Martin v. Pope (Lawyers Weekly No. 011-035-18, 16 pp.) (Richard Dietz, J.) Appealed from Harnett County Superior Court (John Smith, J.) N.C. App.
Holding: Even though plaintiffs’ counsel also represented defendant’s wife in an unrelated family law proceeding, and even though – during the damages phase of this trial – plaintiffs introduced into evidence a child support order and equitable distribution affidavit from that other proceeding, the trial court did not abuse its discretion when it denied defendant’s motion to disqualify plaintiffs’ counsel. The trial court reasoned that the family court documents were public records and there was no evidence that plaintiffs’ counsel was aware of any confidential information about defendant that would require disqualification.
We affirm the trial court’s judgment finding defendant liable for concealing environmental contamination on property he sold to plaintiffs.
Although defendant moved for a directed verdict at the close of plaintiffs’ case, he did not renew that motion at the close of all the evidence. We are bound by our precedent holding that a motion for judgment notwithstanding the verdict must be preceded by a motion for a directed verdict at the close of all the evidence. Thus, we must hold that defendant’s JNOV arguments are waived on appeal.
While this was not an easy case for the jury or the trial court, our review of the record convinces us that the trial court did not abuse its discretion when it denied defendant’s motion for a new trial.
During deliberations, the jury sent the trial judge a question; after consultation with counsel, the judge answered the question. Because defendant did not object to the answer until after the court read the answer to the jury and permitted the jury to continue deliberations, and because defendant concedes that he initially approved the answer, defendant has failed to preserve his objection to the answer for appellate review.
Defendant waited until near the scheduled start of the trial to move to add his lessee as a third-party defendant. The trial court noted that, even if the lessee had caused the contamination on the land that defendant sold to plaintiffs, it would not affect plaintiffs’ claims, which were based on allegations that defendant knew of the contamination and concealed it from plaintiffs. The trial court did not abuse its discretion when it refused to permit the lessee to be added as a third-party defendant.
Finally, we find that plaintiffs abandoned their attorneys’ fees challenge by failing to submit an appellants’ brief on that issue. Defendant was prejudiced by plaintiffs’ placement of that argument in their appellees’ brief rather than in an appellants’ brief.
Had plaintiffs filed an appellants’ brief, defendant could have responded to the attorneys’ fees issue in an 8,750-word appellee’s brief. Instead, defendant was forced to respond to plaintiffs’ attorneys’ fees issue in a far shorter 3,750-word reply brief while also addressing plaintiffs’ arguments concerning his own claims on appeal. Thus, we hold that the interests of justice are best served by deeming plaintiffs’ attorneys’ fees issue abandoned for failure to assert it in an appellants’ brief.