Tort/Negligence – Wrongful Death – Damages – Civil Practice – Appeals – Preservation of Issues

Massengill v. Bailey (Lawyers Weekly No. 012-115-17, 29 pp.) (Linda McGee, C.J.) Appealed from Johnston County Superior Court (R. Frank Floyd, J.) N.C. App. Unpub.

Holding: After subtracting medical and funeral expenses, the jury awarded plaintiff $3,328,225.70 for damages related to the decedent’s pain and suffering from the time defendant punched him in the face (causing the decedent to fall and strike his head on a concrete floor) until he died nine days later, the decedent’s mother’s loss of companionship, and any other evidence which reasonably tended to establish the monetary value of the decedent to his mother. Defendant cites to no appellate opinions of this state wherein a trial court was found to have abused its discretion by denying a motion for a new trial pursuant to N.C. R. Civ. P. 59(b)(6) or (7) based upon an alleged “grossly excessive” jury verdict, and we find none.

We find no error in the trial or in the trial court’s denial of defendant’s motion for a new trial.

Defendant appears to be asking us to substitute our judgment for that of the jury and the trial court, which we cannot do. Defendant has not met his heavy burden of proving the trial court’s denial of his motion for a new trial constituted one of those extreme circumstances where the ruling probably amounted to a substantial miscarriage of justice and therefore constituted a manifest abuse of discretion.

Defendant objected to plaintiff’s expert witness, Dr. Abraham Oudeh, because Dr. Oudeh based his opinions solely on having read the medical examiner’s report and “he didn’t do the things – in the designation of expert, they said that he would read the medical records and read the file; he didn’t do it.” At no time did defendant object that the trial court was applying the incorrect standard, nor did defendant attempt to argue that Dr. Oudeh’s testimony failed to meet the specific requirements of the Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), standard as adopted by the Oct. 1, 2011, amendment to N.C. R. Evid. 702. A contention not raised in the trial court may not be raised for the first time on appeal.

In his third argument on appeal, defendant contends that plaintiff failed to present sufficient evidence to establish, beyond mere speculation, the “present monetary value” of decedent to his mother (services, companionship, care, assistance, comfort, guidance, et cetera).

In defendant’s initial brief, he contended that this argument applied to the judgment itself and not the denial of his motion for a new trial. However, in support of his third argument, defendant based his contentions on issues he raised in his Rule 59 motion for a new trial.

Defendant cannot use arguments he made in his motion for a new trial, nor conclusions the trial court either made or failed to make in its order denying defendant’s motion for a new trial, in support of his attempted direct appeal from the original judgment. Any issues appealable from the judgment had to have occurred during the trial, or in the judgment. Defendant cannot appeal from the judgment based upon actions that either occurred or failed to occur after entry of that judgment.

A contention not raised at trial, before entry of the order or judgement appealed, cannot be raised for the first time on appeal of that order or judgment. Defendant, in this argument, is attempting appeal from the judgment, not the order denying his motion for a new trial. Defendant’s argument in support of his motion for a new trial has no relevance. This argument was not preserved for appellate review and is therefore dismissed.

No error.