{ "id": 11237709, "name": "KAREN M. HORNER, Executrix of the Estate of ROBERT HENRY DOUTHART, Plaintiff v. JEFFREY W. BYRNETT, Defendant", "name_abbreviation": "Horner v. Byrnett", "decision_date": "1999-02-16", "docket_number": "No. COA98-533", "first_page": "323", "last_page": "329", "citations": [ { "type": "official", "cite": "132 N.C. App. 323" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "407 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "267" }, { "page": "267" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 739", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11198057 ], "year": 1998, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0168-01" ] }, { "cite": "436 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "825", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "335 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530532 ], "year": 1993, "pin_cites": [ { "page": "214-15", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0209-01" ] }, { "cite": "503 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467879 ], "year": 1998, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0408-01" ] } ], "analysis": { "cardinality": 711, "char_count": 15450, "ocr_confidence": 0.778, "pagerank": { "raw": 1.1752564642589152e-07, "percentile": 0.5873803839528868 }, "sha256": "57a33292085fb291a550cac1cb87708b4f9987d3bac7297241a96c3490c66756", "simhash": "1:b6a4c1c0fa780c5e", "word_count": 2478 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WALKER concur." ], "parties": [ "KAREN M. HORNER, Executrix of the Estate of ROBERT HENRY DOUTHART, Plaintiff v. JEFFREY W. BYRNETT, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJeffrey W. Byrnett (\u201cdefendant\u201d) appeals from an order denying his motion for judgment notwithstanding the verdict (\u201cJNOV\u201d) or, alternatively, for a partial new trial on the issue of punitive damages arising out of the claim by Robert Henry Douthart (\u201cplaintiff\u2019) for criminal conversation. The relevant facts are not in dispute.\nPlaintiff\u2019s wife and defendant began a sexual relationship in August of 1992, which continued until June of 1993, with a brief interruption in November and December of 1992. Plaintiff\u2019s wife became depressed when the affair ended and was eventually hospitalized for depression and alcoholism. Plaintiff learned of the affair during his wife\u2019s hospitalization, and the couple separated on or around 13 September 1994.\nPlaintiff filed a complaint against defendant on 9 April 1996 seeking damages for alienation of affections and criminal conversation. On 17 May 1996, defendant filed an answer wherein he denied the allegations concerning alienation of affections but admitted to having an adulterous affair with plaintiff\u2019s wife. Upon motion of the plaintiff, partial summary judgment on the issue of criminal conversation was entered for plaintiff on 8 July 1996.\nThe remaining issues came on for trial before a jury, and at the close of plaintiff\u2019s evidence, defendant moved for directed verdicts, arguing that plaintiff had not established the tort of alienation of affections and that he had not shown his right to punitive damages for either tort. The trial court granted defendant\u2019s motion pertaining to the issue of punitive damages for alienation of affections but denied defendant\u2019s other motions. The jury returned a verdict in favor of plaintiff and awarded $1.00 in compensatory damages for alienation of affections and criminal conversation and $85,000.00 in punitive damages for criminal conversation.\nDefendant filed a motion for JNOV or, in the alternative, for a partial new trial. Following a hearing, the trial court entered an order denying defendant\u2019s motion on 11 September 1997. Defendant thereafter filed a motion for reconsideration, which the the court denied on 1 December 1997. Defendant filed timely notice of appeal.\nIn his first argument, defendant contends that the trial court erred by denying his motion for JNOV on the issue of punitive damages for criminal conversation. Defendant argues that there was insufficient evidence to support an award for punitive damages, because there was no proof that his conduct was outrageous or aggravated. Having carefully considered this argument in light of the North Carolina case law regarding damages for criminal conversation, we must disagree.\nAppellate review of a trial court\u2019s ruling upon a motion for JNOV is identical to that of a ruling upon a motion for directed verdict. In re Buck, 130 N.C. App. 408, 410, 503 S.E.2d 126, 129 (1998). As our Supreme Court has stated,\nA motion for directed verdict [or JNOV] tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the non-moving party\u2019s cause of action, then the motion for directed verdict and any subsequent motion for [JNOV] should be denied.\nAbels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993) (citations omitted). If there is more than a scintilla of evidence supporting each element of the nonmoving party\u2019s claim, the motion for directed verdict or JNOV should be denied. Norman Owen Trucking v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998).\nIt is well-established that punitive damages \u201care awarded as punishment due to the outrageous nature of the wrongdoer\u2019s conduct.\u201d Juarez-Martinez v. Deans, 108 N.C. App. 486, 495, 424 S.E.2d 154, 159-60 (1993). As such, punitive damages are \u201cnot allowed as a matter of course, but they may be awarded only when there are some features of aggravation, as when the act is done wilfully and evidences a reckless and wanton disregard of plaintiff\u2019s rights.\u201d Scott v. Kiker, 59 N.C. App. 458, 462, 297 S.E.2d 142, 146 (1982). Keeping these principles in mind, we turn to the issue of whether evidence sufficient to establish the tort of criminal conversation is, likewise, sufficient to maintain a claim for punitive damages.\nIn the past, our courts have held that a jury may consider the issue of punitive damages for criminal conversation based solely upon evidence that the defendant committed adultery \u2014 engaged in sexual intercourse \u2014 with the plaintiff\u2019s spouse. See Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913); Johnson v. Allen, 100 N.C. 131, 5 S.E. 666 (1888). Defendant argues, however, that recent decisions by this Court require more than proof of adultery to support an award of punitive damages. In particular, defendant points to our holdings in Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989), and Shaw v. Stringer, 101 N.C. App. 513, 400 S.E.2d 101 (1991), wherein we considered whether the plaintiffs presented sufficient evidence to support an award of punitive damages for criminal conversation.\nIn Gray, this Court articulated the following basis for upholding the award of punitive damages to the plaintiff:\nWe likewise conclude there was sufficient evidence to support the award of punitive damages. Punitive damages may be awarded \u201cwhere the conduct of the defendant was willful, aggravated, malicious, or of a wanton character.\u201d Sebastion [v. Kluttz], 6 N.C. App. [201,] 220, 170 S.E.2d [104,] 116 [1969]. Here, defendant\u2019s phone calls in which defendant told plaintiff he was having sex with plaintiffs wife and was going to take plaintiffs business is some evidence in support of the punitive damages award. Additionally, the defendant\u2019s act of driving up in front of plaintiff\u2019s business, blowing the horn, and then in the presence of plaintiff kissing plaintiff\u2019s wife, unbuttoning her blouse and then putting his hand inside certainly amounts to evidence sufficient for a jury to determine defendant\u2019s conduct was \u201cwillful, aggravated, malicious, or of a wanton character.\u201d Id.\nGray, 94 N.C. App. at 730-31, 381 S.E.2d at 475-76. In Shaw, we again upheld an award of punitive damages, stating the following reasoning for our decision:\nThe argument based upon a proper objection is that it was error to submit and charge upon the issue because no evidence of aggravating conduct warranting punitive damages was presented. The argument has no merit. Aggravation, malice and willfulness were indicated by evidence to the effect that after being asked not to do so defendant persisted in visiting plaintiff\u2019s wife in the marital household and violating plaintiff\u2019s conjugal rights and even laughed when plaintiff\u2019s wife told him that plaintiff had learned of their affair.\nShaw, 101 N.C. App. at 517, 400 S.E.2d at 103.\nOn the surface, Gray and Shaw appear to hold that adultery, without more, is not sufficiently aggravating to entitle the plaintiff to punitive damages for criminal conversation. However, neither decision squarely speaks to the issue presented in the instant case. Insofar as there was other evidence of aggravation, malice, and willfulness in both cases, this Court was not called upon to resolve whether adultery alone warrants an instruction and/or award of punitive damages in an action for criminal conversation. Furthermore, we note that neither Gray nor Shaw overrules, limits, or criticizes earlier case law awarding punitive damages based solely upon adultery. See Powell, 163 N.C. 393, 79 S.E. 872; Johnson, 100 N.C. 131, 5 S.E. 666. Accordingly, we hold that the same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages. We find support for our holding in Professor Lee\u2019s discussion on the issue:\nCriminal conversation . . . does not require a showing of malice. For this tort, the question is not whether the plaintiff has shown malice beyond what is needed to establish the tort, but what evidence suffices to show the kind of reckless conduct justifying punitive damages. In fact, the appellate cases prove that the sexual intercourse that is necessary to establish the tort also supports an award of punitive damages: as long as there is enough evidence of criminal conversation to go to the jury, the jury may also consider punitive damages. . . . [W]hen the plaintiff proves sexual relations between the defendant and spouse, then it seems to take little else to establish both the tort and the right to punitive damages.\n1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 5.48(C) (5th ed. 1993) (citing Johnson, 100 N.C. 131, 5 S.E. 666; Powell, 163 N.C. 393, 79 S.E. 872; Shaw, 101 N.C. App. 513, 400 S.E.2d 101).\nIn the present case, the evidence is undisputed that during the course of plaintiff\u2019s marriage, defendant engaged in sexual intercourse with plaintiff\u2019s wife. The evidence further shows that before becoming intimate, defendant and plaintiff\u2019s wife met several times to discuss the harm that a sexual relationship would cause, and yet, they willfully engaged in the injurious conduct. Thus, the evidence was sufficient to go to the jury on the issue of criminal conversation, see Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938) (setting forth the elements of criminal conversation), and the jury was also entitled to consider the issue of punitive damages. The trial court, therefore, did not err in denying defendant\u2019s motion for JNOV on the issue of punitive damages.\nNext, defendant argues that the trial court erred in denying his motion for a partial new trial, because \u201cthere is no rational relationship between the amount of compensatory damages and punitive damages awarded by the jury.\u201d Because the award of punitive damages was not excessive under North Carolina law, this argument also fails.\nThe rule is well-settled that a motion for a new trial under Rule 59 of the North Carolina Rules of Civil Procedure is \u201caddressed to the sound discretion of the trial judge,\u201d whose ruling is not reviewable on appeal, \u201cabsent manifest abuse of discretion. Blow v. Shaughnessy, 88 N.C. App. 484, 493-94, 364 S.E.2d 444, 449 (1988). Hence, we will not reverse a trial court\u2019s decision denying a new trial, unless \u201can abuse of discretion is clearly shown resulting in a substantial miscarriage of justice.\u201d Travis v. Knob Creek, Inc., 84 N.C. App. 561, 563, 353 S.E.2d 229, 230, rev\u2019d on other grounds, 321 N.C. 279, 362 S.E.2d 277 (1987).\nIn Hawkins v. Hawkins, 331 N.C. 743, 745, 417 S.E.2d 447, 449 (1992), our Supreme Court upheld this Court\u2019s holding that \u201c \u2018[o]nce a cause of action is established, plaintiff is entitled to recover, as a matter of law, nominal damages, which in turn support an award of punitive damages.\u2019 \u201d Id. (quoting Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 474 (1991)). The amount of punitive damages to be awarded the plaintiff \u201c \u2018rests in the sound discretion of the jury although the amount assessed is not to be excessively disproportionate to the circumstances of contumely and indignity present in the case.\u2019 \u201d Juarez-Martinez, 108 N.C. App. at 495-96, 424 S.E.2d at 160 (quoting Carawan v. Tate, 53 N.C. App. 161, 165, 280 S.E.2d 528, 531 (1981)).\nHere, the jury awarded plaintiff $1.00 in compensatory damages and $85,000.00 in punitive damages for criminal conversation. Defendant contends that the punitive damages award was excessive as a matter of law, because it does not bear a rational relationship to the amount of compensatory damages awarded. However, under the rule articulated in Hawkins, 331 N.C. 743, 417 S.E.2d 447, and in view of our holding in Jennings v. Jessen, 103 N.C. App. 739, 407 S.E.2d 264 (1991), we must disagree.\nIn Jennings, the jury awarded the plaintiff $200,000.00 in compensatory damages and $300,000.00 in punitive damages for alienation of affections. This Court reversed the award of compensatory damages based on our determination that the evidence was insufficient to support the award. Nevertheless, we concluded that the $300,000.00 punitive damages award was supported by the evidence and, thus, could \u201cstand alone.\u201d Id. at 744-45, 407 S.E.2d at 267. In rendering this decision, we relied on the rule stated in Hawkins, 101 N.C. App. 529, 400 S.E.2d 472, that nominal damages may support an award of punitive damages. We held that the plaintiff had established her claim and was, at least, entitled to nominal damages; therefore, \u201cHawkins compels the conclusion that the order awarding plaintiff punitive damages must be affirmed.\u201d Id. at 745, 407 S.E.2d at 267.\nAs we previously held, plaintiff produced sufficient evidence to submit the issue of punitive damages to the jury, and since plaintiff received $1.00 in compensatory damages, the test for awarding punitive damages under Hawkins was met. It was within the jury\u2019s discretion to determine the amount of punitive damages to award the plaintiff, and the fact that this amount greatly exceeded the amount awarded in compensatory damages does not, by itself, warrant a new trial. See id. Therefore, we hold that the trial judge did not abuse its discretion in denying defendant\u2019s motion for a new trial on the issue of punitive damages.\nHaving examined defendant\u2019s remaining arguments in view of the foregoing analysis, we conclude that they do not amount to reversible error.\nNo error.\nJudges LEWIS and WALKER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Thomas R. Peake, II, for plaintiff-appellee.", "Barbara R. Morgenstem for defendant-appellant." ], "corrections": "", "head_matter": "KAREN M. HORNER, Executrix of the Estate of ROBERT HENRY DOUTHART, Plaintiff v. JEFFREY W. BYRNETT, Defendant\nNo. COA98-533\n(Filed 16 February 1999)\n1. Criminal Conversation\u2014 punitive damages \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion for JNOV on the issue of punitive damages on a criminal conversation claim where the evidence was undisputed that during the course of plaintiffs marriage, defendant engaged in sexual intercourse with plaintiffs wife and that, before becoming intimate, defendant and plaintiffs wife met several times to discuss the harm that a sexual relationship would cause and yet willfully engaged in the injurious conduct. The same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages.\n2. Damages and Remedies\u2014 relationship between compensatory and punitive damages \u2014 punitive award not excessive\nThe trial court did not abuse its discretion by denying defendant\u2019s motion for a new trial on the issue of punitive damages on a criminal conversation claim where the jury awarded plaintiff one dollar in compensatory damages and $85,000 in punitive damages. Nominal damages may support an award of punitive damages and the fact that the punitive amount greatly exceeded the compensatory amount does not by itself warrant a new trial.\nAppeal by plaintiff from orders entered 11 September 1997 and 1 December 1997 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 6 January 1999.\nVernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Thomas R. Peake, II, for plaintiff-appellee.\nBarbara R. Morgenstem for defendant-appellant." }, "file_name": "0323-01", "first_page_order": 357, "last_page_order": 363 }