{ "id": 3821815, "name": "MARY E. DAFFORD, Plaintiff v. JP STEAKHOUSE LLC, and SAGEBRUSH OF NORTH CAROLINA LLC, Defendant", "name_abbreviation": "Dafford v. JP Steakhouse LLC", "decision_date": "2011-04-05", "docket_number": "No. COA10-101", "first_page": "678", "last_page": "688", "citations": [ { "type": "official", "cite": "210 N.C. App. 678" } ], "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": "635 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636861 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0058-01" ] }, { "cite": "628 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635592 ], "weight": 2, "pin_cites": [ { "page": "443-44" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0442-01" ] }, { "cite": "695 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "364 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152823 ], "year": 2010, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0195-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "787", "parenthetical": "\"A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\"" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "398-99", "parenthetical": "\"A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "536 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "510 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237254 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0160-01" ] }, { "cite": "402 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "328 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "year": 1991, "opinion_index": 0 }, { "cite": "206 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "285 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565424 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0561-01" ] }, { "cite": "494 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551237, 551147, 551116, 551226, 551357 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0398-05", "/nc/347/0398-03", "/nc/347/0398-04", "/nc/347/0398-02", "/nc/347/0398-01" ] }, { "cite": "487 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11791526 ], "year": 1997, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0001-01" ] }, { "cite": "605 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "214", "parenthetical": "\"Before addressing defendant's arguments, we note that defendant's brief is single-spaced, contrary to the requirements of Appellate Rule 26(g" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411335 ], "year": 2004, "pin_cites": [ { "page": "347-48", "parenthetical": "\"Before addressing defendant's arguments, we note that defendant's brief is single-spaced, contrary to the requirements of Appellate Rule 26(g" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0346-01" ] }, { "cite": "698 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "430", "parenthetical": "\"We agree with defendant that portions of plaintiff's statement of the facts in her brief violate N.C.R. App. P. 28(b)(5" } ], "opinion_index": 0 }, { "cite": "701 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "\"We note that petitioners did not include a standard of review in their brief to this Court, in violation of Rule 28(b)(4" } ], "opinion_index": 0 }, { "cite": "703 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "93 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273941 ], "year": 1885, "opinion_index": 0, "case_paths": [ "/nc/93/0415-01" ] }, { "cite": "189 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548140 ], "year": 1972, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0145-01" ] }, { "cite": "360 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3791432, 3793804, 3794065, 3788665, 3796661, 3788377, 3792863 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0544-06", "/nc/360/0544-02", "/nc/360/0544-07", "/nc/360/0544-05", "/nc/360/0544-03", "/nc/360/0544-04", "/nc/360/0544-01" ] }, { "cite": "177 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "610 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470105 ], "year": 2005, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0358-01" ] }, { "cite": "536 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "640" }, { "page": "640" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127046 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "350-51" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0345-01" ] }, { "cite": "540 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "322", "parenthetical": "\"In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135912 ], "year": 2000, "pin_cites": [ { "page": "156", "parenthetical": "\"In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0142-01" ] }, { "cite": "689 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 } ], "analysis": { "cardinality": 980, "char_count": 25554, "ocr_confidence": 0.742, "pagerank": { "raw": 6.095130193347234e-08, "percentile": 0.38045248970113704 }, "sha256": "35239d04cb82ebcd0f4dcf072e095bd34d0279472432796c094e5625b086915b", "simhash": "1:9948c42cfe4e0fae", "word_count": 4204 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "MARY E. DAFFORD, Plaintiff v. JP STEAKHOUSE LLC, and SAGEBRUSH OF NORTH CAROLINA LLC, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff slipped on \u201ca dollop of creamy, yellow. . . . unattended butter\u201d on the floor of defendants\u2019 restaurant; due to injuries sustained in her fall, plaintiff filed a complaint against defendants for negligence. After trial of plaintiff\u2019s claim, the jury found that plaintiff was injured by defendants\u2019 negligence and that she should recover $4,635.70 for her injuries. Plaintiff filed a motion for a new trial and a \u201cPETITION FOR COSTS[;]\u201d the trial court denied both. Plaintiff appeals the trial court\u2019s judgment awarding her $4,635.70, the trial court order denying her request for a new trial, and the trial court\u2019s denial of her \u201cPETITION FOR COSTS[.]\u201d For the reasons stated below, we affirm the trial court\u2019s judgment awarding damages and order denying a new trial; we dismiss plaintiff\u2019s appeal as to the trial court\u2019s denial of plaintiff\u2019s \u201cPETITION FOR COSTS[.]\u201d\nI. Appellate Procedure Rules Violations\nDefendants first direct our attention to numerous appellate rule violations on the part of plaintiff. However, defendants themselves have both cited the wrong version of the Rules of Appellate Procedure and committed an appellate rule violation. The North Carolina Rules of Appellate Procedure were revised in 2009, and the revisions are effective for all \u201cappeals filed on or after 1 October 2009.\u201d Latta v. Rainey,-N.C. App.-,-, 689 S.E.2d 898, 905 n.4 (2010). Plaintiff\u2019s \u201cNOTICE OF APPEAL\u201d was filed 9 November 2009, and thus this case is subject to the newest version of the Rules of Appellate Procedure. See id. It appears that neither party proceeded under the revised rules. We will address the errors committed by both parties.\nAs to plaintiff\u2019s appeal, defendant\u2019s brief first addresses the fact that plaintiff has abandoned several of her \u201cAssignments of Error\u201d and that her \u201cAssignments of Error\u201d fail to give \u201cclear and specific record or transcript references.\u201d However, neither \u201cassignments of error\u201d nor \u201cclear and specific\u201d references for assignments of error are required under the revised rules. In lieu of assignments of error, Rule 10(b) now provides that\n[proposed issues that the appellant intends to present on appeal shall be stated without argument at the conclusion of the record on appeal in a numbered list. Proposed issues on appeal are to facilitate the preparation of the record on appeal and shall not limit the scope of the issues presented on appeal in an appellant\u2019s brief.\nN.C.R. App. P. 10(b).\nDefendants also raise a more serious and substantive rule violation by plaintiff as to the content of the notice of appeal. Rule 3(d) states that \u201c[t]he notice of appeal required to be filed and served by subsection (a) of this rule . . . shall designate the judgment or order from which appeal is taken[.]\u201d N.C.R. App. P. 3(d). Rule 3(d) was not substantively changed by the revisions. Plaintiffs notice of appeal, filed on 9 November 2009, gives notice of appeal \u201cfrom: 1) the Final Order entered on 8 October 2009 in the Superior Court of Harnett County awarding a judgment to the Plaintiff and against Defendants for damages; and 2) all other Orders entered in the Superior Court of Harnett County[.]\u201d However, the judgment which ordered that plaintiff receive a monetary award was entered on 31 August 2009; the order denying plaintiff\u2019s motion for a new trial was entered on 8 October 2009. Thus, plaintiff described the 31 August 2009 judgment but gave the date for the 8 October 2009 order in the notice of appeal. The additional language in the notice of appeal as to \u201call other Orders entered\u201d by the trial court fails to \u201cdesignate the judgment or order from which appeal is taken[.]\u201d N.C.R. App. P. 3(d).\nFurthermore, in plaintiff\u2019s brief, she states that she appeals from\nthe denial of the Court to enter Judgment on the issue of liability during the trial of this matter at the close of all evidence . . .; the Denial of Plaintiff\u2019s Motion for Costs, dated 23 July 2009,...; the denial of the Court to grant Plaintiff\u2019s Motion for Judgement [sic] Notwithstanding the Verdict or in the Alternative to Award a New Trial, filed 9 October 2009[.]\nThus, considering plaintiffs notice of appeal and plaintiffs brief, we, like defendants, have had some difficulty discerning the precise rulings from which plaintiff is attempting to appeal.\nCompliance with Rule 3 is required for this Court to have jurisdiction to consider plaintiffs appeal. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (\u201cIn order to confer jurisdiction on the state\u2019s appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.\u201d) However,\nwe may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction. . . . First, a mistake in designating the judgment or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the functional equivalent of the requirement.\nMistakes by appellants in following all the subparts of Appellate Procedure Rule 3(d) have not always been fatal to an appeal. For example, Rule 3(d) requires the appellant to designate the judgment or order from which appeal is taken. In Strauss v. Hunt, 140 N.C. App. 345, 350-51, 536 S.E.2d 636, 640 (2000), however, the appellant omitted an earlier trial court order and referred only to a later order in her notice of appeal, but the Court of Appeals found it could fairly infer her intent to appeal from the earlier order. Although defendant referred only to the 11 June 1999 order in her notice of appeal, we conclude the notice fairly inferred her intent to appeal from the 21 April 1999 order, and did not mislead the plaintiff. Similarly, in Evans v. Evans, 169 N.C. App. 358, 363, 610 S.E.2d 264, 269 (2005), the defendant gave notice she appealed an order denying Defendant's claim for child custody and child support, but omitted from the notice of appeal the post-separation support and divorce from bed and board. The Court of Appeals nevertheless found jurisdiction over the post-separation support and divorce from bed and board, concluding it is readily apparent that defendant is appealing from the order dated 18 December 2001 which addresses not only child custody and support but also post-separation support and divorce from bed and board.\nStephenson v. Bartlett, 177 N.C. App. 241-42, 628 S.E.2d 442, 443-44 (citations, quotation marks, and brackets omitted), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006).\nBased upon Stephenson, we therefore consider whether plaintiffs \u201cintent to appeal from a specific judgment can be fairly inferred from the notice and [whether] the appellee [was] misled by the mistake.\u201d Stephenson at 241, 628 S.E.2d at 443. Plaintiffs notice of appeal, although confusing, does identify both the judgment awarding damages entered on 31 August 2009 and'the order denying plaintiffs motion for a new trial entered on 8 October 2009. However, in addition, in her brief, plaintiff claims also to be appealing from \u201cthe Denial of Plaintiffs Motion for Costs, dated 23 July 2009[.]\u201d\nPrior cases have determined that where the substantive issues are identified in the notice of appeal, the appellee is not \u201cmisled by the mistake.\u201d Id.; see, e.g., Strauss v. Hunt, 140 N.C. App. 345, 350, 536 S.E.2d 636, 640 (2000) (\u201cThe 11 June 1999 order referenced in the notice of appeal is the order which denied defendant\u2019s motion to alter or amend the 21 April 1999 order. Defendant\u2019s motion was based on the same grounds as the two disputed assignments of error \u2014 that the court\u2019s 21 April 1999 order was in error. It can thus be plainly inferred that defendant intended to appeal the 21 April 1999 order. As plaintiff also knew the substance of defendant\u2019s motion to alter or amend, we conclude plaintiff was not misled by this pro se appellant\u2019s failure to cite the 21 April 1999 order in her notice of appeal.\u201d). Here, the rulings from which plaintiff claims to have appealed do not all raise the same issues. Plaintiff\u2019s appeal from the judgment raises the issues of the trial court\u2019s denial of plaintiff\u2019s motion for directed verdict on the issue of liability. The appeal from both the judgment awarding money and the order denying plaintiff\u2019s motion for a new trial put defendant on notice that plaintiff was appealing the damages awarded by the jury.\nPlaintiff\u2019s purported appeal of the trial court\u2019s denial \u2022 of her \u201cPETITION FOR COSTS\u201d presents legal issues different from either liability or the damages awarded by the jury, as it was based upon different statutory grounds and was filed and heard separately from the other post-trial motions. However, no written order was ever filed as a result of the hearing on the petition for costs. In the record on appeal, the parties entered into a \u201cSTIPULATION AND AGREEMENT OF COUNSEL\u201d which provides that the trial court \u201cin open court denied the petition of Plaintiffs counsel. Counsel for the Plaintiff and counsel for the Defendant submitted proposed orders that were not executed by the presiding judge and thus no written order was made a part of the Record.\u201d Yet plaintiff cannot appeal from and this Court cannot consider an order which has not been entered. See Munchak Corp. v. McDaniels, 15 N.C. App. 145, 147-48, 189 S.E.2d 655, 657 (1972) (\u201cThe general rule is that, the mere ruling, decision, or opinion of the court, no judgment or final order being entered in accordance therewith, does not have the effect of a judgment, and is not reviewable by appeal or writ of error. As to oral opinions it is said that, a mere oral order or decision which has never been expressed in a written order or judgment cannot, under most authorities, support an appeal or writ of error. There is case authority in North Carolina for this rule. In Taylor v. Bostic, 93 N.C. 415 (1885) the trial court entered a written statement of his opinion, but no order or judgment was entered. The North Carolina Supreme Court held that the appeal was premature, there being no judgment and therefore no question of law presented from which appeal could be taken.\u201d (citations, quotation marks, and brackets omitted)). We therefore conclude that the trial court\u2019s oral denial of plaintiff\u2019s petition for costs is not reviewable at this time, although the trial court\u2019s ruling on plaintiff\u2019s petition for costs would be subject to appeal and review after the trial court\u2019s entry of a written order.\nDefendants also note that plaintiff\u2019s brief fails to state a \u201cspecific statutory basis for the plaintiff\u2019s appeal[,]\u201d \u201coffer proper citations to the record[,]\u201d and provide proper standards of review for each argument pursuant to North Carolina Rule of Appellate Procedure 28(b)(4)-(6). See N.C.R. App. P. 28(b)(4)-(6). However, plaintiff\u2019s failure to comply with North Carolina Rule of Appellate Procedure 28(b)(4)-(6) is not fatal to plaintiff\u2019s appeal. See Blackburn v. Carbone, - N.C. App. \u2014-, -, 703 S.E.2d 788, 791 n.l (2010) (\u201cPlaintiff allegedly violated various provisions of the North Carolina Rules of Appellate Procedure, including . . . failing to set out his entire argument in the appropriate section of his brief and omitting a statement of the applicable standard of review with respect to each issue as required by N.C.R. App. P. 28(b)(6) .... Although we agree that Plaintiff\u2019s brief does not strictly comply with the relevant provisions of N.C.R. App. P. 28, we do not believe that these deficiencies are jurisdictional in nature or constitute any sort of default. Instead, we believe that they constitute a violation of nonjurisdictional requirements that normally should not lead to dismissal of the appeal.\u201d (citation and quotation marks omitted)); In re Williams, \u2014 N.C. App.-, \u2014-, 701 S.E.2d 399, 401 n.2 (2010) (\u201cWe note that petitioners did not include a standard of review in their brief to this Court, in violation of Rule 28(b)(4) of our Rules of Appellate Procedure.... Because these violations did not hamper our review of the matters before us, we do not issue sanctions against petitioners. Nonetheless, we caution future appellants to conform the format and substance of their briefs to our Rules.\u201d); Mosteller v. Duke Energy Corp.,-N.C. App.-, \u2014, 698 S.E.2d 424, 430 (2010) (\u201cWe agree with defendant that portions of plaintiff\u2019s statement of the facts in her brief violate N.C.R. App. P. 28(b)(5), in that it includes facts without supporting references to pages in the record on appeal or exhibits. However, only in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.\u201d (citation and quotation marks omitted)).\nAs to defendants\u2019 rule violation, both the revised and former versions of the Rules of Appellate Procedure provide that in the briefs \u201c[t]he body of text shall be presented with double spacing between each line of text.\u201d N.C.R. App. P. 26(g)(1). Yet defendants\u2019 brief is single-spaced. We find it odd that defendants would raise plaintiff\u2019s appellate rule violations via a brief that so blatantly fails to comply with such a basic requirement of the appellate rules. We admonish defendants to comply with the Rules of Appellate Procedure, and pursuant to Rule 34, we sanction defendants\u2019 counsel by requiring that they pay the printing costs of this appeal and instruct the Clerk of this Court to enter such an order. See State v. Riley, 167 N.C. App. 346, 347-48, 605 S.E.2d 212, 214 (2004) (\u201cBefore addressing defendant\u2019s arguments, we note that defendant's brief is single-spaced, contrary to the requirements of Appellate Rule 26(g). The Rules have contained this requirement since 1988. The Rules are mandatory, and serve particular purposes; this Rule facilitates the reading and comprehension of large numbers of legal documents by members of the Court and staff. Because of this very obvious violation of Rule 26(g), we enter as a sanction that defendant\u2019s counsel pay the printing costs of this appeal, and instruct the Clerk of this Court to enter an order accordingly.\u201d)\nII. Denial of Motion for a New Trial\nPlaintiff first argues that the trial court erred in failing to grant her motion for a new trial on the issue of damages pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(7) because \u201cthe verdict was inconsistent, and the circumstances so strongly suggest it was reached as a compromise[.]\u201d (Original in all caps.); see N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(7) (\u201cA new trial may be granted to all or any of the parties and on all or part of the issues for . . . [insufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]\u201d). Despite plaintiffs description of the verdict as \u201cinconsistentf,]\u201d (original in all caps), plaintiff is not arguing that the jury\u2019s answers to issues presented to it were contradictory in any way; instead, plaintiff argues that as defendants\u2019 liability for negligence was \u201cundisputed\u201d and plaintiff\u2019s evidence of her damages was \u201cuncontroverted[,]\u201d the jury must have entered a verdict by compromise as they found liability for negligence on the part of defendants, but awarded her far less than her \u201cuncontroverted\u201d damages.\nThis Court reviews a trial court\u2019s order on a motion for new trial for abuse of discretion. See Estate of Smith v. Underwood, 127 N.C. App. 1, 12, 487 S.E.2d 807, 814, disc. review denied, 347 N.C. 398, 494 S.E.2d 410 (1997).\nA motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial court. Reversal on any ground should be limited to those exceptional cases where an abuse of discretion is clearly shown. An appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\nId. (citations, quotation marks, ellipses, and brackets omitted).\nIn support of plaintiff\u2019s argument that the amount of damages was inadequate such that she is entitled to a new trial, plaintiff cites to Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974) and Wilkinson v. Cruz, 328 N.C. 561, 402 S.E.2d 408 (1991); however, neither Robertson nor Wilkinson are controlling of this case. In Robertson, causation and medical expenses were stipulated to in the trial before the jury. See Robertson at 564, 206 S.E.2d at 192 (\u201cIn the consolidated trial of the actions \u2014 one by the father for medical expenses and the other by the son for personal injuries \u2014 the following was stipulated by counsel and read to the jury: \u2018In addition to the other stipulations contained herein, the parties stipulate and agree with respect to the following undisputed facts .... That at the time of the accident, said Douglas Wayne Robertson was struck by an automobile being operated by the defendant. As a result of the accident, Douglas Wayne Robertson suffered a dislocation of his right sternoclavicular joint which resulted in his hospitalization on three occasions and caused George Dillard Robertson [his father] to incur expenses in the amount of one thousand nine hundred and seventy dollars.\u2019 This judicial admission conclusively established in both cases the amount of medical expense incurred by the father and that the injury suffered by the son was the proximate result of being struck by defendant\u2019s automobile. This left for jury determination the questions of negligence, contributory negligence, and the amount of damages, if any, Douglas Wayne Robertson, the minor son, was entitled to recover.\u201d). In Wilkinson, the Supreme Court per curiam reversed the Court of Appeals decision without explanation save that their decision was based on Robertson. Wilkinson at 568, 402 S.E.2d at 408.\nHere, unlike Robertson, plaintiff\u2019s evidence was controverted by defendants. Defendants contested both the cause of plaintiff\u2019s alleged injuries and whether her medical expenses were related to injuries caused by her fall. Plaintiff\u2019s alleged injuries included a trapezium fracture, carpal tunnei syndrome, a rotator cuff tear, and a scapholunate ligament tear. Dr. George Edwards, a medical expert witness, testified that there was \u201cless than a 50 percent chance\u201d that plaintiff had a trapezium fracture at all; her carpal tunnel syndrome and scapholunate tear were not caused by her fall; and her rotator cuff tear did not have \u201canything to do with the injury, primarily because of the lack of symptoms at the time of the injury.\u201d Upon review of the testimony and medical records, it is clear that plaintiff\u2019s evidence was disputed.\nAs support for her theory that the jury entered into a compromise verdict, plaintiff argues that the jury\u2019s verdict was calculated as follows:\nBetsy Johnson Emergency Room $1,532.70\nCape Fear Valley Hospital $1,053.00\nCarolina Regional Radiology $2,050.00\nTotal $4,635.70\nAlthough plaintiff characterizes the possible method, of calculation of damages by the jury as indicating a compromise, plaintiffs calculation may actually demonstrate that the jury based its verdict on the evidence. If plaintiff is correct, then the jury\u2019s verdict seems to indicate that they believed that plaintiff sustained injuries in the fall, and therefore, awarded her damages for her initial evaluation and treatment after the fall, but they rejected plaintiff\u2019s claim that her further medical expenses were related to her fall. However, whether plaintiff\u2019s calculation is correct or not is irrelevant since the jury, as the trier of fact, may award damages based on the evidence they find credible and may disregard the evidence they did not find credible. Delta Environmental Consultants of N.C. v. Wysong & Miles Co., 132 N.C. App. 160, 171, 510 S.E.2d 690, 697 (\u201cGenerally, the trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence.\u201d), disc. review denied, 350 N.C. 379, 536 S.E.2d 70 (1999). We thus conclude that the trial court did not abuse its discretion in denying plaintiff\u2019s motion for a new trial pursuant to Rule 59(a)(7). This argument is overruled.\nIII. Denial of Motion for a Directed Verdict\nPlaintiff also appeals the trial court\u2019s denial of her motion for a directed verdict as to defendants\u2019 liability. Plaintiff argues that because the trial court did not grant a directed verdict as to defendant\u2019s negligence, the jury became \u201cdistracted\u201d by the negligence issue and this caused them to compromise as to damages. This seems to be just another way of stating plaintiff\u2019s first argument that the jury improperly entered a compromise verdict. However, the jury did find that defendants were negligent in causing plaintiff\u2019s injury, and thus this issue is moot as even if we were to agree with plaintiff that the trial court should have granted a directed verdict as to defendant\u2019s negligence, this would have no effect on the result. Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (\u201cA case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u201d) The jury did find defendants negligent, and as discussed above, the trial court did not err by its denial of plaintiff\u2019s motion for new trial as to damages. This argument is overruled.\nIV. Petition for Costs\nWe will not address plaintiff\u2019s last argument as to the trial court\u2019s denial of her \u201cPETITION FOR COSTS\u201d as there was no written order entered regarding plaintiff\u2019s petition.\nV. Conclusion\nFor the reasons previously stated, we affirm the trial court\u2019s 31 August 2009 judgment and 8 October 2009 order.\nAFFIRMED IN PART; DISMISSED IN PART.\nChief Judge MARTIN and Judge ERVIN concur.\n. On or about 30 July 2009, plaintiff filed a \u201cMOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL (Rules 50(b) and 59(a)(6))[.]\u201d The record also contains a 21 September 2009 AMOTION TO SET ASIDE JURY VERDICT AND GRANT NEW TRIAL[;]\u201d however, it does not appear from the record that the 21 September 2009 motion was ever filed or served. On appeal, plaintiff has only addressed her motion for a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59, and thus we will only refer to plaintiff\u2019s 31 July 2009 motion for a new trial which the record shows was filed and served.\n. Plaintiff was obviously not contesting the outcome of the liability portion of the trial as defendants were found to be liable, but plaintiff was claiming that a directed verdict should have been granted on liability and that the trial court\u2019s failure to do so affected the outcome on the issue of damages.\n. As a result of the fact that a claim for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.5 is not part of plaintiff\u2019s \u201cunderlying substantive claim,\u201d Bumpers v. Community Bank of Northern Virginia, 364 N.C. 195, 200, 695 S.E.2d 442, 446 (2010), the fact that plaintiff\u2019s attorney\u2019s fee claim has not been resolved in the court below does not deprive us of the ability to decide the remainder of plaintiff\u2019s arguments on appeal.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Michaux & Michaux, P.A., by Eric C. Michaux, for plaintiff - appellant.", "Allen, Kopet and Associates, PLLC, by Stephen F. Dimmick and Scott J. Lasso, for defendant-appellees." ], "corrections": "", "head_matter": "MARY E. DAFFORD, Plaintiff v. JP STEAKHOUSE LLC, and SAGEBRUSH OF NORTH CAROLINA LLC, Defendant\nNo. COA10-101\n(Filed 5 April 2011)\n1. Appeal and Error\u2014 violation of appellate rules \u2014 plaintiffs violations nonjurisdictional \u2014 defendant\u2019s counsel taxed printing costs\nAlthough plaintiff's brief did not strictly comply with the relevant provisions of N.C. R. App. P. 28, those deficiencies constituted a violation of nonjurisdictional requirements that did not lead to dismissal of the appeal. Defendant\u2019s single-spaced brief violated N.C. R. App. P. 26(g)(1). Pursuant to N.C. R. App. P. 34, the Court of Appeals sanctioned defendant\u2019s counsel by requiring that they pay the printing costs of the appeal.\n2. Negligence\u2014 damages \u2014 denial of motion for new trial \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in failing to grant plaintiff\u2019s motion for a new trial in a negligence case on the issue of damages based on plaintiff\u2019s claim that the jury entered into a compromise verdict. Plaintiff\u2019s evidence of damages was disputed and the jury may award damages based on the evidence they find credible and may disregard the evidence they do not find credible.\n3. Appeal and Error\u2014 liability \u2014 denial of motion of directed verdict \u2014 moot\nPlaintiff\u2019s argument that the trial court erred by denying her motion for a directed verdict as to defendant\u2019s liability in a negligence case was not addressed by the Court of Appeals. The issue was moot as the jury found that defendant was negligent.\n4. Appeal and Error\u2014 denial of petition for costs \u2014 no written order\nThe Court of Appeals did not address plaintiff\u2019s argument that the trial court erred by denying her petition for costs as there was no written order entered regarding plaintiff\u2019s petition.\nAppeal by plaintiff from judgment entered 31 August 2009 and order entered 8 October 2009 by Judge Franklin F. Lanier in Superior Court, Harnett County. Heard in the Court of Appeals 30 August 2010.\nMichaux & Michaux, P.A., by Eric C. Michaux, for plaintiff - appellant.\nAllen, Kopet and Associates, PLLC, by Stephen F. Dimmick and Scott J. Lasso, for defendant-appellees." }, "file_name": "0678-01", "first_page_order": 686, "last_page_order": 696 }