Suggs v. Carroll, 8513SC79

Citation76 N.C.App. 420,333 S.E.2d 510
Decision Date03 September 1985
Docket NumberNo. 8513SC79,8513SC79
PartiesLizzie R. SUGGS, Individually, Thomas K. Suggs and Clara S. Watts, Attorneys in Fact for Lizzie R. Suggs v. Alma CARROLL, Lucille S. Inman, and Phyllis Long.
CourtCourt of Appeal of North Carolina (US)

Marvin J. Tedder and Lee, Lee & Meekins by Fred C. Meekins, Jr., Whiteville, for plaintiffs-appellees.

McGougan, Wright & Worley by O. Richard Wright, Jr., Tabor City, for defendants-appellants.

HEDRICK, Chief Judge.

Defendants first assign error to the denial of their oral motion to continue the case because of the unavailability of one of the defendants at the beginning of the trial. It is a well-established rule in North Carolina that granting a motion for a continuance is within the discretion of the trial court. Continuances are not favored, and the party seeking a continuance bears the burden of showing sufficient grounds. Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976). The record in the present case discloses that when the case was called for trial defendants made a motion to continue because defendant Alma Carroll would not be available at the beginning of the trial. The record also discloses that Mrs. Carroll's attorney was aware of the conflict some four weeks prior to trial, no affidavit in support of the motion to continue was submitted to the court, and Mrs. Carroll did appear and testify late in the afternoon of the second day of trial. We hold that defendants have failed to show any substantial prejudice to their rights. This assignment of error is without merit.

Defendants next assign error to the trial court's admission of testimony by several witnesses in the form of an opinion as to the competence of Lizzie Suggs. The testimony regarding competence, admissible or not, is irrelevant to the dispositive issue of whether a trespass occurred. Additionally, the abuse of process claim was dismissed at the close of plaintiff's evidence. Because this claim was decided in defendants' favor, the disputed testimony is clearly non-prejudicial.

Defendants next assign error to the trial court's admission of plaintiff Thomas Suggs' testimony regarding the content of the tape recording. Defendants argue that Thomas Suggs did not have direct personal knowledge of the contents of the tape since part of it was made in his absence. The record discloses that Thomas Suggs had earlier heard the tape during the competency hearing. Thus he had the requisite first-hand knowledge to testify as to its contents. This assignment of error is without merit.

Defendants next assign error to the denial of their motions for a directed verdict and for judgment notwithstanding the verdict. Their first argument is that the evidence is not sufficient to support the verdict that defendants wrongfully trespassed on the property of plaintiff. "Any unauthorized entry on land in the actual or constructive possession of another constitutes a trespass, irrespective of degree of force used or whether actual damage is done." Keziah v. R.R., 272 N.C. 299, 311, 158 S.E.2d 539, 548 (1968). In the present case there is evidence that plaintiff was in actual possession of the house when defendants came to visit her. Defendants contend that they cannot be trespassers because their entry was authorized. They note that their entry was "in the usual routine manner" and that no trouble began until sometime after they entered the house. Our Supreme Court has held that

[e]ven if the entry is peaceable, or by the express or implied invitation of the occupant, still if after coming upon the premises the defendant uses violent and abusive language and does acts which are calculated to produce a breach of the peace ..., he is guilty of forceable trespass, because although not a trespasser in the beginning, he becomes a trespasser as soon as he puts himself in open opposition to the occupant of the premises.

Anthony v. Protective Union, 206 N.C. 7, 11, 173 S.E. 6, 8 (1934). When the evidence is considered in the light most favorable to plaintiff, it is clearly sufficient to permit the jury to find, as it did, that defendants wrongfully trespassed on the property of plaintiff. Although defendants' initial entry was peaceful, they became trespassers when they refused to leave after plaintiff specifically requested they do so. This argument is without merit.

Defendants next argue that the evidence is not sufficient to permit the jury to find, as it did, that plaintiff suffered any injury entitling her to compensatory damages. In Hatchell v. Kimbrough, 49 N.C. 163, 165 (1856), our Supreme Court held that a plaintiff could properly recover for "any consequence which naturally flows from an unlawful act...." Justice Pearson in writing for the majority stated that "As the loss of the plaintiff's eye is found by the jury to have been the direct and immediate consequence of [defendants' trespass], it was clearly proper that it should be considered in aggravation of damages." Id. (Citation omitted.) It is also the rule that in a successful claim for wrongful trespass the plaintiff is entitled to nominal damages at least. Lee v. Lee, 180 N.C. 86, 104 S.E. 76 (1920). In the present case since we have held that the evidence is sufficient to support the jury's verdict on wrongful trespass, it follows that plaintiff is entitled to at least nominal damages. However, we must examine the evidence to see if it is sufficient to support the $1,200 award for compensatory damages. Resolution of this question depends on whether there is sufficient evidence to enable the jury to find that plaintiff suffered any injury whatsoever. Our Supreme Court noted in Gillikin v. Burbage 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965), that "[w]here a layman can have no well-founded knowledge and can do no more than indulge in mere...

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