Carawan v. Tate

Annotate this Case

286 S.E.2d 99 (1982)

Johnnie F. CARAWAN, Plaintiff, v. Tom TATE and Friendly Parking Service, Inc., Defendant and Third-Party Plaintiffs, v. AETNA CASUALTY AND SURETY COMPANY, Third-Party Defendant.

No. 104.

Supreme Court of North Carolina.

January 12, 1982.

*100 Bailey, Brackett & Brackett, P.A. by Cynthia L. Pauley, Charlotte, for plaintiff-appellant.

Newitt, Bruny & Koch by John G. Newitt, Jr., Charlotte, for defendants-appellees.

BRITT, Justice.

We agree with the decision of the Court of Appeals ordering a new trial on all issues.

The only question presented in the new briefs filed in this court is whether the Court of Appeals erred in failing to dismiss *101 defendants' cross-appeal for the reason that they were not aggrieved by the judgment of the trial court, and were not the real parties in interest. Before discussing that question we feel impelled to address another question which we deem to have significance.


While the question was not raised by any of the parties, we point out an inconsistency in the trial judge's order relating to defendants' motions for judgment N.O.V. and a new trial. The inconsistency is that with respect to the verdict on punitive damages, His Honor purported to grant the motion for judgment N.O.V. pursuant to Rule 50; however, he gave as his reason that the verdict was excessive, part of one of the grounds for granting a new trial under Rule 59. Clearly, there is a difference in the purpose and applicability of the two rules.

In W. Shuford's treatise on North Carolina Civil Practice and Procedure, ยง 50-9, pg. 413, we find:

One of the more far reaching and important innovations found in the rules is the judgment N.O.V. authorized by Rule 50. For the first time in North Carolina practice it is now possible for the trial judge to reserve his ruling on a motion for a directed verdict until the jury has actually returned a verdict and then to allow or deny a motion for a judgment notwithstanding that verdict. A judgment N.O.V. is nothing more nor less than a directed verdict granted after verdict. As Rule 50(b)(1) provides, a motion for judgment N.O.V. "shall be granted if it appears that the motion for directed verdict could properly have been granted." (Emphasis added.)

See also G.S. 1A-1, Rule 50.

G.S. 1A-1, Rule 59, provides in pertinent part:

(a) Grounds.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: * * * * * * (6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice; ....

The Court of Appeals correctly held that the punitive damages issue should have been submitted to the jury and that the trial court erred in granting defendants' motion for judgment N.O.V. On the question of setting the verdict aside for the reason that it was excessive, Judge Webb appropriately wrote:

It may have been that in light of the evidence, the court felt the punitive damages awarded were excessive. It did not set the verdict aside or reduce it in its discretion, however, and that question is not before us for review.

We agree with the majority of the Court of Appeals that the verdict on the issue of punitive damages should not be reinstated and that there should be a new trial on all issues. The Court of Appeals gave sufficient reasons for granting a new trial on the question of compensatory damages, and on retrial the jury must determine first that plaintiff is entitled to recover on that issue before it can consider plaintiff's entitlement to punitive damages. Clemmons v. Insurance Co., 274 N.C. 416, 163 S.E.2d 761 (1968); Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936).


With respect to the question presented in the briefs, there appears to be no dispute regarding the legal principles involved. Only the party aggrieved by a judgment may appeal. Coburn v. Timber Corp., 260 N.C. 173, 132 S.E.2d 340 (1963). A party aggrieved is one whose rights are substantially affected by judicial order. Insurance Co. v. Ingram, Comr. of Insurance, 288 N.C. 381, 218 S.E.2d 364 (1975); Coburn v. Timber Corp., supra. An appeal must also be prosecuted by the aggrieved real party in interest. G.S. 1-277; Insurance Co. v. Ingram, Comr., supra. A real party in interest is one who is benefited or injured by the judgment in the case. Parnell v. Insurance Co., 263 N.C. 445, 139 S.E.2d 723 (1965).

*102 The only dispute relates to the application of those principles to the case at hand. Our view can be summarized by saying that if plaintiff had not appealed, defendants could not have appealed because they were not aggrieved by the judgment inasmuch as Aetna paid it. However, when plaintiff appealed and defendants were faced with the possibility that the appellate court might not agree with the trial court's action regarding the punitive damages issue, defendants potentially became aggrieved parties and they had the right to cross-appeal. What defendants feared might happen on appeal with respect to punitive damages has happened, and it is proper that they have their "day in court."

Defendants' cross-appeal is permitted by Rule 10(d) of the Rules of Appellate Procedure which provides:

(d) Exceptions and Cross Assignments of Error by Appellee. Without taking an appeal an appellee may set out exceptions to and cross-assign as error any action or omission of the trial court to which an exception was duly taken or as to which an exception was deemed by rule or law to have been taken, and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken. Portions of the record necessary to an understanding of such cross-assignments of error may be included in the record on appeal by agreement of the parties under Rule 11(a), or may be included by the appellee in a proposed alternative record on appeal under Rule 11(b).

Rule 10(d) provides protection for appellees who have been deprived in the trial court of an alternative basis in law on which their favorable judgment could be supported, and who face the possibility that on appeal prejudicial error will be found in the ground on which their judgment was actually based.

Except as modified by this opinion, the decision of the Court of Appeals is affirmed.

Modified and affirmed.