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 court'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.
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 motion, ruling that only the damage to the motorcycle and the work necessary to repair it were relevant issues for the jury.
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 26 February 2010, judgment was entered awarding plaintiff $6,335.00 in medical costs. On 19 March 2010, an amended judgment was entered retaining plaintiff's award of medical costs and granting defendant recovery of 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.
Plaintiff and defendant both appeal.
On appeal, defendant argues that (I) the trial court erred in granting plaintiff's Rule 59 motion for a new trial.
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.
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, 282 (2007)); see also Philco Finance Corp. v. Mitchell, 26 N.C. App. 264, 266-67, 215 S.E.2d 823, 824-25 (1975). Because the trial court's decision to grant a new trial was 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. § 1A-1, Rule 59(a)(8) (2011).
At trial in the instant case plaintiff claimed that his motorcycle suffered a diminution in value due to the accident, despite repairs to the motorcycle. Upon defendant's objection the trial court excluded evidence of the actual cost to repair plaintiff's motorcycle. After hearing post-trial motions by plaintiff and defendant the trial court, citing U.S. Fidelity & Guaranty Co. v. P. & F. Motor Express, Inc., 220 N.C. 721, 18 S.E.2d 116 (1942), concluded that evidence regarding the cost of repairs should not have been excluded and granted plaintiff a new trial on the issue of diminution in value.
In U.S. Fidelity our Supreme Court granted the defendant a new trial after holding that the trial court erred in excluding evidence concerning the costs of repairing the plaintiff's vehicle. Id. Herein, we quote Fidelity at length because we agree, as did the trial court, that Fidelity is dispositive of this issue.
Id. at 722-23, 18 S.E.2d at 117 (internal citations omitted).
Defendant argues that the trial court erred in granting plaintiff's motion for a new trial based on the prior exclusion of evidence of cost of repairs because defendant had already paid for the repairs. Defendant vainly attempts to distinguish Fidelity from the instant case because the defendant in Fidelity attempted to elicit testimony regarding the estimated cost of repair.
Defendant argues that because plaintiff's repairs had been paid for prior to trial proceedings, Fidelity is not applicable. However, defendant fails to acknowledge that the Fidelity court, in discussing the conflict regarding whether cost of repair is competent evidence of market value of property before and after injury, found that "the weight of authority [is] in favor of the admissibility of such evidence." Id. at 723, 18 S.E.2d at 117. Therefore, the issue before the Fidelity Court was whether evidence of estimated cost of repair, as opposed to actual cost of repair already paid, should be admitted. As to that issue, the Court stated even though "evidence of such an estimate of the cost of repairs might not be as convincing as evidence of the cost of the actual repairs, we think this difference relates to the weight thereof rather than to its competency." Id. at 723, 18 S.E.2d at 117. The Court made clear that where repairs have been made and paid for, such evidence is admissible to show the measure of damages.
Id. at 723-24, 18 S.E.2d at 117 (internal citations omitted).
Defendant argues in the alternative that, even if the cost of the repairs was relevant, admitting such evidence would permit a jury to award double recovery. Citing Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C. App. 721, 600 S.E.2d 473, (2004), defendant emphasizes that our Court has held that a plaintiff may not recover already-received costs.
In Sprinkle, this Court held that the plaintiff received an impermissible double recovery when plaintiff was awarded damages for both diminution in value and damages for the cost of repair to his boat. However, Sprinkle does not preclude a trial court from admitting evidence of the cost of repair in determining damages. Id. at 727, 600 S.E.2d at 477 ("As to this [diminution in] value, the Court can consider cost of repair. . . . [S]uch cost would be some evidence to guide the jury in determining the difference in the market value of the [property] before and after the injury."). Therefore, because the
For these reasons we hold that the trial court did not err in granting plaintiff's motion for a new trial.
Plaintiff argues that the trial court erred (II) in submitting the issue of contributory negligence to the jury, (III) in denying plaintiff's motion for a new trial due to the jury rendering a compromise verdict, and (IV) in awarding costs to defendant.
On appeal, plaintiff argues that the trial court erred in submitting the issue of contributory negligence to the jury.
We note that the jury found plaintiff not liable under a theory of contributory negligence and the trial court entered judgment in accordance with the jury verdict.
"[An] [a]ppellant may not complain of alleged error in respect to an issue answered in his favor." Digsby v. Gregory, 35 N.C. App. 59, 61-62, 240 S.E.2d 491, 493 (1978) (overruled on other grounds by Unigard Carolina Ins. Co. v. Dickens, 41 N.C. App. 184, 186, 254 S.E.2d 197, 198 (1979)). For a party to be aggrieved, he must have rights which were substantially affected by a judicial order. Where a party is not aggrieved by a judicial order entered, as in the present case, his appeal will be dismissed. Gaskins v. Blount Fertilizer Co., 260 N.C. 191, 195, 132 S.E.2d 345, 347 (1963) (per curiam) (plaintiff was not allowed to enjoin a foreclosure order where plaintiff held no property rights in the property, and therefore could not be aggrieved by the court's granting of a foreclosure sale). We therefore dismiss plaintiff's appeal as to this issue.
Next, plaintiff argues the trial court erred in refusing to grant his motion for a new trial because the jury issued a compromise verdict. We disagree.
An appeal from a trial court's denial of a motion for new trial because of an alleged compromise verdict is reviewed for an abuse of discretion. Hughes v. Rivera-Ortiz, 187 N.C. App. 214, 217-18, 653 S.E.2d 165, 168 (2007). The party seeking to establish the abuse of discretion bears the burden of showing that the verdict was a compromise. Id.
"A compromise verdict is one in which the jury answers the issues without regard to the pleadings, evidence, contentions of the parties or instructions of the court." Piedmont Triad Reg'l Water Auth. v. Lamb, 150 N.C. App. 594, 597, 564 S.E.2d 71, 74 (2002). The dollar amount of the verdict alone is insufficient to set aside the verdict as being an unlawful compromise. Id. at 598, 564 S.E.2d at 74.
Plaintiff first argues that comments allegedly made by jurors after the trial concluded indicated a compromise verdict. However, a juror's statements may not be used in determining whether a compromise verdict was delivered. See N.C. Gen.Stat. § 8C-1, Rule 606(b) (2011) ("Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations . . . Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."). "[A]fter [the jurors'] verdict has been rendered and received by the court, and they have been discharged, jurors will not be allowed to attack or overthrow it, nor will evidence from them be received for such purpose." Craig v. Calloway, 68 N.C. App. 143, 150, 314 S.E.2d 823, 827 (1984). "If any evidence is to be admitted to impeach, attack, or overthrow a verdict, it must come from a source other than from the jurors themselves." Id. Accordingly, plaintiff cannot use juror comments as evidence supporting his motion for a new trial.
Second, plaintiff argues that, based on Maness v. Bullins, a compromise verdict was delivered because jurors awarded medical expenses but no damages for pain and suffering. Maness v. Bullins, 27 N.C. App. 214,
The record in the instant case indicates that plaintiff suffered relatively minor injuries that did not require extensive hospitalization or treatment. In addition, from the jury verdict it is not clear, but it is entirely possible, that some amount of damages could have been intended for pain and suffering. Plaintiff presented evidence showing a total of $5,457.47 in medical bills. Testimony by plaintiff concerning his pain and suffering was countered by defendant, who provided evidence contradicting some of plaintiff's medical expenses. The jury awarded plaintiff $6,350.00 in medical expenses. This award may indicate that the jury did compensate plaintiff some amount for his pain and suffering. On these facts, we must reject plaintiff's argument as to a compromise verdict and affirm the trial court's denial of plaintiff's motion for a new trial on negligence.
Plaintiff's final argument on appeal is that the trial court erred in awarding costs to defendant where the damages awarded to plaintiff were inadequate as a matter of law. We disagree.
Our Court reviews a trial court's taxing of costs under an abuse of discretion standard. Vaden v. Dombrowski, 187 N.C. App. 433, 437, 653 S.E.2d 543, 545 (2007). "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Id. at 437, 653 S.E.2d at 545-46.
On 13 February 2009, defendant made plaintiff an offer of judgment for the lump sum of $10,001.00, pursuant to N.C.Gen.Stat. § 1A-1, Rule 68(a). Plaintiff did not accept defendant's offer of judgment. Defendant then filed a motion for costs on 26 January 2010. The trial court granted an award of costs to defendant, under Rule 68, in an amended judgment on 19 March 2010.
Under Rule 68(a),
N.C. Gen Stat. § 1A-1, Rule 68(a) (2011). As defendant's offer to plaintiff exceeded plaintiff's jury award, the trial court properly awarded costs incurred after the offer to defendant, and there was no abuse of discretion.
Affirmed in part; dismissed in part.
Judges McGEE and BEASLEY concur.