Vestal v. Capital Marble Creations, Inc., No. COA08-739 (N.C. App. 2/3/2009)

• Decision Date: 03 February 2009
• Docket Number: No. COA08-739,COA08-739
• Parties: JOSEPH RAND VESTAL, Plaintiff, v. CAPITAL MARBLE CREATIONS, INC. and JESSICA THOMAS WOOD, Defendants.
• Court: North Carolina Court of Appeals

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Unpublished Opinion

JOSEPH RAND VESTAL, Plaintiff, v. CAPITAL MARBLE CREATIONS, INC. and JESSICA THOMAS WOOD, Defendants.

No. COA08-739

Court of Appeals of North Carolina.

Filed February 3, 2009

This case not for publication

Wake County, No. 06 CVD 14269

Appeal by Plaintiff from judgment entered 11 January 2008, and orders entered 15 February 2008 and 22 February 2008, all entered by Judge Jane P. Gray in Wake County District Court. Heard in the Court of Appeals 12 January 2009.

E. Gregory Stott, for Plaintiff-Appellant.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham and Stephanie A. Gaston, for Defendant-Appellees.

BEASLEY, Judge.

Joseph Vestal (Plaintiff) appeals from the denial of his motion for a new trial, and the entry of our order taxing certain costs to Plaintiff. We affirm.

In July 2006 Plaintiff and Jessica Wood (Defendant; with Capital Marble Creations, collectively, Defendants) were involved in an automobile accident in Wake County, North Carolina. In September 2006 Plaintiff filed a lawsuit against Defendants, alleging that the accident was caused by Wood's negligence and seeking damages for personal injuries and property damage. The case was tried before a Wake County jury in January 2008. The evidence may be summarized in relevant part as follows: Plaintiff testified that on 28 July 2006 at about 5:45 a.m. he was driving north on S. Saunders St., towards downtown Raleigh. The northbound side of the road had three travel lanes and a turning lane. Plaintiff wanted to stop at a gas station on the southbound side of the street, near the intersection of S. Saunders and Ileagnes. He moved into the left turn lane at the corner of Ileagnes and S. Saunders. When the red light changed to a green arrow, Plaintiff made a U-turn into the center lane of southbound S. Saunders St. He put on his right turn signal, intending to move to the far right hand lane to enter the gas station, but before he could move from the center lane, Defendant's car struck him from behind. As a result of the collision, Plaintiff was injured and his car was damaged. Plaintiff testified further that when law enforcement officers arrived at the scene of the accident the "cop kept harassing about that [he] was drunk, driving down the wrong side of the road and that it was [his] fault." He "guessed" that he called his employer and his brother after the accident, but did not recall making the calls. When an ambulance arrived, he was taken to Wake Medical Center (WakeMed).

On cross-examination, Plaintiff conceded that WakeMed's medical records stated that Plaintiff told the triage nurse and emergency room physician that he had taken multiple doses of Xanax, a sedative, before the accident. Plaintiff testified that he told hospital personnel he had taken Zantac, not Xanax, and that he was"slurring words" after the accident. Plaintiff did not know why the accident occurred, and did not see Defendant's car before the collision. He admitted to a previous conviction of possession with intent to sell marijuana and cocaine.

Officer C.L. Roberts of the Raleigh Police Department testified that he was on duty during the early morning hours of 28 July 2006. He was dispatched to Ileagnes and S. Saunders shortly before 6:00 a.m. and spoke briefly with Plaintiff before calling an ambulance. He told the jury that "there's a turn signal at certain hours if you're making a left hand turn[.]"

Plaintiff also called John Thompson as a witness. Thompson testified that Plaintiff was his employee and had called him after the accident. When Thompson arrived at the scene, Plaintiff was "kind of a little disoriented" and "wasn't sure of what had just happened[.]"

Dr. Craig Frater, M.D., testified as an expert in emergency medicine. On 28 July 2006 he treated Plaintiff in the WakeMed emergency room. Dr. Frater testified on cross-examination that his medical records stated that Plaintiff "admits to taking benzodiazepines throughout the day yesterday. He states he took multiple Xanax tablets for his personal enjoyment." Dr. Frater told the jury that the effect of Xanax was "very similar to alcohol use." When Dr. Frater was asked on redirect examination whether Plaintiff might have said that he took Zantac rather than Xanax, he said this was "probably not" the case, noting that Plaintiff had separately told both him and the triage nurse that he had taken Xanax. The hospital ordered a urine drug abuse screen, but Plaintiff did not want to provide a urine sample, so it was not done. On re-cross-examination Dr. Frater testified that the emergency room report included in Plaintiff's "current medications" the entry "Xanax from friends."

Defendant Jessica Wood testified that she was part owner of Defendant Capital Marble Creations. Shortly before 6:00 a.m. on 28 July 2006, Wood was driving south on S. Saunders St., headed out of town to meet a customer near Sanford, North Carolina. Wood was focused on her driving, and was neither talking on a cell phone nor adjusting the radio. The traffic was light and visibility was generally good.

As Wood neared the intersection of S. Saunders and Ileagnes, she was driving in the far right hand lane. Her visibility was obstructed only by a white truck in the center lane, one lane to her left and about a half a car length ahead of her. She had a green light at the intersection, was driving the legal speed limit of 45 mph, and saw nothing at the intersection that would require her to slow down. Suddenly, the white truck swerved to the left and Plaintiff's vehicle appeared in front of her. Wood immediately "slammed" on the brakes but was unable to avoid hitting Plaintiff's car a "split second" later. After the collision, Wood got out of her car and called 911. She testified that Plaintiff seemed disoriented, his speech was slurred, and he asked her "[w]hat happened?" Following the presentation of evidence, the case was submitted to the jury. The first issue on the jury's issue sheet asked: "Was the Plaintiff, Joseph Rand Vestal, injured by the negligence of the Defendants?" The issue sheet directed the jury that if it answered this issue "No" it should not answer the other issues "for this will be your verdict." Accordingly, after the jury answered "No" to the threshold question of Defendants' negligence, it did not reach the other issues.

On 11 January 2008 the trial court entered judgment for Defendants. On 15 February 2008 the court entered an order taxing to Plaintiff an expert witness fee for the testimony of Dr. Frater. On 16 January 2008 Plaintiff filed a motion seeking a new trial, pursuant to N.C. Gen. Stat. § 1A-1, Rules 59 and 60. On 22 February 2008 the court entered an order denying Plaintiff's motion for a new trial. Plaintiff has appealed from the judgment entered against him, the order taxing the expert witness fee to him, and the denial of his motion for a new trial.

Standard of Review

Plaintiff appeals the denial of his motion for a new trial under N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) (2007).

"Rule 59(a)(7) permits a new trial to be granted for `[i]nsufficiency of the evidence to justify the verdict.' The term `insufficiency of the evidence' means that the verdict is against the greater weight of the evidence." Strum v. Greenville Timberline, LLC, 186 N.C. App. 662, 667, 652 S.E.2d 307, 310 (2007) (quoting In Re Will of Buck, 350 N.C. 621, 624, 516 S.E.2d 858, 860(1999)). In ruling on a motion for a new trial, the trial court gives deference to the jury's findings on contested issues. "There is no question that `[i]t is the province of the jury to weigh the evidence and determine questions of fact.' Moreover, as the finder of fact, the jury is `entitled to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence.' The trial court must give the utmost consideration and deference to the jury's function as trier of fact before setting aside a decision of the jury." Horne v. Vassey, 157 N.C. App. 681, 687, 579 S.E.2d 924, 928 (2003) (quoting Coletrane v. Lamb, 42 N.C. App. 654, 657, 257 S.E.2d 445, 447 (1979), and Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408, 413 (1986)).

The trial court's ruling on a motion for a new trial is reviewed for abuse of discretion. "Because `the trial court has directly observed the evidence as it was presented and the attendant circumstances, as well as the demeanor and characteristics of the witnesses,' a trial court's ruling on a motion for new trial is given great deference." Kummer v. Lowry, 165 N.C. App. 261, 263, 598 S.E.2d 223, 225 (2004) (quoting In re Will of Buck, 350 N.C. at 628, 516 S.E.2d at 863). "[T]he ruling of a judge on a motion for a new trial is in the sound discretion of the trial judge. In the absence of abuse of discretion, such ruling is not reversible on appeal." Investors Title Insurance Co. v. Herzig, 330 N.C. 681, 696, 413 S.E.2d 268, 276 (1992) (citations omitted). "An abuse of discretion occurs when the trial court's ruling `is so arbitrary that it could not have been the result of a reasoned decision.'" Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).

North Carolina cases have held that when the jury's verdict is supported by competent evidence, it is not an abuse of discretion for the trial court to deny a motion for new trial under Rule 59(a)(7). See, e.g., Investors Title, 330 N.C. at 696, 413 S.E.2d at 276 (no abuse of discretion by trial court where appellant "fails to demonstrate how the abundance of evidence presented can be deemed insufficient to justify the verdict reached"); Strum, 186 N.C. App. at 667, 652 S.E.2d at 310 (where "competent evidence" supported the jury's findings the "trial court did not abuse its discretion in denying" motion for a new trial).

Plaintiff also appeals the trial court's entry of an order taxing him with the costs for Dr....