{ "id": 8551344, "name": "CHARLES W. THOMPSON and wife, AVIS L. THOMPSON v. TOWN AND COUNTRY CONSTRUCTION COMPANY, INC.", "name_abbreviation": "Thompson v. Town & Country Construction Co.", "decision_date": "1978-12-19", "docket_number": "No. 7817SC144", "first_page": "240", "last_page": "243", "citations": [ { "type": "official", "cite": "39 N.C. App. 240" } ], "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": "181 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "404" }, { "page": "404" } ], "opinion_index": 0 }, { "cite": "279 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565799 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "106" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0100-01" ] }, { "cite": "70 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "year": 1874, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "50 S.E. 456", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "138 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270113 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/138/0627-01" ] }, { "cite": "98 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625807 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0247-01" ] } ], "analysis": { "cardinality": 405, "char_count": 6871, "ocr_confidence": 0.836, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3406318283421157 }, "sha256": "6e9740a2a3929063b15dc6bedc729349d1a410d3579798b0324e36f85b6bdacc", "simhash": "1:8a20a1930f99acd9", "word_count": 1138 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Mitchell and Webb concur." ], "parties": [ "CHARLES W. THOMPSON and wife, AVIS L. THOMPSON v. TOWN AND COUNTRY CONSTRUCTION COMPANY, INC." ], "opinions": [ { "text": "CLARK, Judge.\nSince it is apparent that the trial judge denied defendant\u2019s motion for directed verdict in anticipation of withdrawing a juror and declaring a mistrial, we will first determine whether the order declaring a mistrial is appealable.\nAn order declaring a mistrial is appealable only if the trial judge has abused his discretion. See, Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19 (1957). A judge may withdraw a juror and declare a mistrial when \u201cnecessary to prevent the defeat of justice or in the furtherance of justice. . . .\u201d 76 Am. Jur. 2d, Trial, \u00a7 1073; 2 McIntosh, N.C. Practice & Procedure, \u00a7 1548 (1956). State v. Tyson, 138 N.C. 627, 50 S.E. 456 (1905). The trial judge is \u201cclothed with this power because of his learning and integrity, . . . [T]he law intends that the Judge will exercise it to further the ends of justice, . . .\u201d Moore v. Edmiston, 70 N.C. 470, 481 (1874).\nThere are no North Carolina cases which hold that a mistrial may be ordered \u201cto further the ends of justice\u201d when a litigant has failed to present competent evidence because he was not represented by counsel. However, the North Carolina Supreme Court has indicated what standards should be applied in ordering a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(2) \u201cupon finding that justice so requires.\u201d King v. Lee, 279 N.C. 100, 106, 181 S.E. 2d 400, 404 (1971). That Rule provides:\n\u201cBy Order of Judge. \u2014Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff\u2019s instance save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. . . .\u201d\nRule 41(a)(2) is designed \u201cto take care of the hardship case where, for quite legitimate reasons, the plaintiff is unable to press his claim.\u201d Official Comment, G.S. 1A-1, Rule 41(a)(2).\nIn King v. Lee, supra, petitioners\u2019 counsel proceeded at trial under a misapprehension of the applicable law. The North Carolina Supreme Court indicated that on remand the trial judge could order a voluntary dismissal pursuant to Rule 41(a)(2), if a judgment adverse to petitioners would \u201cdefeat justice.\u201d 279 N.C. at 107, 181 S.E. 2d at 404. The court noted that in determining whether or not to order a dismissal, the trial court should consider the likelihood that the petitioners could present evidence entitling him to relief.\nThe judge is clothed with the power to declare a mistrial for the same reason that he is empowered to order a voluntary dismissal. It follows that the standards governing the granting of Rule 41(a)(2) dismissals should also be applied in ascertaining whether a judge was warranted in declaring a mistrial \u201cto further the ends of justice.\u201d\nIn the case sub judice, the plaintiffs offered evidence tending to show the results of construction defects without describing the defects which would show that the house was constructed in an unworkmanlike manner, and though in their complaint they prayed for damages, they offered no evidence of money damage, both testifying that they did not want money but only wanted the defects repaired. The evidence offered was sufficient to show that the plaintiffs may have a valid claim which could be effectively presented to the court with the assistance of competent counsel.\nApplying the standards set forth by the Supreme Court in King, it is clear that the trial judge did not abuse his discretion in declaring a mistrial.\nSince the trial judge was warranted in ordering the mistrial, we do not deem it necessary to consider defendant\u2019s contention that the directed verdict was improvidently denied.\nAffirmed.\nJudges Mitchell and Webb concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Malone, Johnson, DeJarmon & Spaulding by C. C. Malone, Jr. and Albert L. Willis for plaintiff appellees.", "Folger & Folger by Larry Bowman for defendant appellant." ], "corrections": "", "head_matter": "CHARLES W. THOMPSON and wife, AVIS L. THOMPSON v. TOWN AND COUNTRY CONSTRUCTION COMPANY, INC.\nNo. 7817SC144\n(Filed 19 December 1978)\n1. Trial \u00a7 9.2\u2014 mistrial \u2014 when appealable\nAn order declaring a mistrial is appealable only if the trial judge has abused his discretion.\n2. Trial \u00a7 9.2; Rules of Civil Procedure \u00a7 41.1\u2014 mistrial to further ends of justice \u2014standards for voluntary dismissal\nThe standards governing the granting of a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(2) upon a finding that justice so requires should also be applied in ascertaining whether a judge was warranted in declaring a mistrial \u201cto further the ends of justice.\u201d\n3. Trial \u00a7 9.2\u2014 mistrial \u2014 ends of justice \u2014 plaintiffs unrepresented by counsel\nIn an action for breach of contract by failing to construct a house in a workmanlike manner, the trial court did not err in ordering a mistrial \u201cto further the ends of justice\u201d when plaintiffs failed to present competent evidence of specific defects in the house and of damages because they were unrepresented by counsel where the evidence offered was sufficient to show that plaintiffs may have a valid claim which could be effectively presented to the court with the assistance of counsel.\nAPPEAL by defendant from Crissman, Judge. Order entered 6 October 1977 in Superior Court, SURRY County. Heard in the Court of Appeals in Winston-Salem on 15 November 1978.\nOn 6 August 1974, plaintiffs brought an action alleging that defendant had built a house for them, had breached the contract and had failed to construct the house in a reasonable workmanlike manner and that many of the materials used were unsuitable and defective. The defendant generally denied the allegations and counterclaimed for moneys due for additional work done.\nPlaintiffs were not represented by counsel at the trial. The plaintiffs\u2019 evidence tended to show that the parties entered into a contract in 1972 for the defendant to build a home for the plaintiffs. Since the house has been completed, water has been leaking into the ceiling, several pipes have broken, and the house has warped. There is a smell of smoke in the house and plaintiffs have cut off the water to keep the water from entering the electrical units. Mrs. Thompson testified that water leaked through the chandeliers and that within the first year after the house was built the whole living room ceiling dropped. The defendant tried to jack the ceiling up but failed to correct the problem. Mrs. Thompson also testified that the wood was not in straight lines around the eaves. At the close of plaintiffs\u2019 evidence, defendant moved to dismiss the plaintiffs\u2019 action for failure to prove the allegations in the complaint. Judge Crissman denied defendant\u2019s motion, withdrew a juror and declared a mistrial, \u201cfor fear that something unfair will be done where they are concerned with their lawsuit. . . .\u201d\nFrom the order denying defendant\u2019s motion and declaring a mistrial, defendant appeals.\nMalone, Johnson, DeJarmon & Spaulding by C. C. Malone, Jr. and Albert L. Willis for plaintiff appellees.\nFolger & Folger by Larry Bowman for defendant appellant." }, "file_name": "0240-01", "first_page_order": 268, "last_page_order": 271 }