Bramhall v. Hurban

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1069
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1069 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

LOUCRETIA BRAMHALL,

Plaintiff

vs. From Gaston County No. 10-CVS-911 JOHN HURBAN aka MARCUS BRAMHALL, JEFFREY LIVINGSTON, JDL ENTERPRISES, INC. and CHOICEPARTS.NET,

Defendants.

Appeal by Defendant from judgment and order entered 28

January 2013 by Judge Nathaniel Poovey in Gaston County Superior

Court. Heard in the Court of Appeals 19 February 2014.

Stott, Hollowell, Palmer & Windham, L.L.P., by Randal S. West and Aaron C. Low, for Plaintiff.

Law Offices of Sanjay R. Gohil, PLLC, by Sanjay R. Gohil, for Defendant Hurban.

DILLON, Judge.

John Hurban a/k/a Marcus Bramhall (“Defendant Hurban”)

appeals (1) from a judgment entered upon a jury verdict awarding

compensatory and punitive damages in favor of Loucretia Bramhall -2- (“Plaintiff”); and (2) from an order denying his motion for a

new trial. For the following reasons, we dismiss in part and

affirm in part.

I. Factual & Procedural Background

On 22 February 2010, Plaintiff filed a complaint in Gaston

County Superior Court alleging, inter alia, that she and

Defendant had operated a pizza equipment supply business, Pizza

Equipment Supply, Inc. (“PESI”), but that Defendant had not been

active in the management or operations of PESI since before

2008; that she had filed an action for divorce from Defendant

Hurban in October 2009 and had since been granted “exclusive

possession of [the] property upon which [PESI’s] offices are

located”; that Defendant Hurban and the other Defendants –

Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net –

had “engaged in a joint venture and/or business agreement

whereby they [sought] to directly compete with [PESI]”; that a

break-in had occurred at the PESI offices on or about 9 January

2010, at which time computer equipment and Plaintiff’s personal

credit card were removed from the offices; that Defendant Hurban

had acknowledged that he had taken part in removing the computer

equipment; and that, with respect to the aforementioned credit

card, Defendants had “caused to be charged against the credit of -3- the Plaintiff the sum of $20,500.00” without Plaintiff’s

authority or consent. Supported by these allegations,

Plaintiff’s complaint asserted claims against each Defendant,

jointly and severally, for larceny, conversion, and conspiracy,

seeking both compensatory and punitive damages.

On 3 June 2010, Defendant Hurban filed an answer denying

liability. None of the other Defendants filed an answer or

other pleading or motion in response to Plaintiff’s complaint.

Rather, Defendant Livingston sent an email to Plaintiff’s

counsel stating that “the credit card in question shows

[Defendant Hurban] as an authorized user. . . . Please remove

me and my company from this obvoius [sic] divorce dispute[.]”

Plaintiff’s counsel forwarded Defendant Livingston’s email to

the Gaston County Clerk of Court.

The matter came on for a jury trial in Gaston County

Superior Court on 13 November 2012. Prior to the start of the

trial, Plaintiff moved for an entry of default as to Defendants

Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net

(hereinafter, the “Defaulting Defendants”), citing their failure

to file responsive pleadings. The trial court granted

Plaintiff’s motion for entry of default in open court,

indicating that “the entry of default is without prejudice to -4- Defendant [Hurban] . . . with respect to any of the allegations

in the complaint that refer to Defendants collectively” and that

the court would “enter that default without prejudice to

severing those particular portions of the complaint that deal

with all defendants instead of just those separate Defendants.”

The next day, counsel for the Defaulting Defendants moved

to set aside the entry of default. The court, however, denied

the motion, concluding that all Defendants had been properly

served with process and that Defendant Livingston’s email to

Plaintiff’s counsel did “not constitute an answer pursuant to

the rules and [was] not a response.”

On 16 November 2012, the jury returned a verdict awarding

Plaintiff $21,471.45 in compensatory damages and $1,850,000.00

in punitive damages. Thereafter, Defendant Hurban and the

Defaulting Defendants each moved for a new trial and, in the

alternative, requested that the punitive damages award be

reduced pursuant to N.C. Gen. Stat. § 1D-25(b) (2011), which

generally limits the punitive damages award against a particular

defendant to the greater of three times the amount of

compensatory damages awarded or $250,000.00. By judgment and

order entered 28 January 2013, the trial court denied

Defendants’ motions for a new trial, but reduced the punitive -5- damages award to $250,000.00 per Defendant. Defendant Hurban

now appeals.

II. Analysis

A. Motion to Set Aside Entry of Default

Defendant Hurban raises a number of arguments in contending

that the trial court erred in its entry of default as to the

Defaulting Defendants and further erred in denying the

Defaulting Defendants’ motion to set aside the entry of default.

The Defaulting Defendants, however, have not appealed. See

N.C.R. App. P. 3 (mandating that the notice of appeal “specify

the party or parties taking the appeal”). Moreover, “only a

‘party aggrieved’ may appeal a trial court order or judgment,”

Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000),

and Defendant Hurban cites no authority demonstrating his

standing to appeal as an aggrieved party on behalf of the

Defaulting Defendants under these circumstances. See N.C.R.

App. P. 28(b)(6) (providing that “[t]he body of the argument . .

. shall contain citations of the authorities upon which the

appellant relies”). We note the trial court’s indication that

the entry of default was “without prejudice to Defendant

[Hurban] . . . with respect to any of the allegations in the

complaint that refer to Defendants collectively” and that, as -6- discussed further infra, the trial court revised its original

jury instructions to clarify the nature of Defendant Hurban’s

liability as compared to that of the Defaulting Defendants.

Defendant Hurban’s purported appeal on behalf of the Defaulting

Defendants and his arguments in support thereof are,

accordingly, dismissed. Gaskins v. Blount Fertilizer Co., 260

N.C. 191, 195, 132 S.E.2d 345, 347 (1963) (appeal dismissed

where party was “not aggrieved by the judicial order entered”).

B. Motion for a New Trial

Defendant Hurban further contends that the trial court

erred when it denied his motion for a new trial. We disagree.

Although Defendant Hurban fails to set out the relevant

standard of review as required by our Appellate Rules, see

N.C.R. App. P. 28(b)(6) (providing that “[t]he argument shall

contain a concise statement of the applicable standard(s) of

review for each issue, which shall appear either at the

beginning of the discussion of each issue or under a separate

heading placed before the beginning of the discussion of all the

issues”), the governing standard is as follows:

A motion for a new trial pursuant to Rule 59 is generally addressed to the sound discretion of the trial court. Appellate review of the trial court’s ruling on a Rule 59 motion is strictly limited to the determination of whether the record -7- affirmatively demonstrates a manifest abuse of discretion by the judge. A manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof. An appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice.

Langwell v. Albemarle Family Practice, PLLC, 203 N.C. App. 666,

669-70, 692 S.E.2d 476, 480 (2010) (quotation marks and

citations omitted).

Rule 59 provides that a new trial may be granted in the

case of “[e]xcessive . . . damages appearing to have been given

under the influence of passion or prejudice[,]” N.C. Gen. Stat.

§ 1A-1, Rule 59(a)(6) (2011), and, though not specifically

citing this provision on appeal, Defendant Hurban contends that

the trial court erred in denying his motion for a new trial on

grounds that “there was sufficient evidence . . . that the

jury’s punitive damages award was given with passion and

prejudice and was vastly disproportionate to the evidence

presented at trial.” Defendant Hurban points to the jury’s

punitive damages award, which he asserts was “more than eighty-

four times” the compensatory damage award of $21,471.45.

Regarding this award, we note that the trial court reduced it -8- significantly to the statutory maximum of $250,000.00. See N.C.

Gen. Stat. § 1D-25(b). Defendant Hurban also points to Samons

v. Meymandi, 9 N.C. App. 490, 177 S.E.2d 209 (1970), in support

of his position on this issue. However, Defendant Hurban cites

to this case only generally, without attempting to draw any

specific parallels between the circumstances of that case and

the case at hand. In Samons, we stated that the jury erred by

awarding punitive damages based on the specific facts of that

case, but that the error “was cured, however, when the trial

judge set the verdict aside.” Id. at 496, 177 S.E.2d at 212-13.

Likewise, in the present case, any error by the jury in awarding

punitive damages “more than eighty-four times” the compensatory

damages amount was cured when the trial court reduced the award.

Accordingly, this argument is overruled.

Defendant also cites Plaintiff’s testimony concerning “her

failed marriage to [Defendant], her failed business

relationships with [Defendant], as well as pending criminal

investigations by federal authorities for crimes that

[Defendant] was never charged with committing” as outside the

scope of this matter and as indicative of Plaintiff’s “attempt

to prejudice the jury” against him. Even assuming arguendo that

portions of Plaintiff’s testimony were not relevant to her -9- conversion claim – for which punitive damages are recoverable in

North Carolina, see, e.g., Mace v. Pyatt, 203 N.C. App. 245,

256-57, 691 S.E.2d 81, 90 (2010) – the record reveals ample

relevant evidence supporting the trial’s court decision to deny

Defendant a new trial on this basis. For instance, the evidence

indicated that Defendant broke into the place of business of his

former wife and business partner (Plaintiff), stole her computer

and credit card, and attempted to convert her funds to his own

foreign bank account using the stolen credit card. In light of

this evidence and the jury’s compensatory damages award, we

cannot say that the trial court abused its discretion in finding

that there was the requisite evidence of an “aggravating factor”

– fraud, malice, or willful or wanton conduct – to sustain the

punitive damages award. See N.C. Gen. Stat. § 1D-15(a) (2011)

(providing that punitive damages are awardable “if the claimant

proves that the defendant is liable for compensatory damages and

that [fraud, malice, or willful or wanton conduct] was present

and was related to the injury for which compensatory damages

were awarded”).

Finally, we turn to Defendant Hurban’s contention that he

was prejudiced by a portion of the trial court’s jury

instructions, which he asserts “had the natural tendency to more -10- likely than not confuse the members of the jury as to whether or

not all four defendants were liable for conversion, conspiracy,

and punitive damages.” Our review of the record reveals that

Defendant Hurban did not object to the complained of

instructions and has thus failed to preserve the issue for

appeal. N.C.R. App. P. 10(a)(2) (providing that “[a] party may

not make any portion of the jury charge or omission therefrom

the basis of an issue presented on appeal unless the party

objects thereto before the jury retires to consider its

verdict”); Lumley v. Capoferi, 120 N.C. App. 578, 582, 463

S.E.2d 264, 266 (1995) (concluding that plaintiffs failed to

preserve issue for appellate review where “plaintiffs had

several opportunities to object to the proposed special

instruction before the jury retired, but failed to do so”).

Even assuming arguendo that Defendant had preserved this issue

for appellate review, after careful review of the instructions,

we discern no prejudice to Defendant – certainly none that would

amount to reversible error – inherent in the jury instructions

at issue. Rather, they reflect a reasonably tailored effort to

clarify the court’s prior instructions and, at least in part, to

distinguish Defendant Hurban’s liability from that of the

Defaulting Defendants. -11- III. Conclusion

For the foregoing reasons, we (1) dismiss Defendant

Hurban’s contentions relating to the trial court’s entry of

default and denial of the Defaulting Defendants’ motion to set

aside the entry of default, as Defendant Hurban has failed to

demonstrate standing to appeal from those rulings; and (2)

affirm the trial court’s decision to deny Defendant Hurban’s

motion for a new trial.

DISMISSED in part; AFFIRMED in part.

Judges BRYANT and STEPHENS concur.

Report per Rule 30(e).