Smith v. Price

• Court: North Carolina Court of Appeals
• Writing for the Court: EAGLES
• Citation: Smith v. Price, 328 S.E.2d 811, 74 N.C.App. 413 (N.C. App. 1985)
• Decision Date: 07 May 1985
• Docket Number: No. 8421DC764,8421DC764
• Parties: Georganne SMITH v. William George PRICE.

Page 811

328 S.E.2d 811

74 N.C.App. 413

Georganne SMITH v. William George PRICE.

No. 8421DC764.

Court of Appeals of North Carolina.

May 7, 1985.

Pettyjohn and Molitoris by Anne Connolly, Winston-Salem, for plaintiff-appellee.

David B. Hough, Winston-Salem, for defendant-appellant.

EAGLES, Judge.

I

In his first assignment of error, defendant contends that the trial court should not have entertained plaintiff's motion for judgment n.o.v. because plaintiff had not made the prerequisite motion for directed verdict in accordance with the North Carolina Rules of Civil Procedure. G.S. 1A-1, Rule 50. Defendant correctly notes that a directed verdict made at the close of the evidence is an absolute prerequisite to a motion for judgment n.o.v. Gibbs v. Duke, 32 N.C.App. 439, 232 S.E.2d 484 disc. rev. denied, 292 N.C. 640, 235 S.E.2d 61 (1977); Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). Rule 50(a) provides that "[a] motion for a directed verdict shall state the specific grounds therefore." Because plaintiff's counsel indicates that the directed verdict motion was made "for record purposes only," because no specific grounds were stated, and because counsel for plaintiff chose not to argue it, defendant contends that the motion was not a proper motion under Rule 50(a) and that the later motion for judgment n.o.v. was thus not properly before the trial court. This contention is without merit.

Although plaintiff raised three issues in her complaint--paternity, custody and support--only the paternity issue was before the jury. Searcy v. Justice, 20 N.C.App. 559, 202 S.E.2d 314 (1974), cert. denied, 285 N.C. 235, 204 S.E.2d 25 (1974). Defendant had raised by counterclaim the issue of fraud. When plaintiff made her motion, evidence had been presented only on these two issues. Obviously, the paternity issue had to be decided before the court could decide the issue of fraud. Just as obviously, it was the paternity issue that was the focus of plaintiff's motion. Counsel indicated as much when the motion was made. The obvious, if unstated, grounds for plaintiff's motion, as with any directed verdict motion made by a party with the burden of proof, was that the evidence established the fact in issue so clearly that no inference to the contrary could be drawn by a jury. Snipes v. Snipes, 55 N.C.App. 498, 286 S.E.2d 591, aff'd per curiam, 306 N.C. 373, 293 S.E.2d 187 (1982). While the better practice is to state specific grounds for a directed verdict motion, it is not necessary where, as here, the issue is identified and the grounds for the motion are apparent to the court and the parties. Humphrey v. Hill, 55 N.C.App. 359, 285 S.E.2d 293 (1982). Even if the grounds were not apparent, we note that defendant waived his objection to the form of the motion by failing to note an objection at trial. Id.; Byerly v. Byerly, 38 N.C.App. 551, 248 S.E.2d 433 (1978). Plaintiff's motion for judgment n.o.v. was properly entertained by the trial court and defendant's first contention is without merit.

II

The same grounds, more specifically stated, were raised in plaintiff's written motion for judgment n.o.v. That motion read in part as follows:

5. This verdict and the judgment entered thereon should be set aside for the following reasons:

a. That while the plaintiff has burden of proof, plaintiff's right to judgment is established by defendant's evidence and her right of judgment, therefore, does not depend upon the credibility of her witnesses;

b. That an examination of all of the evidence demonstrates that there is no conclusion to be drawn other than that the defendant is the father of plaintiff's child, William George Price, and, therefore, there is no genuine issue of fact.

In his second assignment of error, defendant contends that the court erred in allowing plaintiff's motion for judgment n.o.v. His argument is twofold: first, he argues that the pertinent statute, G.S. 49-14, imposes a heavy burden of proof on the plaintiff in that it requires that paternity be established beyond a reasonable doubt; second, he argues that a motion for judgment n.o.v. likewise puts a heavy burden on the plaintiff, requiring her to establish the fact in issue as a matter of law, leaving no room for doubt as to defendant's paternity of the child. By either standard, defendant contends that plaintiff's evidence was insufficient and that her motion for judgment n.o.v. should not have been allowed. We disagree.

A motion for judgment n.o.v. is essentially a renewal of a motion for directed verdict, Harvey v. Norfolk Southern Ry., 60 N.C.App. 554, 299 S.E.2d 664 (1983), and the same standards govern the trial court's consideration of it as for a directed verdict motion. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). Those standards are clearly established in our law.

A motion for judgment notwithstanding the verdict presents the question of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. Hunt v. Montgomery Ward and Co., Inc., 49 N.C.App. 642, 272 S.E.2d 357 (1980). The evidence must be considered in the light most favorable to the party opposing the motion, and the opponent is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts in the evidence are resolved in favor of the opponent. Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981).

Morrison v. Kiwanis Club, 52 N.C.App. 454, 462, 279 S.E.2d 96, 101, disc. rev. denied, 304 N.C. 196, 285 S.E.2d 100 (1981). This assignment of error raises the issue of whether a judgment n.o.v. in favor of the party with the burden of proof is appropriate, especially where the proof depends in part on the credibility of witnesses.

Ordinarily, the question of credibility is one for the jury and, where the movant's case depends to any extent on witness credibility, a directed verdict or judgment n.o.v. is rarely proper. See, e.g., Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971); Stutts v. Green Ford, 47 N.C.App. 503, 267 S.E.2d 919 (1980); Ludwig v. Hart, 40 N.C.App. 188, 252 S.E.2d 270 disc. rev. denied, 297 N.C. 454, 256 S.E.2d 807 (1979). It used to be the rule that a directed verdict was never proper in those circumstances. Cutts v. Casey, supra. However, our Supreme Court pointed out in NCNB v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979), that there is no constitutional or procedural impediment to granting a directed verdict in favor of the party with the burden of proof when the credibility of the movant's witnesses was "manifest as a matter of law." Id. at 537, 256 S.E.2d at 396. Although unable to formulate a general rule, the court noted three "recurrent situations" where the credibility of a movant's evidence was manifest:

(1) Where non-movant establishes proponent's case by admitting the truth of the basic facts upon which the claim of proponent rests. [Citations.]

(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents. [citations.]

(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has "failed to point to specific areas of impeachment and contradictions."

Id. at 537-38, 256 S.E.2d at 396, quoting Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976). Especially where credibility is concerned, the distinction between issues of law and issues of fact is difficult to draw precisely. "[W]hile credibility is generally for the jury, courts set the outer limits of it by preliminarily determining whether the jury is at liberty to disbelieve the evidence presented by movant." Id. 297 N.C. at 538, 256 S.E.2d at 396. See generally, 9 Wright and Miller, Federal Practice and Procedure, Section 2535 (1971 and Supp.1983); Note, 16 Wake Forest L.Rev. 607 (1980).

Though the NCNB v. Burnette court speaks of three situations where the credibility of a movant's evidence may be manifest, those situations are not limitations, merely observations drawn from reported cases. The evidence in this case does not fit neatly into any one of the three situations noted in NCNB v. Burnette. It is nevertheless manifestly credible in our opinion.

Most of the evidence in this case is not in dispute. Though his response denies it, defendant admitted at trial that he had sexual relations with plaintiff three times over the weekend of 20 and 21 February 1981 and again on 1 March 1981. He did not use any birth control method and did not ascertain whether plaintiff was using any birth control method before having sex with her. A nine pound, one ounce healthy baby was born to plaintiff nearly nine months later. Defendant's own expert, Dr. Meis, expressed his opinion on cross examination that plaintiff's baby was probably full term. He performed a standard gestation period calculation, based on plaintiff's testimony regarding her menstrual cycle and assuming sexual contact on 20 February 1981, that put an estimated date of birth at 11 November 1981, only two days later than plaintiff's child was actually born. Plaintiff's uncontradicted testimony was that defendant was the only man with whom she had sexual contact between December 1980 and late March 1981, when her tests revealed she was pregnant. Blood grouping tests performed on plaintiff, defendant, and the child showed a high probability that defendant was the father.

Clearly, plaintiff in this case is an interested witness and her testimony would ordinarily be subject to question on that ground. By his own testimony, however, defendant corroborates most of plaintiff's testimony and refutes none of it. He does not point to specific inconsistencies in plaintiff's evidence nor does he attempt to impeach her expert witness. Defendant does not question the authenticity of the document showing the results of the blood test. He does not pursue or support with any authority the questions he purports to raise...