Smith v. White

• Decision Date: 05 July 2011
• Docket Number: No. COA10–1042.,COA10–1042.
• Citation: 712 S.E.2d 717
• Parties: Michael George SMITH, Plaintiff,v.Grady Lee WHITE, Defendant.
• Court: North Carolina Court of Appeals

712 S.E.2d 717

Michael George SMITH, Plaintiff,

v.Grady Lee WHITE, Defendant.

No. COA10–1042.

Court of Appeals of North Carolina.

July 5, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiff from judgment entered 21 January 2010 by Judge Yvonne Mims Evans in Cleveland County Superior Court. Heard in the Court of Appeals 25 January 2011.

The Law Offices of Jason E. Taylor, P.C., by Jason E. Taylor, for plaintiff-appellant.

McAngus, Goudelock & Courie, PLLC, by Heather G. Connor and Jeffrey B. Kuykendal, for defendant-appellee.

BRYANT, Judge.

Because the trial court's order awarding plaintiff a new trial due to an error at law occurring during trial was appropriate, we affirm. Where plaintiff prevails at trial on the issue of contributory negligence, plaintiff's appeal of this issue is dismissed. Because the trial court did not abuse its discretion in finding that the jury verdict, which benefitted plaintiff, was not a compromise verdict, we affirm the trial court's denial of plaintiff's motion for a new trial. Finally, where defendant was entitled to an award of costs under Rule 68(a), the trial court did not abuse its discretion in awarding costs to defendant.

Facts and Procedural History

Plaintiff and defendant were involved in an automobile accident on 19 September 2007. Plaintiff, who was driving a motorcycle, alleged that defendant made a left turn in front of him, causing the accident. Plaintiff suffered personal injuries as a result of this collision. Plaintiff's motorcycle was also damaged, requiring repairs.

Plaintiff brought suit against defendant on 2 April 2008 alleging that defendant's negligence caused the accident. On 22 May 2008, defendant answered, asserting as an affirmative defense that plaintiff's contributory negligence resulted in the collision. Plaintiff replied pleading that defendant had the last clear chance to avoid the accident.

Defendant paid for the repairs to plaintiff's motorcycle. However, in a pretrial motion in limine, defendant sought to exclude evidence of the cost of repairs to the motorcycle. Over plaintiff's objection the trial court granted defendant's motion, ruling that only the damage to the motorcycle and the work necessary to repair it were relevant issues for the jury.

On 21 January 2009, the jury returned a verdict finding defendant negligent in causing the accident. Plaintiff was found not liable under the doctrine of contributory negligence. In addition, the jury found that plaintiff's motorcycle had not sustained a diminution in value.

On 1 February 2009, plaintiff filed a Rule 59 motion for a new trial. Plaintiff's motion alleged that the trial court committed an error of law by not allowing evidence of the cost of repair to go to the jury, that there was insufficient evidence to justify the verdict finding no diminution in value to the motorcycle, and that the verdict was contrary to law with respect to the issue of property damage.

On 26 February 2010, judgment was entered awarding plaintiff $6,335.00 in medical costs. On 19 March 2010, an amended judgment was entered retaining plaintiff's award of medical costs and granting defendant recovery of costs from plaintiff in accord with Rule 68.

Also, on 19 March 2010, the trial court granted in part plaintiff's motion for a new trial only as to diminution in value. Plaintiff's motion on all other grounds was denied.

Plaintiff and defendant both appeal.

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Defendant's Appeal

On appeal, defendant argues that (I) the trial court erred in granting plaintiff's Rule 59 motion for a new trial.

I.

Defendant argues that the trial court erred in setting aside the jury verdict and granting plaintiff a new trial on the issue of diminution in value. We disagree.

According to Rule 59, a new trial may be granted for the reasons enumerated in the Rule. By using the word may, Rule 59 expressly grants the trial court the discretion to determine whether a new trial should be granted. Generally, therefore, the trial court's decision on a motion for a new trial under Rule 59 will not be disturbed on appeal, absent abuse of discretion. [This Court] recognize[s] a narrow exception to the general rule, applying a de novo standard of review to a motion for a new trial pursuant to Rule 59(a)(8), which is an error in law occurring at the trial and objected to by the party making the motion.

Kor Xiong v. Marks, 193 N.C.App. 644, 654, 668 S.E.2d 594, 601 (2008) ( citing Greene v. Royster, 187 N.C.App. 71, 77–78, 652 S.E.2d 277, 282 (2007)); see also Philco Finance Corp. v. Mitchell, 26 N.C.App. 264, 266–67, 215 S.E.2d 823, 824–25 (1975). Because the trial court's decision to grant a new trial was based on an “error in law occurring at the trial and objected to by the party making the motion,” we review the trial court's ruling de novo. See N.C. Gen.Stat. § 1A–1, Rule 59(a)(8) (2011).

At trial in the instant case plaintiff claimed that his motorcycle suffered a diminution in value due to the accident, despite repairs to the motorcycle. Upon defendant's objection the trial court excluded evidence of the actual cost to repair plaintiff's motorcycle. After hearing post-trial motions by plaintiff and defendant the trial court, citing U.S. Fidelity & Guaranty Co. v. P. & F. Motor Express, Inc., 220 N.C. 721, 18 S.E.2d 116 (1942), concluded that evidence regarding the cost of repairs should not have been excluded and granted plaintiff a new trial on the issue of diminution in value.

In U.S. Fidelity our Supreme Court granted the defendant a new trial after holding that the trial court erred in excluding evidence concerning the costs of repairing the plaintiff's vehicle. Id. Herein, we quote Fidelity at length because we agree, as did the trial court, that Fidelity is dispositive of this issue.

It is a well settled rule with us, and in other jurisdictions, that the measure of damage for injury to personal property is the difference between the market value of the property immediately before the injury and the market value immediately after the injury.

The authorities are in conflict upon whether the cost of repairing injured property is competent evidence of the difference between the market value before and after the injury. The authorities which have been brought to our attention are cases in which the repairs have been actually made and the amount paid therefor was sought to be shown in order to establish the difference in market value, and in these cases we find the weight of authority in favor of the admissibility of such evidence. However, in the case at bar the evidence offered was not of the actual cost paid for repairing, but of an estimate of the cost thereof. The estimate sought to be shown was that of the “foreman of the repair shop of the City Chevrolet Company,” who “examined the automobile ... which was damaged ... and made an estimate of the cost of repairing that car.” While evidence of such an estimate of the cost of repairs might not be as convincing as evidence of the cost of the actual repairs, we think this difference relates to the weight thereof rather than to its competency—and the weight of evidence is for the jury, while the admissibility of evidence is for the court. This thought was evidently in the mind of Justice Allen when he wrote: “The correct and safe rule is the difference between the value of the machine before and after its injury, and in estimating this difference it is proper for the jury to consider the cost and expenses of repairs ...”

Id. at 722–23, 18 S.E.2d at 117 (internal citations omitted).

Defendant argues that the trial court erred in granting plaintiff's motion for a new trial based on the prior exclusion of evidence of cost of repairs because defendant had already paid for the repairs. Defendant vainly attempts to distinguish Fidelity from the instant case because the defendant in Fidelity attempted to elicit testimony regarding the estimated cost of repair.

Defendant argues that because plaintiff's repairs had been paid for prior to trial proceedings, Fidelity is not applicable. However, defendant fails to acknowledge that the Fidelity court, in discussing the conflict regarding whether cost of repair is competent evidence of market value of property before and after injury, found that “the weight of authority [is] in favor of the admissibility of such evidence.” Id. at 723, 18 S.E.2d at 117. Therefore, the issue before the Fidelity Court was whether evidence of estimated cost of repair, as opposed to actual cost of repair already paid, should be admitted. As to that issue, the Court stated even though “evidence of such an estimate of the cost of repairs might not be as convincing as evidence of the cost of the actual repairs, we think this difference relates to the weight thereof rather than to its competency.” Id. at 723, 18 S.E.2d at 117. The Court made clear that where repairs have been made and paid for, such evidence is admissible to show the measure of damages.

While the general rule is that the measure of damages in respect of an injured automobile is the difference in its value immediately before and immediately after the injury, this measure may be established by showing the reasonable cost of necessary repairs to restore it to its previous condition.

In determining the depreciation in value of a motor vehicle as the result of an injury, the jury may take into consideration the reasonable cost of the repairs made necessary thereby, and the reasonable market value of the vehicle as repaired.

Id. at 723–24, 18 S.E.2d at 117 (internal citations omitted).

Defendant argues in the alternative that, even if the cost of the repairs was relevant, admitting such evidence would permit a jury to award double recovery. Citing Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C.App. 721, 600 S.E.2d 473, (2004), defendant emphasizes that our Court has held that a plaintiff may not recover already-received costs.

In Sprinkle, this Court held that the plaintiff received an impermissible...