Nunnery v. Baucom

521 S.E.2d 479

135 NC App. 556

Pamela NUNNERY, Plaintiff, v. Eric Jonathan BAUCOM and Baucom's Nursery Company, Defendants.

No. COA98-841.

Court of Appeals of North Carolina.

November 16, 1999.

Crews & Klein, P.C., by Paul I. Klein and James N. Freeman, Jr., Charlotte, for plaintiff-appellee.

Caudle & Spears, P.A., by L. Cameron Caudle, Jr. and J. Scott Lewis, Charlotte, and Anderson, Daniel & Coxe, by Henry L. Anderson, Jr., Wrightsville Beach, for defendants-appellants.

JOHN, Judge.

Defendants appeal the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, for new trial (defendants' motion). We find no reversible error.

Pertinent facts and procedural history include the following: On 15 November 1991, plaintiff Pamela Nunnery and defendant Eric Jonathan Baucom (Baucom) were each traveling eastbound on Rural Paved Road 2665 in Mecklenburg County, North Carolina. Baucom was operating an automobile registered to defendant Baucom's Nursery Company. Two vehicles separated those being operated by plaintiff and Baucom. Plaintiff stopped her automobile in a line of traffic waiting at a red light; Baucom failed to stop and struck the vehicle immediately preceding his. That automobile, driven by William Doggette, collided with the next preceding vehicle (whose driver fled the scene shortly thereafter), which in turn struck plaintiff's automobile. Sergeant V.C. Lessane of the State Highway Patrol (Sergeant Lessane) prepared an accident report (the report) in the course of his investigation of the collision and issued a citation to Baucom for "failure to reduce speed."

Plaintiff complained of injuries at the scene and visited a local hospital emergency room the next day complaining of headache and soreness in her neck. Over the next three years, plaintiff sought treatment from numerous physicians for symptoms she attributed to the collision, including headaches, diffuse muscle pain and sleep paralysis.

Plaintiff filed the instant suit 14 November 1994 alleging "severe and painful injuries to her person" caused by Baucom's negligent driving. Sometime thereafter, defendants engaged the services of Laurie Rountree (Rountree), a private investigator. Rountree, using a pretext, developed a friendly relationship with plaintiff and visited her on several social occasions. Rountree testified regarding her impressions of plaintiff's physical condition, and conceded on cross-examination that she was being paid by defendants' insurance company.

At trial, the jury found Baucom negligent and returned a verdict in favor of plaintiff in the amount of $350,000.00. Defendants' motion followed, based

primarily on the action by the Trial Court allowing an unredacted State Highway Patrol report ... [to be] sent to the jury room during deliberations....

The trial court denied defendants' motion 9 February 1998 and the latter timely appealed.

Defendants raise nine assignments of error, condensed into five main issues for our review. Assignments of error 5, 7, 8, 11, and 12 are not set out in appellant's brief and thus are deemed abandoned. See N.C.R.App. P. 28(b)(5) ("[a]ssignments of error not set out in the appellant's brief ... will be taken as abandoned").

Defendants first assert the trial court erroneously allowed the report to be sent to the jury room during jury deliberations. In a related argument, defendants assign error to the court's denial of their new trial motion based upon receipt of the report by the jury during deliberations. We conclude each contention is unavailing.

It is well settled that trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent. Doby v. Fowler, 49 N.C.App. 162, 163, 270 S.E.2d 532, 533 (1980). Further,

the failure to make a timely objection to the taking of the exhibits to the jury room does not waive the error; "specific consent is required" of all parties,

Robinson v. Seaboard System Railroad, 87 N.C.App. 512, 528, 361 S.E.2d 909, 919 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988) (quoting Doby, 49 N.C.App. at 164, 270 S.E.2d at 533), and "an indication of an unwillingness to consent is sufficient," Dixon v. Taylor, 111 N.C.App. 97, 109, 431 S.E.2d 778, 784 (1993) (citation omitted).

Plaintiff maintains defendants specifically consented, while defendants contend their objection was clear. Relevant portions of the trial transcript read as follows:

THE COURT: They [the jury] want the accident report and the damage estimates. I take it that means—I don't remember what exhibits they were but the car damage. I presume they are wanting the car damage estimates. I guess that's all. Do you object?

[DEFENDANTS' ATTORNEY]: No, I don't object for them having either one.

THE COURT: You've both—

[DEFENDANTS' ATTORNEY]: We've both got to consent, that's right.

....

Your Honor, let me tell you what happened. We don't object to the two appraisals, we objected to the actual report. It's got stuff on there that it's my belief should have never gone on it. I object to that going back there....

THE COURT: What do you all say.

[PLAINTIFF'S ATTORNEY]: We propose sending it all back; sending the three items requested.

THE COURT: ... Well, the Court, in its discretion, is going to allow those exhibits to be submitted to the Jury.

Interpretations of the foregoing by plaintiff and defendants differ markedly. Plaintiff suggests that

defense counsel clearly consented to the requested exhibits being given to the jury during deliberations, when asked by the Trial Court[, and was merely reiterating] his previous objection to the accident report being admitted into evidence

in the first instance. Defendants maintain their objection was unambiguously indicated by counsel's statement, "I object to that going back there."

We conclude defendants' reading of the cited exchange is the more accurate. The first statement of defendants' counsel simply comprised a response to the trial court's inquiry as to whether there was an objection to the damage estimates being sent to the jury. Defendants' counsel stated he did not "object [to] them having either one," an apparent reference to the appraisals, and shortly thereafter clarified, "[w]e don't object to the two appraisals, we objected to the actual report.... I object to that going back there " (emphasis added).

The acknowledgment of plaintiff's counsel that "three items [were] requested" and the court's directive that examination of the exhibits in the jury room was being allowed "in its discretion" support our reading of the transcript. As defendants point out,

[i]f the trial judge believed that Mr. Anderson had consented, there would have been no reason for the judge to use his perceived discretionary powers in making this ruling.

Significantly, moreover, even under plaintiff's interpretation that defendants' counsel merely reiterated his objection to introduction of the report into evidence, nothing in the record indicates defendants registered the "specific consent" required by Robinson, 87 N.C.App. at 528, 361 S.E.2d at 919, to sending the report into the jury room. To the contrary, the record reflects "an indication of an unwillingness to consent," Dixon, 111 N.C.App. at 109, 431 S.E.2d at 784, on the part of defendants. Accordingly, the trial court erred in allowing the report to be viewed by the jury during the latter's deliberations. See Robinson, 87 N.C.App. at 527, 361 S.E.2d at 919.

Nonetheless, defendants are "not entitled to a new trial absent a showing that the error was prejudicial." Gardner v. Harriss, 122 N.C.App. 697, 700, 471 S.E.2d 447, 450 (1996); see also Robinson, 87 N.C.App. at 528, 361 S.E.2d at 919 ("party asserting the error must demonstrate that he has been prejudiced thereby"). As our Supreme Court has stated,

[n]ew trials are not granted for error and no more. The burden is on the appellant not only to show error but also to show that he was prejudiced to the extent that the verdict of the jury was thereby probably influenced against him.

Freeman v. Preddy, 237 N.C. 734, 736, 76 S.E.2d 159, 160 (1953) (citations omitted).

Defendants insist that allowing the report into the jury room was prejudicial for two reasons. First, defendants maintain the jury was allowed to view an unredacted version of the exhibit. When the report was first offered into evidence, defendants objected to Sergeant Lessane's entries in the "Estimated Original Traveling Speed" and "Estimated Speed at Impact" portions of the report. The trial court received the report into evidence upon redaction of the challenged entries.

According to defendants, however, an unredacted copy actually was delivered to the jury room. Defendants cite the affidavit of one juror, LaVera Bunn (juror Bunn), indicating the report sent to the jury room contained the complained of entries.

However, in ruling on defendants' motion, the trial court pointedly found, on the basis of the "arguments of counsel as well as the papers submitted in favor of and in opposition to the [m]otion," that the copy of the report "furnished to the jury had completely redacted from it all written entries for `Estimated Original Traveling Speed' and `Estimated Speed At Impact.'"

[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if, arguendo, there is evidence to the contrary.

Lumbee River Electric Membership Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983) (citation omitted). Although there is contrary evidence in the form of juror Bunn's affidavit, we must presume the trial judge's findings were based upon competent evidence in that defendants failed to include in the record on appeal either evidence or the verbatim transcript of the hearing relating to defendants' motion. See Baker v. Baker, 115 N.C.App. 337, 339, 444 S.E.2d 478, 480 (1994) (where plaintiff-appellant failed to include...