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NO. COA10-1042 NORTH CAROLINA COURT OF APPEALS Filed: MICHAEL GEORGE SMITH, Plaintiff, v. GRADY LEE WHITE, Defendant. From Cleveland County No. 08 CVS 883 5 July 2011

1.

Motor Vehicles -- diminution of value -- evidence of cost of repairs -- improperly excluded -- new trial properly granted The trial court did not err in a vehicular accident case by setting aside the jury verdict and granting plaintiff a new trial on the issue of diminution in value of his motorcycle. The trial court properly concluded that evidence regarding the cost of repairs of plaintiff's motorcycle should not have been excluded; the cost of the repairs was relevant; the admission of such evidence would not cause a jury to award double recovery; and plaintiff was entitled to a new trial on the issue of diminution in value.

2.

Appeal and Error -- negligence -- contributory negligence -- jury found in plaintiff's favor Plaintiff's argument in a negligence case that the trial court erred in submitting the issue of contributory negligence to the jury was dismissed as the jury found plaintiff not liable under a theory of contributory negligence and the trial court entered judgment in accordance with the jury verdict.

3.

Motor Vehicles -- negligence -- compromise verdict -- motion for new trial -- properly denied The trial court did not err in a negligence case arising out of a vehicular accident by refusing to grant

plaintiff's motion for a new trial. A juror's statements may not be used in determining whether a compromise verdict was delivered and the award may have indicated that the jury did compensate plaintiff some amount for his pain and suffering. 4. Costs -- offer of judgment -- exceeded jury award -- properly awarded The trial court did not abuse its discretion in a negligence case by awarding costs to defendant where defendant's offer of judgment to plaintiff exceeded plaintiff's jury award.

NO. COA10-1042 NORTH CAROLINA COURT OF APPEALS Filed: MICHAEL GEORGE SMITH, Plaintiff, v. GRADY LEE WHITE, Defendant. From Cleveland County No. 08 CVS 883 5 July 2011

Appeal by plaintiff from judgment entered 21 January 2010 by Judge Yvonne Mims Evans in Cleveland County Superior Court. Heard in the Court of Appeals 25 January 2011. The Law Offices of Jason E. Taylor, Taylor, for plaintiff-appellant. P.C., by Jason E.

McAngus, Goudelock & Courie, PLLC, by Heather G. Connor and Jeffrey B. Kuykendal, for defendant-appellee. BRYANT, Judge. Because the trial court's order awarding plaintiff a new trial due to an error at law occurring during trial was

appropriate, we affirm.

Where plaintiff prevails at trial on

the issue of contributory negligence, plaintiff's appeal of this issue is dismissed. Because the trial court did not abuse its

discretion in finding that the jury verdict, which benefitted plaintiff, was not a compromise verdict, we affirm the trial

-2court's denial of plaintiff's motion for a new trial. Finally, where defendant was entitled to an award of costs under Rule 68(a), the trial court did not abuse its discretion in awarding costs to defendant. Facts and Procedural History Plaintiff and defendant were involved in an automobile

accident on 19 September 2007. Plaintiff, who was driving a motorcycle, alleged that defendant made a left turn in front of him, causing the accident. Plaintiff suffered personal injuries as a result of this collision. Plaintiff's motorcycle was also damaged, requiring repairs. Plaintiff brought suit against defendant on 2 April 2008 alleging that defendant's negligence caused the accident. On 22 May 2008, defendant answered, asserting as an affirmative

defense that plaintiff's contributory negligence resulted in the collision. Plaintiff replied pleading that defendant had the

last clear chance to avoid the accident. Defendant paid for the repairs to plaintiff's motorcycle. However, in a pretrial motion in limine, defendant sought to exclude evidence of the cost of repairs to the motorcycle. Over plaintiff's objection the trial court granted defendant's

-3motion, ruling that only the damage to the motorcycle and the work necessary to repair it were relevant issues for the jury. On 21 January 2009, the jury returned a verdict finding defendant negligent in causing the accident. Plaintiff was found not liable under the doctrine of contributory negligence. In addition, the jury found that plaintiff's motorcycle had not sustained a diminution in value. On 1 February 2009, plaintiff filed a Rule 59 motion for a new trial. Plaintiff's motion alleged that the trial court

committed an error of law by not allowing evidence of the cost of repair to go to the jury, that there was insufficient

evidence to justify the verdict finding no diminution in value to the motorcycle, and that the verdict was contrary to law with respect to the issue of property damage. On plaintiff amended medical 26 February in 2010, judgment costs. retaining was On entered 19 March awarding 2010, award an of

$6,335.00

medical

judgment costs and

was

entered

plaintiff's of

granting

defendant

recovery

costs

from

plaintiff in accord with Rule 68. Also, on 19 March 2010, the trial court granted in part plaintiff's motion for a new trial only as to diminution in value. Plaintiff's motion on all other grounds was denied.

-4Plaintiff and defendant both appeal. ________________________________________________________ Defendant's Appeal On appeal, defendant argues that (I) the trial court erred in granting plaintiff's Rule 59 motion for a new trial. I. Defendant argues that the trial court erred in setting

aside the jury verdict and granting plaintiff a new trial on the issue of diminution in value. We disagree. According to Rule 59, a new trial may be granted for the reasons enumerated in the Rule. By using the word may, Rule 59 expressly grants the trial court the discretion to determine whether a new trial should be granted. Generally, therefore, the trial court's decision on a motion for a new trial under Rule 59 will not be disturbed on appeal, absent abuse of discretion. [This Court] recognize[s] a narrow exception to the general rule, applying a de novo standard of review to a motion for a new trial pursuant to Rule 59(a)(8), which is an error in law occurring at the trial and objected to by the party making the motion. Kor Xiong v. Marks, 193 N.C. App. 644, 654, 668 S.E.2d 594, 601 (2008) (citing Greene v. Royster, 187 N.C. App. 71, 77-78, 652 S.E.2d 277, 26 282 N.C. (2007)); App. see also 266-67, Philco 215 Finance S.E.2d Corp. v.

Mitchell,

264,

823,

824-25

(1975). Because the trial court's decision to grant a new trial

-5was based on an "error in law occurring at the trial and

objected to by the party making the motion," we review the trial court's ruling de novo. See N.C. Gen. Stat.

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