01-1520-2.

Court of Appeals of North Carolina.

January 20, 2004.

The Blount Law Firm, P.L.L.C., by Marvin K. Blount, III, Greenville, for plaintiff-appellee.

Walker, Clark, Allen, Grice & Ammons, L.L.P., by Jerry A. Allen and Gay P. Stanley, Goldsboro, for defendant-appellant.

EAGLES, Chief Judge.

This case arises from judgment entered for plaintiff in a negligence action stemming from an automobile accident involving a pedestrian. Since a detailed summary of the facts giving rise to this appeal is set forth in our previous opinion, Overton v. Purvis, 154 N.C.App. 543, 573 S.E.2d 219 (2002), only a brief synopsis of the pertinent facts is required to provide context for the issues to be considered.

The evidence tended to establish that on 7 September 1996, while fox hunting with friends near Falkland, North Carolina, plaintiff entered and stood in the middle of Highway 222 to protect hunting dogs that were crossing the road in pursuit of a fox. While standing in the road, plaintiff saw defendant's truck round a bend in the road approximately 1000 feet away. Plaintiff remained in the road, first just watching defendant as he approached and later, waving his hands to get defendant's attention when it appeared defendant was not slowing down. Plaintiff remained in the roadway until defendant's truck was approximately 100-150 feet from him. Plaintiff was struck by defendant's truck as he attempted to get out of the roadway.

On appeal, defendant presented the following issues for review: (I) whether the trial court erred by instructing the jury on the doctrine of last clear chance; (II) whether the trial court erred by denying defendant's request for an instruction on the doctrine of sudden emergency; (III) whether the trial court erred by denying defendant's motion for judgment notwithstanding the verdict or for a new trial; (IV) whether the trial court erred by denying plaintiff's motion for additur; and (V) whether the trial court erred by awarding plaintiff costs and attorneys' fees. We now consider defendant's remaining assignments of error.

I.

Defendant first contends that the trial court erred by instructing the jury on the doctrine of last clear chance. Defendant argues that neither the first nor the third elements required to invoke the doctrine of last clear chance were sufficiently established. Although this Court's previous opinion only analyzed the sufficiency of the evidence to support the first element, our Supreme Court concluded that the issue of last clear chance was properly submitted to the jury in this case. See Overton v. Purvis, 357 N.C. 497, 586 S.E.2d 265 (2003). See also Overton v. Purvis, 154 N.C.App. 543, 573 S.E.2d 219 (2002)(THOMAS, J. dissenting). Accordingly, these assignments of error are overruled.

II.

Defendant next contends that the trial court erred by denying his request for an instruction on the doctrine of sudden emergency. We disagree.

Before an instruction on the doctrine of sudden emergency may be given, the party asserting the doctrine must present substantial evidence of two elements: (1) that an emergency situation existed; and (2) that the emergency was not created by the negligence of the party seeking the doctrine's protection. Long v. Harris, 137 N.C.App. 461, 467, 528 S.E.2d 633, 637 (2000). "In determining whether the substantial evidence test has been satisfied, `the evidence must be considered in the light most favorable' to the party requesting the benefit of the instruction." Id. (quoting Holbrook v. Henley, 118 N.C.App. 151, 153, 454 S.E.2d 676, 678 (1995)).

Here, defendant testified that he first saw the hunters' vehicles parked along the side of the road when he was approximately 500 feet away from the accident scene. Defendant also saw Jay Womble, standing on the right side of the road, waving his arms "for [defendant] to stop." Although defendant could have stopped when he saw Jay Womble, he did not; instead, defendant "got over just a little bit," and proceeded on to the point where he ultimately struck plaintiff, who was standing in the road. In light of this evidence, we conclude that defendant failed to establish the second element required for an instruction on sudden emergency, i.e., that the emergency was not created by defendant's own negligence. Accordingly, the trial court properly denied defendant's request for the instruction.

III.

Defendant next contends that the trial court erred by denying his motions for judgment notwithstanding the verdict and, in the alternative, for a new trial, based on the trial court's erroneous instruction on the issue of last clear chance. We disagree.

"On appeal our `standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict; that is, whether the evidence was sufficient to go to the jury.'" Whitaker v. Akers, 137 N.C.App. 274, 277, 527 S.E.2d 721, 724 (2000) (citation omitted). "[A] motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion. However, where the motion involves a question of law or legal inference, our standard of review is de novo." Kinsey v. Spann, 139 N.C.App. 370, 372, 533 S.E.2d 487, 490 (2000) (citation omitted).

Here, our Supreme Court has already determined that the issue of last clear chance was properly submitted to the jury in this case. See Overton v. Purvis, 357 N.C. 497, 586 S.E.2d 265 (2003). Therefore, we conclude the trial court properly denied defendant's motions for judgment notwithstanding the verdict and for a new trial.

IV.

Defendant next contends that the trial court erred by denying plaintiff's motion for additur. We disagree.

After the jury returned its verdict ($7,000), plaintiff moved pursuant to N.C. R. Civ. P. 59 for additur or, in the alternative, for a new trial on the issue of damages. In his response to plaintiff's motion, defendant consented to increasing the jury's verdict to $10,564.05; payment of pre- and post-judgment interest in the amount of $1,690.24; and payment of costs in the amount of $2,439.61. The trial court concluded that "the jury verdict [wa]s adequate" and denied plaintiff's motion.

As a preliminary matter, we note that this Court has subject matter jurisdiction over this issue. While the general rule is that "[o]nly a `party aggrieved' has a right to appeal[,] ... [a] `party aggrieved' is one whose legal rights have been denied or directly and injuriously affected by the action of the trial court." Selective Ins. Co. v. Mid-Carolina Insulation Co., 126 N.C.App. 217, 219, 484 S.E.2d 443, 445 (1997) (citation omitted). Here, although the denial of plaintiff's motion for additur was initially favorable to defendant, the end result was that defendant ultimately became liable for payment of $32,120.00 in attorneys' fees. See G.S. § 6-21.1 (attorneys' fees may be taxed as costs where the judgment for recovery of damages is ten thousand dollars or less). Since defendant's rights have been directly and injuriously affected by the decision of the trial court, this Court has jurisdiction to consider this issue.

"A ruling on a motion for additur or remittitur is within the discretion of [the] trial judge." Lazenby v. Godwin, 40 N.C.App. 487, 496, 253 S.E.2d 489, 493 (1979). "[W]hen rulings are committed to the sound discretion of the trial court[,] they will be accorded great deference and will not be set aside unless it can be shown that they were arbitrary and not the result of a reasoned decision." Albritton v. Albritton, 109 N.C.App. 36, 42, 426 S.E.2d 80, 84 (1993). "The appellate courts will not supervise the lower court's judgment except in `extreme circumstances.'" Lazenby, 40 N.C.App. at 496, 253 S.E.2d at 494 (quoting Setzer v. Dunlap, 23 N.C.App. 362, 363, 208 S.E.2d 710, 711 (1974)).

Here, defendant argues that his consent to the additur establishes an abuse of the trial court's discretion. We are unpersuaded. Careful review of the record reveals that the trial court made its decision only after considering plaintiff's motion, defendant's response and arguments of both counsel. As nothing in the record before us indicates an abuse of discretion, we conclude the trial court properly denied plaintiff's motion for additur.

V.

Defendant's final contention is that the trial court erred by awarding plaintiff costs and attorneys' fees. We affirm in part and reverse in part.

The determination to award counsel fees is a matter within the discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. Thorpe v. Perry-Riddick, 144 N.C.App. 567, 570, 551 S.E.2d 852, 855-56 (2001). However,

[t]he discretion accorded the trial court in awarding attorney fees ... is not unbridled.... [T]he trial court is to consider the entire record in properly exercising its discretion, including but not limited to the following factors: (1) settlement offers made prior to the institution of the action...; (2) offers of judgment pursuant to Rule 68, and whether the "judgment finally obtained" was more favorable than such offers; (3) whether defendant unjustly exercised "superior bargaining power"; (4) in the case of an unwarranted refusal by an insurance company, the "context in which the dispute arose[]"; (5) the timing of settlement offers; (6) the amounts of the settlement offers as compared to the jury verdict; and the whole record.

Washington v. Horton, 132 N.C.App. 347, 351, 513 S.E.2d 331, 334-35 (1999) (citations omitted).

"If the trial court elects to award attorney fees, it must also enter findings of fact as to the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence." Thorpe, 144 N.C.App. at 572, 551 S.E.2d at 856. "The scope of appellate review is strictly...