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Albrecht v. Dorsett12/1/1998
Appeal by plaintiffs from judgment entered 17 December 1996 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 3 June 1998.
Plaintiffs, Dr. Gary Robert Albrecht, Dr. Jane White Albrecht, and their minor son, Philip Francis Albrecht, seek to set aside the jury's verdict in their personal injury action, on the ground that the damages awarded were inadequate as a matter of law. In addition, plaintiffs challenge the trial court's failure to exclude certain testimonial and demonstrative evidence, on the basis that such evidence was inadmissible and highly prejudicial. For the reasons set forth herein, we discern no error.
On 4 April 1993, a vehicle driven by Harrison Lindsay Dorsett, now deceased, struck the rear of plaintiffs' van while it was stopped at an intersection. Plaintiffs filed a negligence action against Dorsett alleging that they were each severely and permanently injured as a result of the automobile collision. On 11 March 1996, plaintiffs moved for partial summary judgment on the issue of liability. The trial court granted the motion and ruled that the case proceed to trial only on the issue of damages. The matter was tried before a jury, and on 25 September 1996, the jury returned a verdict awarding $200 to Dr. Gary Albrecht, $3,200 to Dr. Jane Albrecht, and $200 to Philip Albrecht. On 3 October 1996, plaintiffs filed a motion for a new trial on the issue of actual damages. The trial court denied the motion, and plaintiffs appeal.
Before proceeding to our analysis of plaintiffs' arguments, we must address a preliminary procedural matter. In the record, defendant raises a "cross-assignment of error" challenging the contents of the trial court's order granting summary judgment to plaintiffs on the issue of liability. Rule 10(d) of the North Carolina Rules of Appellate Procedure provides that an appellee may cross-assign as error any action or omission of the trial court "which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken." N.C.R. App. P. 10(d). Under Rule 10(d), defendant's challenge is not properly raised by cross- assignment of error, because the judgment from which plaintiffs appeal deals solely with damages, not liability. Therefore, the matter raised by defendant's purported "cross-assignment of error" is more suitably the subject of a cross-appeal.
Rule 3(a) of our Appellate Rules provides as follows: Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.
N.C.R. App. P. 3(a). Failure of a party to file a notice of appeal regarding a particular order deprives this Court of jurisdiction over issues arising out of the order. Smith v. Smith, 43 N.C. App. 338, 258 S.E.2d 833 (1979). Thus, since defendant did not properly appeal the order of summary judgment, the issue raised in her purported "cross- assignment of error" is not legitimately before this Court. See N.C.R. App. P. 10(d)(setting forth the scope of review on appeal); Brown v. Brown, 112 N.C. App. 614, 436 S.E.2d 404 (1993)(dismissing plaintiff's cross-assignment of error challenging court's failure to sanction attorney, because such issue was more appropriately the subject of a cross-appeal, and plaintiff failed to appeal from order denying sanctions). Accordingly, we must dismiss defendant's "cross-assignment of error" and strike all other matters pertaining to the order of partia
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