Johnson v. Amethyst Corp.11/7/1995
medical malpractice against defendant Bartolotta.
III.
Plaintiff next argues that the trial court committed prejudicial error in refusing to submit plaintiff's claim for fraud against defendant Amethyst to the jury. We disagree.
To establish a prima facie fraud claim, the following elements must be present:
(1) False representation or concealment of a material fact,
(2) reasonably calculated to deceive,
(3) made with the intent to deceive,
(4) which does in fact deceive,
(5) resulting in damage to the injured party.
Carpenter v. Merrill Lynch, 108 N.C. App. 555, 558, 424 S.E.2d 178, 179 (1993).
In order to meet the first element, some type of representation must have been made. Plaintiff argues that the fraud issue should have been submitted to the jury because the hospital brochure falsely represented that, "Amethyst provides you with a very safe and secure facility. It is supervised at all times by reliable highly trained staff." We disagree.
The plaintiff must prove a misrepresentation of a material fact. See Powell v. Wold, 88 N.C. App. 61, 64, 362 S.E.2d 796,
797 (1987). One's opinion, and generally one's promise, are not material facts. Myrtle Apt., Inc. v. Lumbermen's Mut. Cas. Co., 258 N.C. 49, 52, 127 S.E.2d 759, 761 (1979). However, a promissory representation may be fraud if made with the intent to deceive. See Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 568-69, 374 S.E.2d 385, 392 (1988). In the case at hand, the record is devoid of any evidence that the reference in the brochure to Amethyst Hospital's safety was intended to deceive Ms. Johnson.
We therefore find no error with the trial court's refusal to submit a fraud issue as to defendant Amethyst.
IV.
The plaintiff next argues that the closing argument of counsel for defendant Bartolotta contained highly inflammatory and prejudicial statements. We agree.
What is included in a closing argument must be supported by the evidence on the record. See Waldron v. Waldron, 156 U.S. 361, 379, 15 S. Ct. 383, 387, 39 L. Ed. 453 (1895); Lamborn & Co. v. Hollingsworth, 195 N.C. 350, 352, 142 S.E. 19, 21 (1928). Only the legitimate inferences that may be drawn from the evidence may be argued. See, e.g., Wilson v. Commercial Finance Co., 239 N.C. 349, 359-60, 79 S.E.2d 908, 916 (1954). An attorney may not argue facts of his own knowledge, nor may he argue facts outside of the evidence. Crutcher v. Noel, 284 N.C. 568, 572, 201 S.E.2d 855, 857 (1974). Additionally, misstatements of the evidence on the record constitute reversible error. See Berger v. United States, 295 U.S. 78, 88-89, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935).
In the instant case, Attorney Kurdys made the following statements during his closing argument:
And about the same time in April of 1991 a law professor from Oklahoma State University accused a man who was nominated to be a Supreme Court Justice of the United States of sexual harassment and sexual impropriety. What was in it for her?
In a plea arrangement orchestrated by the attorneys for the four women who were making the charges . . . for the purpose of bringing legal claims within two days after they came forward with these allegations. How plausible is it that in response to these charges, descriptions of the conduct like Daphne Johnson has told you, that Judge Jane Harper -- a female Judge -- would give John Bartolotta no active time if there was believable evidence that any of this were true?
Plaintiff's counsel objected to these
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