Opinion
No. COA10-914
Filed 21 June 2011 This case not for publication
Appeal by Plaintiffs from judgment entered 23 June 2009, order dated 28 January 2009, and order entered 10 September 2009 by Judge Catherine C. Eagles in Guilford County Superior Court, and from judgment entered 29 September 2009 and order entered 19 November 2009 by Judge Shannon R. Joseph in Guilford County Superior Court. Heard in the Court of Appeals 27 January 2011.
Gordon Law Offices, by Harry G. Gordon, for Plaintiffs. Smith, James, Rowlett Cohen, LLP, by Norman B. Smith, for Defendants.
Guilford County No. 08 CVS 4819.
Factual and Procedural Background
In March 2008, Plaintiffs Greensboro Rubber Stamp Co., Inc. ("Greensboro Stamp"), Professional Funding, LLC ("Professional Funding"), and John E. McCarter ("McCarter") (collectively, "Plaintiffs") filed a complaint in Guilford County Superior Court against Defendants Southeast Stamp Sign, Inc. d/b/a Greensboro Rubber Stamp ("Southeast Stamp"), Stephen K. Hewitt ("Stephen Hewitt"), and Sheila Hewitt (collectively, "Defendants").
In their complaint, Plaintiffs alleged that on 3 February 2003, Southeast Stamp, through its president, Stephen Hewitt, entered into an "Agreement of Sale Purchase" (the "Agreement") with Greensboro Stamp, whereby Southeast Stamp agreed to purchase "all the equipment, fixtures, goodwill, inventory, trademarks, tradenames, customer lists, and other tangible and intangible assets" — excluding accounts receivable, cash, and real property — of Greensboro Stamp for a total purchase price of $105,000. Per the Agreement, $5,000 was to be paid by Southeast Stamp upon the consummation of the Agreement and the other $100,000 was to be paid by Southeast Stamp "pursuant to a Secured Promissory Note [(the "Note")] in said amount, payable at $1,666.67 or more per month, with interest thereon at 0% per annum." At the time the Agreement was executed, Judith T. Jones ("Jones") was the president and majority owner of Greensboro Stamp, owning 86% of the company; the owner of the other 14% was McCarter.
Plaintiffs' complaint further alleged that in March 2004, Harry Gordon ("Gordon"), the owner and director of Professional Funding and the attorney for Plaintiffs, assigned to Professional Funding a debt owed by Jones to Gordon for unpaid legal fees. Professional Funding then obtained a judgment lien against Jones. In April 2005, the Guilford County Sheriff's office executed the judgment lien against Jones by selling Jones' 86% interest in Greensboro Stamp. Jones' interest in Greensboro Stamp was purchased by Professional Funding. In March 2005, just before Professional Funding purchased the majority interest in Greensboro Stamp, Stephen Hewitt purchased the Note from Jones and Greensboro Stamp for $21,000. At the time of Stephen Hewitt's purchase, the Note was Greensboro Stamp's sole asset, on which Southeast Stamp had made no payments. The $21,000 paid for the Note was paid directly to Jones, rather than to Greensboro Stamp, and Jones "left town" with the money.
Based on the above allegations, Plaintiffs set forth, inter alia, the following claims for relief against Defendants: (1) breach of contract based on Defendants' failure to make payments under the Note, or in the alternative, Defendants' failure to make payments directly to Greensboro Stamp instead of to Jones; (2) inducing breach of fiduciary duty based on Southeast Stamp's knowledge that Jones "violated her fiduciary duty as an insider, majority shareholder, officer or director by knowingly transferring the [Note] to [Defendants] for less than [] fair market value"; (3) conspiracy to defraud and fraudulent conveyance based on Defendants' purchase of the Note for less than fair market value; (4) unfair and deceptive trade practices based on Defendants' fraudulent actions in the purchase of the Note; and (5) declaratory judgment actions on various issues.
In April 2008, Defendants filed their answer, in which Defendants denied the majority of Plaintiffs' allegations and set forth affirmative defenses of accord and satisfaction, release and discharge, and estoppel.
The parties conducted discovery in the matter in the summer of 2008. In October 2008, along with a motion for summary judgment, Plaintiffs filed (1) a motion in limine asking the trial court to order Defendants to refrain from introducing evidence of Gordon's prior representation of Southeast Stamp or of Gordon's status as a creditor of Greensboro Stamp; and (2) a motion to strike defenses, in which Plaintiffs requested that Defendants not be allowed to present any evidence of payments on the Note in light of Defendants' failure to produce evidence of such payments during discovery. In an order filed 17 November 2008, Superior Court Judge Lindsay R. Davis, Jr., partially granted Plaintiffs' motion in limine and motion to strike defenses, ordering that Defendants "shall not mention or attempt to introduce into evidence at trial" that Gordon was a creditor of Greensboro Stamp or that Defendants made any payments on the Note other than the $21,000 purchase price.
The case was set to be tried during the 10 November 2008 Civil Session of the Guilford County Superior Court with Judge Davis presiding. However, following jury selection, the court "determined that the trial could not proceed without substitution of counsel . . . and declared a mistrial."
Because Gordon was both the owner of Plaintiff Professional Funding and counsel for Plaintiffs at the first trial, the trial court found that there was "an issue [] over the representation of [] [P]laintiffs by their counsel of record." Thereafter, the parties consented to Gordon's withdrawal from representation at trial.
Following the mistrial, discovery continued until January 2009, when Judge Catherine C. Eagles denied Plaintiffs' motion for summary judgment and denied Plaintiffs' motion to strike defenses, "except that, consistent with a previous ruling in this cause, [D]efendants shall be prohibited from offering any evidence at trial regarding payments made on the note except the $21,000 payment."
The case was tried during the 18 May 2009 Civil Session of Guilford County Superior Court, Judge Eagles presiding. The evidence presented at trial tended to confirm the factual allegations set forth in Plaintiffs' complaint, and, at the close of the evidence, the jury was instructed on a 13-issue special verdict. On 22 May 2009, the jury returned a verdict answering the relevant issues as follows: Issue 1: Greensboro Stamp settled its contract claims with Southeast Stamp; Issue 4: Stephen Hewitt and Southeast Stamp did not aid and abet Jones in breaching her fiduciary duty to McCarter, the minority shareholder, "in connection with the 2005 transaction concerning [the Note]"; Issue 6: Stephen Hewitt and Southeast Stamp aided and abetted Jones "in breaching her fiduciary duty to [Greensboro Stamp] in connection with the 2005 transaction concerning [the Note]"; Issue 7: the jury could not unanimously agree on the amount of damages Greensboro Stamp was entitled to recover based on the aiding and abetting of Jones' breach of fiduciary duty as determined by Issue 6; Issue 8: Stephen Hewitt and Southeast Stamp did not aid and abet Jones in transferring the Note when they knew the funds would not go to the benefit of Greensboro Stamp; Issue 10: Stephen Hewitt is not liable for punitive damages; and Issue 12: Southeast Stamp is not liable for punitive damages.
Following the return of the jury's verdict, Defendants moved the court to enter judgment in conformity with the verdict on all issues but Issue 6, on which Defendants moved the court to set aside the jury's verdict. Plaintiffs, on the other hand, filed a motion to reconsider, a motion for judgment notwithstanding the verdict, a motion for Chapter 75 remedies, a motion to tax costs against Defendants, and a motion for sanctions based on Defendants' closing arguments regarding payments on the Note. On 23 June 2009, the court entered judgment consistent with the verdict, declared a mistrial as to Issue 7, and ordered that "a new trial shall be had on this issue alone." On 9 September 2009, the trial court (1) denied Plaintiffs' motions to reconsider, for Chapter 75 remedies, and for judgment notwithstanding the verdict; (2) denied Defendants' motion to set aside the jury's answer to Issue 6; (3) deferred Plaintiffs' motion to tax costs; and (4) allowed Plaintiffs' motion for sanctions in part by reminding Defendants of the previous order with respect to payments on the Note. Regarding the pending trial on Issue 7, Plaintiffs also filed a motion for summary judgment, which was denied by the trial court.
Issue 7 was tried by a jury at the 14 September 2009 Civil Session of Guilford County Superior Court, the Honorable Shannon R. Joseph presiding. Evidence similar to that presented at the first trial was presented at the second trial, and on 15 September 2009, the jury returned a verdict finding that Greensboro Stamp was entitled to recover $1.00 as damages for Defendants' aiding and abetting Jones' breach of fiduciary duty. After the jury returned its verdict, Plaintiffs filed a motion for judgment notwithstanding the verdict, a motion to strike defenses, a motion for attorney fees, and a motion for a new trial. Plaintiffs' motions were denied by Judge Joseph in a 19 November 2009 order. On 17 December 2009, Plaintiffs gave notice of appeal.
Discussion
On appeal, Plaintiffs argue three main issues: (1) the trial court's denial of Plaintiffs' summary judgment motions, (2) the court's denial of Plaintiffs' motions for directed verdict and judgment notwithstanding the verdict, and (3) the court's denial of Plaintiffs' motion for a new trial following the second trial. In Plaintiffs' brief, these three issues are inartfully argued within, and confusingly spread between, two arguments with the following headings: (1) "[t]he admitted conduct of [Defendants, the undisputed facts and [c]ourt sanction [o]rders entitled [P]laintiffs to summary judgment, directed verdict and [judgment notwithstanding the verdict] on some or all claims or for a new trial"; and (2) "[t]he award of one dollar [] in damages is so grossly inadequate as it indicates the jury was actuated by bias or prejudice and [P]laintiffs were denied their right to a fair trial by the conduct of [Defendants and [D]efendants' counsel during discovery and at trial and the court's failure to take effective action to control [D]efendants and [D]efendants' counsel during discovery and at trial." Contained in these two argument sections are 20 separate errors alleged by Plaintiffs, each of which is offered in support of one or more of the three main issues and only some of which clearly indicate the issue they are asserted to support. Plaintiffs' brief — including both the discussion sections and the statement of facts — is poorly organized and falls frustratingly short of serving the purpose of an appellate brief as contemplated by our Appellate Rules, i.e., "to define clearly the issues presented to the reviewing court." N.C. R. App. P. 28(a).
In response to Plaintiffs' confusing presentation of the issues on appeal, Defendants filed a motion to dismiss Plaintiffs' appeal, asserting that "the appeal is subject to dismissal" based on Plaintiffs' "fail[ure] to separate each question presented within the argument section of the brief." In support of this assertion, Defendants cite to Consol. Elec. Distribs. v. Dorsey, 170 N.C. App. 684, 613 S.E.2d 518 (2005), a previous decision by this Court interpreting and applying the Appellate Rules before their 2009 amendment. Defendants, however, overlook the fact that the newly-amended Appellate Rules do not contain a requirement that each question presented within the argument must be separated. Compare N.C. R. App. P. 28(b)(6) (2010); N.C. R. App. P. 28(b)(6) (2003) ("An appellant's brief in any appeal shall contain . . . [a]n argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated."). While a separate discussion of each issue in a brief certainly would be a more effective way of communicating a party's positions on appeal, the failure to do so does not warrant dismissal under our current Appellate Rules. Accordingly, we deny Defendants' motion to dismiss and reach the merits of Plaintiffs' appeal.
Plaintiffs have filed with this Court a motion to dismiss Defendants' "cross appeal." However, there was no notice of appeal filed by Defendants and, in their appellate brief, Defendants request only that this Court "affirm the judgments and orders of the Superior Court of Guilford County." Because we conclude that there is no "cross appeal" by Defendants for this Court to dismiss, Plaintiffs' motion must be denied.
I. Summary Judgment
Plaintiffs first argue that the trial court "erred in failing to grant [P]laintiffs summary judgment." At the trial level, Plaintiffs filed two motions for summary judgment — one before the first trial and one before the second trial — both of which were denied by Judge Eagles. On appeal, Plaintiffs do not indicate which denial their arguments address. However, regardless of whether Judge Eagles erred in denying Plaintiffs' first or second (or both) summary judgment motions, it has long been the law in North Carolina that "[i]mproper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts, either judge or jury." Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985). Because the case proceeded to trial following both motions, the denial of summary judgment cannot be reversible error. Plaintiffs' argument is overruled.
II. Directed verdict or judgment notwithstanding the verdict
Plaintiffs moved for directed verdict at the close of all evidence in both trials and for judgment notwithstanding the verdict following the return of the jury's verdicts in both trials. All of these motions were denied by the trial court, and Plaintiffs argue that all of these denials were error.
In the first trial, at the close of all the evidence, Plaintiffs moved for a directed verdict "[o]n all claims." Judge Eagles denied Plaintiffs' motion "as to all issues [submitted] to the jury." Plaintiffs also filed a motion for judgment notwithstanding the verdict following the jury's return of the verdict in the first trial; this motion was likewise denied. On appeal, Plaintiffs argue that the trial court erred by failing to direct a verdict for Plaintiffs and by failing to grant Plaintiffs judgment notwithstanding the verdict.
North Carolina Civil Procedure Rule 50 expressly requires that a motion for a directed verdict "shall state the specific grounds therefor." N.C. Gen. Stat. § 1A-1, Rule 50(a) (2009). "If the [trial] court denies a motion for a directed verdict which fails to state the specific grounds for the motion, the moving party may not complain of the denial on appeal." Pergerson v. Williams, 9 N.C. App. 512, 516, 176 S.E.2d 885, 888 (1970) (quoting 2B Barron and Holtzoff, Federal Practice and Procedure, § 1073, p. 370). Because Plaintiffs presented multiple claims with multiple theories of recovery, we conclude that Plaintiffs' first trial motion for a directed verdict "[o]n all claims" did not state the specific grounds for the motion and, thus, Plaintiffs failed to preserve the trial court's denial for our review. See Oxendine v. Moss, 64 N.C. App. 205, 206, 306 S.E.2d 831, 832 (1983) ("[D]efendants, the moving party, failed to state to the trial court any specific grounds for their motion for a directed verdict, as required by [N.C. Gen. Stat. § ]1A-1, Rule 50(a) of the Rules of Civil Procedure. Under such circumstances, defendants have failed to preserve the trial court's denial of their motion for our review.").
Rule 50 further states that "a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict." N.C. Gen. Stat. § 1A-1, Rule 50(b)(1). Regarding such a motion for judgment notwithstanding the verdict, Rule 50 explains that "[w]henever a motion for a directed verdict made at the close of all the evidence is denied . . . the submission of the action to the jury shall be deemed to be subject to a later determination of the legal questions raised by the motion [for directed verdict]." N.C. Gen. Stat. § 1A-1, Rule 50(b)(1) (emphasis added). As previously stated by this Court, "[a] motion for [judgment notwithstanding the verdict] is treated as a renewal of the motion for directed verdict." Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 100, 515 S.E.2d 30, 36, aff'd per curiam, 351 N.C. 92, 520 S.E.2d 785 (1999). "Thus, a movant cannot assert grounds on a motion for [judgment notwithstanding the verdict] that were not previously raised in the directed verdict motion." Id. As stated supra, Plaintiffs did not raise any specific legal grounds in their motion for directed verdict at the close of the first trial. Because a specific directed verdict motion is a prerequisite for a judgment notwithstanding the verdict, Garrison v. Garrison, 87 N.C. App. 591, 595, 361 S.E.2d 921, 924 (1987), Plaintiffs did not properly move for judgment notwithstanding the verdict and may not complain about the trial court's denial of that motion on appeal. Accordingly, all of Plaintiffs' arguments with respect to their motions for directed verdict and judgment notwithstanding the verdict at the first trial are overruled.
Regarding the second trial, we note that again Plaintiffs simply "move[d] for directed verdict at the close of [Defendants'] evidence" without stating any specific grounds for the motion. However, "[a]lthough the provision in Rule 50(a) that a motion for a directed verdict shall state the specific grounds therefore is mandatory, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties." Heist v. Heist, 46 N.C. App. 521, 523, 265 S.E.2d 434, 436 (1980) (citing Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974), overruled on other grounds, Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998)). In this case, regarding the directed verdict motion at the close of evidence in the second trial, there was only one issue before the jury — the amount of damages Greensboro Stamp was entitled to recover for Defendants' aiding and abetting of Jones' breach of fiduciary duty "in connection with the 2005 transaction concerning [the Note]" — and only one argument consistently advanced by Plaintiffs leading up to the motion for directed verdict: that resolution of the damages issue was a simple mathematical calculation based on the terms of the Note because Defendants were precluded from presenting evidence regarding payments allegedly made on the Note. Accordingly, we conclude that the grounds for the motion for directed verdict at the second trial were sufficiently apparent and, thus, we review the trial court's denial of that motion.
"On appeal, this Court [] reviews an order ruling on a motion for directed verdict or judgment notwithstanding the verdict de novo." Austin v. Bald II, L.L.C., 189 N.C. App. 338, 342, 658 S.E.2d 1, 4 (2008). The standard of review of a ruling entered upon a motion for directed verdict and judgment notwithstanding the verdict is "whether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury." Branch v. High Rock Realty, Inc., 151 N.C. App. 244, 250, 565 S.E.2d 248, 252 (2002) (quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000)). A motion for directed verdict "should be denied if there is more than a scintilla of evidence supporting each element of the non-movant's claim." Denson v. Richmond Cty., 159 N.C. App. 408, 412, 583 S.E.2d 318, 320 (2003) (citation and quotation marks omitted).
In Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444 (1988), this Court, in recognizing the cause of action for aiding and abetting a breach of fiduciary duty, cited "subsection (b), section 876, Restatement of Torts 2d" and stated that "a person is liable for harm resulting to a third person if he[] knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." Id. at 490, 364 S.E.2d at 447. As the jury in the first trial had already determined that Defendants should be held liable for the resulting harm, the only issue to be determined was the dollar-amount equivalent of that harm. Plaintiffs argue on appeal, as they did before the trial court, that because Defendants could not present any evidence of payments made on the Note, the amount of damages resulting from the breach was $100,000, the unpaid principal on the note, less $21,000, the amount paid to Jones by Stephen Hewitt. Plaintiffs contend that this calculation should have determined the issue of damages and that submission of that issue to the jury was error. We disagree.
In our view, it is not obvious that Jones, had she been acting in the best interest of Greensboro Stamp, could have obtained the full amount of the principal from Stephen Hewitt and Southeast Stamp three years before full payment on the Note was due. It seems that while Jones breached her duty in selling the Note at the "sweet discount," she would have had to have sold it at some discount in order to immediately obtain full payment by Hewitt. Indeed, without contemplating them all in this opinion, we surmise that one could imagine various scenarios in which Jones would not have breached her fiduciary duty by accepting less than the full payment amount when selling the Note. Because the actual amount of harm resulting from the sale is not a mathematical certainty, we conclude that the evidence of the harm resulting from the sale of the Note was appropriately submitted to the jury, and that the evidence was sufficient for the jury to determine that the harm caused by Stephen Hewitt's conduct was either undeterminable or de minimis. As such, we further conclude that the trial court properly denied Plaintiffs' motion for directed verdict following the close of evidence at the second trial. Plaintiffs' argument is overruled.
Throughout the proceedings below, Plaintiffs presented as evidence of Southeast Stamp's and Stephen Hewitt's misconduct the following letter sent from Stephen Hewitt to Gordon subsequent to Stephen Hewitt's purchase of the Note from Jones:
Gordon —
Last time the sheriff told me this was your doing —
F.Y.I. [Jones] has been bought out by me at a sweet discount — She left town. You loose [sic] —
Xoxo
Steve Hewitt
Indeed, Judge Joseph instructed the jury as follows on one potential measure of the damages they were to determine:
[Greensboro Stamp] is entitled to recover nominal damages, even without proof of actual damages. Nominal damages consist of some trivial amount, such as $1.00, in recognition of a technical injury to [Plaintiffs] caused by the wrongful conduct of [Defendants].
Plaintiffs do not argue on appeal that Judge Joseph erred in her instructions to the jury.
Plaintiffs also appear to argue various other errors by the trial court in support of their contention that it was error to deny their motion for directed verdict. However, the only apparent ground for the motion at trial was the ground discussed supra. As previously held by this court, "[w]hen a specific ground for a directed verdict is not stated in the original motion, it cannot be raised on appeal." Lee v. Keck, 68 N.C. App. 320, 328, 315 S.E.2d 323, 329, cert. denied, 311 N.C. 401, 319 S.E.2d 271 (1984). Accordingly, any other grounds urged by Plaintiffs on appeal in support of their contention that they were entitled to directed verdict on the damages issue are not properly before this Court.
Regarding Plaintiffs' motion for judgment notwithstanding the verdict following the second trial, we observe that a ruling on such a motion is a question of law, Penley v. Penley, 314 N.C. 1, 9 n. 1, 332 S.E.2d 51, 56 n. 1 (1985), and presents the same issue for appellate review as a motion for directed verdict, see Mobley v. Hill, 80 N.C. App. 79, 83, 341 S.E.2d 46, 49 (1986), i.e., whether the evidence, taken as true and considered in the light most favorable to the non-movant, is sufficient to take the case to the jury and to support a verdict for the non-movant. See Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 306, 319 S.E.2d 290, 292, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). As we have already determined that the evidence at the second trial, taken in the light most favorable to Defendants, was sufficient to take the case to the jury, we conclude that the trial court properly denied Plaintiffs' motion for judgment notwithstanding the verdict filed after the second trial. Based on the foregoing, we conclude that the trial court properly denied each of Plaintiffs' motions for directed verdict and judgment notwithstanding the verdict.
Furthermore, "[a] motion for [judgment notwithstanding the verdict] is treated as a renewal of the motion for directed verdict" and, thus, "a movant cannot assert grounds on a motion for [judgment notwithstanding the verdict] that were not previously raised in the directed verdict motion." Couch, 133 N.C. App. at 100, 515 S.E.2d at 36. Any arguments raised by Plaintiffs in the motion for judgment notwithstanding the verdict or on appeal that were not raised in the motion for directed verdict at the close of the evidence in the second trial are not properly before this Court.
III. New Trial
Finally, Plaintiffs contend that the trial court erred in denying their Rule 59 motion for a new trial filed after the second trial.
Several of Plaintiffs' arguments on this subject address issues before the trial court in the first trial, but not the second trial. However, Plaintiffs only filed a Rule 59 motion after the second trial. Although we recognize that Plaintiffs may have acted on strategic reasons in waiting until all jury issues were resolved before requesting a new trial, Rule 59 requires that "[a] motion for a new trial shall be served not later than 10 days after entry of the judgment." N.C. Gen. Stat. § 1A-1, Rule 59(b) (2009). Because Plaintiffs' Rule 59 motion was served later than 10 days after entry of judgment in the first trial, to the extent the motion addresses issues from the first trial, we must conclude that the trial court properly denied the motion as to those issues. See Trivette v. Trivette, 162 N.C. App. 55, 62, 590 S.E.2d 298, 304 (2004) ("Since defendant's Rule 59 motion was untimely, the trial court properly denied it.").
Rule 59 provides that "[a] new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds": (1) any irregularity by which any party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) excessive or inadequate damages appearing to have been given under the influence of passion or prejudice; (4) error in law occurring at the trial and objected to by the party making the motion; or (5) any other reason heretofore recognized as grounds for a new trial. N.C. Gen. Stat. § 1A-1, Rule 59. "It is well established that a motion for a new trial under [Rule 59] is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal absent an abuse of discretion." Hoover v. Kleer-Pak of North Carolina, Inc., 33 N.C. App. 661, 665, 236 S.E.2d 386, 389 (1977) (citing Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851 (1970)).
In support of their contention that the trial court improperly denied their motion for a new trial, Plaintiffs raise 14 arguments, most of which are legally incorrect, irrelevant, or both. In keeping with Plaintiffs' cursory, list-formatted argument presentation on appeal, we address each argument briefly seriatim below.
First, Plaintiffs argue that the trial court erred by "failing to rule that if a negotiable instrument is transferred by a fiduciary in payment of or as security for a personal debt of the fiduciary, the creditor or transferee is strictly liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in transferring the instrument under [N.C. Gen. Stat.] § 32-5." This argument is both irrelevant and legally incorrect: incorrect in that, while section 32-5 provides that the transferee is liable to the principal for the fiduciary's breach of duty, the statute does not hold the transferee strictly liable; irrelevant in that Southeast Stamp, the transferee in Plaintiffs' argument, was already found by the jury to be liable for Jones' breach of fiduciary duty to Greensboro Stamp. Accordingly, this argument is overruled.
Section 32-5 provides as follows:
If [any negotiable instrument payable or indorsed to his principal] is transferred by the fiduciary in payment of or as security for a personal debt of the fiduciary to the actual knowledge of the creditor, or is transferred in any transaction known by the transferee to be for the personal benefit of the fiduciary, the creditor or other transferee is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in transferring the instrument.
N.C. Gen. Stat. § 32-5 (2009).
Second through seventh, Plaintiffs present the following arguments: (2) the trial court "erred in failing to rule that the Hewitts could not lawfully interfere with (and profit by interfering with) a Sheriff sale/execution as they did"; (3) the trial court erred by dismissing Sheila Hewitt as a defendant at the first trial; (4) the trial court erred in failing to rule "as a matter of statutory law . . . that [D] efendants could not simply unilaterally terminate the UCC-1 Financing Statement"; (5) the trial court erred "in entering judgment that [Stephen] Hewitt did not control [Southeast Stamp] in aiding and abetting Jones in transferring the Note belonging to [Greensboro Stamp] when [Defendants admittedly knew . . . the funds paid would not go to the benefit of [Greensboro Stamp]"; (6) the trial court erred in "failing to provide a remedy to a minority shareholder whose rights were trampled upon by [D]efendants who reaped huge financial rewards by doing so"; and (7) the trial court erred "in failing to rule that breach of fiduciary duty in a commercial context is an unfair and deceptive act or practice in or affecting commerce in or under [N.C. Gen. Stat.] § 75." These six arguments are irrelevant because they bear upon issues in the first trial and have no relation to the amount of damages for the breach of fiduciary duty — the only issue before the trial court in the second trial. Accordingly, these arguments are overruled.
Eighth through eleventh, Plaintiffs argue that (8) the trial court erred by permitting Defendants to argue they were entitled to rely on Jones' "authority to act"; (9) the trial court erred by "allowing [D]efendants' counsel to argue to the jury that [P]laintiffs' counsel violated an ethical duty to [D]efendants"; (10) the trial court erred "in allowing [D]efendants' counsel to suggest improper `champerty'"; and (11) the trial court erred by "failing effectively to bar [D]efendants and [D]efendants' counsel from putting forth irrelevant, inflammatory, attorney-bashing nonissues designed to inflame, confuse, and prejudice the jury." Plaintiffs contend that the trial court's allowance of these "arguments" and "suggestions" by Defendants' counsel created "unfair prejudice [and] confusion of the issues[] and misl[ed] the jury." However, in our review of the transcript of the second trial, we find nothing to indicate the existence of the alleged improperly permitted "arguments" or "suggestions," leading this Court to conclude that the complained-of conduct took place in the first trial. We, therefore, cannot conclude that the trial court abused its discretion by denying Plaintiffs' motion for a new trial on these grounds. Plaintiffs' eighth, ninth, tenth, and eleventh arguments are overruled.
Twelfth and thirteenth, Plaintiffs argue that the trial court erred by (12) failing to "provide any effective sanctions for [D]efendants' multiple discovery abuses and multiple violations of [c]ourt [o]rders"; and (13) failing to "grant in full" Plaintiffs' motions in limine and to "effectively [] enforce" orders granting Plaintiffs' motions in limine.
Plaintiffs' arguments on these issues appear to address Defendants' attempts to argue that they had made payments on the Note, despite the trial courts' orders forbidding such arguments. While we note that in her order on Plaintiffs' motions after the first trial, Judge Eagles "recall[ed] arguments at trial on at least two occasions by defense counsel from which a jury would be led to believe that [Defendants] had made such payments," there is no similar evidence that such improper arguments were made during the second trial. As such, we conclude that the motions in limine were properly enforced at the second trial and any argument that the trial court abused its discretion in denying the motion for a new trial based on alleged ineffective enforcement is overruled.
Fourteenth, and finally, Plaintiffs argue that the award of one dollar of nominal damages "is so grossly inadequate as it indicates the jury was actuated by bias or prejudice." Accordingly, Plaintiffs argue, they are entitled to a new trial on the issue of damages. We are unpersuaded.
As noted supra, a trial court's ruling a motion for a new trial "is not reviewable on appeal absent an abuse of discretion." Hoover, 33 N.C. App. at 665, 236 S.E.2d at 389. In reviewing a comparable argument under circumstances similar to the present case, this Court in Blow, supra, cited our Supreme Court's decision in Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982), for the following explanation of an "appellate court's role in reviewing the discretionary power of a trial court to grant a new trial":
[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice.
Blow, 88 N.C. App. at 494, 364 S.E.2d at 449. This Court further noted that "where there is no stipulation of damages, the testimony of witnesses becomes evidence for the sole province of the jury to consider." Id. Thus, in weighing the credibility of the testimony, "the jury has the right to believe any part or none of it." Id. (internal quotation marks and citation omitted). This Court in Blow went on to hold that because there was no stipulation of damages by any party, an award of damages that was $320,000 less than what the plaintiff requested for its aiding and abetting breach of fiduciary duty claim was not so inadequate as to make the trial judge's denial of plaintiffs' Rule 59 motion an abuse of discretion. Id.
In this case, we are likewise unconvinced that the trial judge abused her discretion in denying Plaintiffs' motion. As noted previously, the issue of damages was not so obviously settled as Plaintiffs strenuously and repetitively suggest. Therefore, we conclude that the trial judge's denial of Plaintiffs' Rule 59 motion was neither a substantial miscarriage of justice nor an abuse of discretion. Plaintiffs' argument is overruled.
Based on the foregoing, we conclude that the trial court appropriately denied Plaintiffs' various post-trial motions. The rulings of the trial court are
AFFIRMED.
Judges GEER and MCCULLOUGH concur.
Report per Rule 30(e).