{ "id": 8526967, "name": "WACHOVIA BANK & TRUST COMPANY, N.A. v. VERNON L. GUTHRIE and JOYCE GUTHRIE", "name_abbreviation": "Wachovia Bank & Trust Co. v. Guthrie", "decision_date": "1984-04-03", "docket_number": "No. 833DC162", "first_page": "622", "last_page": "628", "citations": [ { "type": "official", "cite": "67 N.C. App. 622" } ], "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": "158 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572936 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0352-01" ] }, { "cite": "207 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567981, 8567949, 8568089, 8568058, 8568031 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0661-02", "/nc/285/0661-01", "/nc/285/0661-05", "/nc/285/0661-04", "/nc/285/0661-03" ] }, { "cite": "205 S.E. 2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11300654 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0163-01" ] }, { "cite": "223 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571115 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0551-01" ] }, { "cite": "297 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "307 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561451 ], "year": 1982, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0258-01" ] }, { "cite": "307 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "\"plain error\" extended in dicta to civil cases" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526586 ], "year": 1983, "pin_cites": [ { "parenthetical": "\"plain error\" extended in dicta to civil cases" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0211-01" ] }, { "cite": "74 L.Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "pin_cites": [ { "parenthetical": "stating \"plain error\" rule" } ], "opinion_index": 0 }, { "cite": "103 S.Ct. 381", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "pin_cites": [ { "parenthetical": "stating \"plain error\" rule" } ], "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "pin_cites": [ { "parenthetical": "stating \"plain error\" rule" } ], "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F. 2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 624, "char_count": 11806, "ocr_confidence": 0.794, "pagerank": { "raw": 2.944072197869168e-07, "percentile": 0.8483392274993639 }, "sha256": "8e37d74cc608ebf58ac8629b5028deecfb200125344cc78e9f10fac086792126", "simhash": "1:eadb9789bf2d8130", "word_count": 1956 }, "last_updated": "2023-07-14T17:10:21.361774+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Hill concur." ], "parties": [ "WACHOVIA BANK & TRUST COMPANY, N.A. v. VERNON L. GUTHRIE and JOYCE GUTHRIE" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nIn its argument, plaintiff purports to bring forward several exceptions and assignments of error relating to the trial court\u2019s instructions to the jury. Briefly summarized, plaintiffs arguments are: (1) that the court failed to instruct the jury properly on the law arising from the facts of the case, (2) that the court failed to instruct the jury properly on the substance and effect of the parties\u2019 stipulations, (3) that the court made several erroneous statements in its summary of the evidence that were not corrected, and (4) that the court did not correctly answer a question raised by the jury after deliberations had begun.\nRule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides in part as follows:\nNo party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.\nApplying the rule here, it does not appear that any of plaintiffs exceptions relating to the jury instructions are properly before this Court. The record affirmatively discloses that plaintiff was afforded an opportunity, as required by the rule, to note its objection to the jury charge prior to the retirement of the jury. Neither the record nor the transcript, however, indicate that the required objection was made.\nIn its memorandum of additional authority, plaintiff cites us to the recent case of State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), for the proposition that, where an appellant fails to object to the jury charge as required by Rule 10(b)(2), the court may nevertheless review the charge for \u201c \u2018[p]lain errors or defects affecting substantial rights.\u2019 \u201d Id. at 660, 300 S.E. 2d at 378, quoting Rule 52(b), Fed. R. Crim. P. See U.S. v. McCaskill, 676 F. 2d 995 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed. 2d 513 (1982) (stating \u201cplain error\u201d rule). Plaintiff notes that State v. Odom appears to limit the application of the \u201cplain error\u201d rule to criminal cases but contends that the instant case presents appropriate circumstances for extending the rule to civil actions. We disagree. Our reading of State v. Odom convinces us that our Supreme Court intended the \u201cplain error\u201d rule to apply only in criminal cases. We are aided to this interpretation by our awareness that Appellate Rule 2 allows us to suspend the operation of the Rules of Appellate Procedure in appropriate cases to, among other things, \u201cprevent manifest injustice to a party.\u201d N.C. R. App. P. 2. Therefore, we decline to enlarge the \u201cplain error\u201d rule adopted in State v. Odom to encompass civil cases. But cf. In re Will of Maynard, 64 N.C. App. 211, 307 S.E. 2d 416 (1983) (\u201cplain error\u201d extended in dicta to civil cases). Assuming arguendo that the \u201cplain error\u201d exception to the operation of Rule 10(b)(2) should extend to civil cases, we perceive no plain error sufficient to warrant a waiver of the operation of Rule 10(b)(2) in this case.\n\u201cRule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory.\u201d State v. Fennell, 307 N.C. 258, 263, 297 S.E. 2d 393, 396 (1982). Our review of the record in this case does not reveal any error in the court\u2019s charge to the jury that is so fundamental that we would invoke our powers under Appellate Rule 2 to suspend Rule 10(b)(2) and consider plaintiffs relevant exceptions and assignments of error and the arguments advanced in support of them.\nII\nPlaintiff next contends that it was error for the trial court to refuse to allow into evidence the internal memorandum written by Mr. Bennett, an employee witness for plaintiff, concerning the transfer of the \u201cCarmen Louise.\u201d Plaintiff contends that this memorandum corroborates Mr. Bennett\u2019s testimony regarding the release of the boat as security for the note.\nIn North Carolina, corroborative evidence in the form of a prior consistent statement, written or verbal, is admissible evidence provided that it is substantially consistent with the witness\u2019s testimony at trial. See Brandis, N.C. Evidence \u00a7\u00a7 51-52 (1982). Where the statement goes beyond corroboration and touches upon matters not in evidence, it is not admissible. Id.; e.g., State v. Warren, 289 N.C. 551, 223 S.E. 2d 317 (1976). With regard to the admissibility of corroborative evidence in civil cases, trial judges in North Carolina are allowed considerable discretion. Miller v. Kennedy, 22 N.C. App. 163, 205 S.E. 2d 741, cert. denied, 285 N.C. 661, 207 S.E. 2d 755 (1974); Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968). See generally, Brandis, supra, \u00a7 51.\nHere, the memorandum that plaintiff offered into evidence, while corroborating Bennett\u2019s testimony, contained extraneous matters not in evidence. Its admission could have unfairly prejudiced defendants; its exclusion worked no prejudice to plaintiff. The trial court did not abuse its discretion in refusing to allow the memorandum into evidence.\nIII\nFinally, plaintiff excepts to and assigns as error the trial court\u2019s entry of judgment and the denial of its motion under G.S. 1A-1, Rule 59(a), for a new trial. The arguments advanced in support of these assignments of error depend on our finding merit in plaintiffs previous arguments, considered and rejected above. Accordingly, we find that the evidence does support the verdict and that judgment was properly entered thereon. It was not error for the court to deny plaintiffs motion for a new trial. The judgment appealed from is affirmed.\nNo error.\nJudges Hedrick and Hill concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Mason and Phillips, by L. Patten Mason, for plaintiff appellant.", "H. Buckmaster Coyne for defendant appellee." ], "corrections": "", "head_matter": "WACHOVIA BANK & TRUST COMPANY, N.A. v. VERNON L. GUTHRIE and JOYCE GUTHRIE\nNo. 833DC162\n(Filed 3 April 1984)\n1. Appeal and Error \u00a7 31.1\u2014 plain error rule \u2014 inapplicability to civil cases\nThe \u201cplain error\u201d rule for errors in the charge applies only in criminal cases. However, assuming that the \u201cplain error\u201d exception to the App. Rule 10(b)(2) requirement that objection to the charge be made before the jury retires should extend to civil cases, there was no fundamental error in this case which would cause the appellate court to invoke its powers under App. Rule 2 to suspend the operation of App. Rule 10(b)(2).\n2. Witnesses \u00a7 5\u2014 internal memorandum \u2014 inadmissibility for corroboration\nThe trial court did not abuse its discretion in refusing to allow into evidence an internal memorandum written by plaintiffs employee for the purpose of corroborating the employee\u2019s testimony where the memorandum contained extraneous matters not in evidence and its admission could have unfairly prejudiced defendants.\nAppeal by plaintiff from Rountree, Judge. Judgment entered 4 October 1982 in District Court, CARTERET County. Heard in the Court of Appeals 17 January 1984.\nThis is a civil action wherein plaintiff, a bank, seeks to recover from defendants money allegedly owed to it as the unpaid balance on a promissory note.\nOn or about 28 November 1975, defendants executed a promissory note in favor of plaintiff bank in the original amount of $5,457.26. The note was secured by a mortgage on defendants\u2019 fishing trawler, the \u201cCarmen Louise.\u201d The terms of the note provided for payment of principal and interest in forty-two monthly installments of $151.96, beginning in February of 1976. Defendants made payments on the note until June of 1977.\nOn 1 December 1981, plaintiff instituted the present action seeking to recover the alleged unpaid balance of $4,066.04 due on the note plus interest and attorney fees. Defendants responded, denying the material allegations of the complaint and asserting in substance the affirmative defense of accord and satisfaction. Defendants alleged that, at the request of plaintiff, they had signed certain documents purporting to transfer the \u201cCarmen Louise\u201d to plaintiff, that plaintiff thereafter sold the \u201cCarmen Louise\u201d to a third party, and that, at the time of the transfer, the \u201cCarmen Louise\u201d had a value in excess of the amount owed on the note.\nBoth sides presented evidence at trial. The testimony of Mr. Bennett, an officer of plaintiff bank who supervised the loan to defendants, constituted the plaintiffs case in chief. Plaintiffs witnesses in rebuttal were Mr. Bennett again, Mr. Russell, the owner-operator of a boat repair yard, and Mr. Oglesby, the third party to whom the boat was allegedly sold. Defendant Vernon L. Guthrie testified for the defendants.\nIn addition to the factual allegations in the complaint, plaintiff s evidence tended to show that the \u201cCarmen Louise\u201d had been under repair at a repair yard owned and operated by Mr. Russell and that defendants could not pay the bill for the repairs. Consequently, the boat lay unused in the water at Russell\u2019s dock for a period of several months until it sank. After determining that the repair bill would not be paid by defendants, Mr. Russell consulted Mr. Bennett about removing the \u201cCarmen Louise.\u201d The two of them arranged to transfer the boat to Mr. Oglesby for an unspecified price. The arrangements for the transfer included having defendants sign certain documents \u201creleasing\u201d the boat to plaintiff bank. The exact nature of the documents signed is not clear and they have not been made part of the record. Plaintiffs evidence also tended to show that the value of the \u201cCarmen Louise\u201d at the time of the transfer to Oglesby was less than the amount said to be owing on the note. Plaintiff asserts that it received nothing from the transfer of the boat.\nDefendants\u2019 evidence tended to show basically the same facts as plaintiffs evidence. Defendants were behind in their payments to the bank and owed Mr. Russell a substantial sum for repairs on the boat. Vernon Guthrie testified that he signed certain papers at the request of Mr. Bennett in order to \u201cturn the boat over to Wachovia so they could get rid of it.\u201d The major material difference in the evidence presented by plaintiff and defendants pertained to the estimated value of the boat when it was transferred to Oglesby. Defendant Vernon Guthrie gave his opinion that the fair market value of the \u201cCarmen Louise\u201d at that time was between eight and ten thousand dollars, in excess of the amounts allegedly due on the note and on the repair bill. Defendants contend that their release of the vessel to Wachovia and its subsequent sale constituted accord and satisfaction of the amount due on the note.\nPlaintiff submitted several documents into evidence, including the promissory note and security agreement. At the close of its rebuttal testimony, plaintiff tendered as evidence an internal memorandum from Mr. Bennett to other officers in plaintiff Wachovia Bank. The memorandum explained what was happening with the \u201cCarmen Louise\u201d and the promissory note. Plaintiff asserted that the memorandum was offered to corroborate Mr. Bennett\u2019s testimony. Upon the objection of counsel for defendants, the court did not allow the memorandum into evidence.\nThe court then instructed the jury on the law, summarized the evidence and submitted the following issue: \u201cWhat amount, if any is the plaintiff entitled to recover of the defendant?\u201d Although exceptions to the jury instructions and the summary of the evidence are noted in the record, neither party objected to the jury charge prior to the retirement of the jury. To the issue submitted, the jury answered, \u201cNone,\u201d and the court entered judgment for the defendants on this verdict. Plaintiffs motion for a new trial was denied and plaintiff appealed.\nMason and Phillips, by L. Patten Mason, for plaintiff appellant.\nH. Buckmaster Coyne for defendant appellee." }, "file_name": "0622-01", "first_page_order": 654, "last_page_order": 660 }