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Heavner v. Cha2/15/2005
On 7 October 2002 a jury awarded plaintiff $1,095 in this personal injury case. The case was tried before Judge Jonathan L. Jones, but before judgment was entered, Judge Jones's term expired and he left the bench. The judgment was entered on 10 February 2003 by Judge Gregory R. Hayes, who later issued an order denying plaintiff's motion for a new trial on 11 June 2003. Defendant appeals the judgment and the order and for the reasons below, we affirm.
The evidence tends to show that on 1 August 1998 plaintiff and defendant were involved in a car collision. Defendant rear-endedplaintiff and received the only citation issued by the investigating officer for failure to reduce speed. Plaintiff complained of injury at the scene and was evaluated at Catawba Memorial Hospital. Thereafter, plaintiff received treatment from a chiropractor and another doctor. After being released from treatment in November 1998, plaintiff returned to the doctor in March 1999, with complaints of neck and trapezius stiffness. Plaintiff missed work as a result. The jury awarded plaintiff $1,095 for personal injuries resulting from the accident.
Plaintiff first argues that she is entitled to a new trial on damages because of defense counsel's conduct during trial, and therefore, that the trial court erred in denying her Rule 59 motion. We disagree. A trial court's decision to grant or deny a motion for a new trial will be reversed on appeal only in those rare cases where abuse of discretion can be clearly shown. Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). Generally, attorneys are given wide latitude in arguing their cases and supervising the conduct of counsel is left to the discretion of the trial court. Lamborn v. Hollingsworth, 195 N.C. 350, 353, 142 S.E. 19, 21 (1928). Thus, a reviewing court will only reverse the trial court's denial of a new trial on this basis where counsel's impropriety was gross and clearly calculated to prejudice the jury. Id. Only where "counsel grossly abuses his privilege, to the manifest prejudice of the opposite party" will a new trial be granted on appeal. State v. T.S. Davenport et al., 156 N.C. 481, 494, 72 S.E. 7, 14 (1911). A judge should intervenewhere counsel's comments may be causing prejudice to a party, and when the judge responds "fully and adequately" to the remarks of counsel, then such remarks are presumed to be harmless as, " t must be assumed that the jurors were honest and intelligent enough to heed the warning of the court." Id. at 495, 72 S.E. at 14.
Plaintiff argues that the trial court here did not exercise its discretion in denying the motion for a new trial, and, thus, that its conclusions of law should be reviewed de novo. In Page v. Boyles, this Court held that where a judge failed to exercise discretion it its Rule 59 Order this Court may review the conclusions of law de novo. 139 N.C. App. 809, 812, 535 S.E.2d 561, 563 (2000). However, the order in this case is more detailed than that in Page and indicates that the trial court did exercise its discretion here.
In its order, the court states that it "reviewed and considered the pleadings, any documents supplied in support and opposition of said motion, the entire record of this matter, and heard arguments of counsel." The order goes on to reflect, that " the undersigned [judge] is of the opinion" that the trial court judge "would have taken some action relating to the alleged conduct of Mr. Amin if he thought it was appropriate to do so." The court also states that "the court is of the opinion that the jury would have based its verdict upon the evidence presented and the law as given to them." The court then concludes that a jury's verdict should be left in
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