              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-605

                                  Filed: 5 April 2016

Wake County, No. 13 CVS 10610

CHRISTOPHER HAYES, Plaintiff,

             v.

SCOTT WALTZ, Defendant.


      Appeal by defendant and cross-appeal by plaintiff from judgment entered 11

September 2014 and order entered 22 October 2014 by Judge Donald W. Stephens in

Wake County Superior Court. Heard in the Court of Appeals 16 November 2015.


      Lott Law, PLLC, by Kimberly M. Lott and Andre Truth McDavid, for plaintiff.

      Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Lynn Wilson
      McNally and Alicia Jurney, for defendant.


      DAVIS, Judge.


      This appeal arises from a jury award of compensatory and punitive damages

in favor of Christopher Hayes (“Plaintiff”) on his alienation of affections claim against

Scott Waltz (“Defendant”). On appeal, Defendant’s primary argument is that the trial

court erred by denying his motion for judgment notwithstanding the verdict (“JNOV”)

with regard to the compensatory damages award. Plaintiff cross-appeals from the

trial court’s order granting Defendant’s JNOV motion as to the jury’s award of
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                                  Opinion of the Court



punitive damages. After careful review, we affirm in part and reverse and remand

in part.

                               Factual Background

      Plaintiff and Rebecca Lynn Hayes (“Ms. Hayes”) were married on 30 December

2000. They had two children together during their marriage, and Plaintiff legally

adopted Ms. Hayes’ son from a prior relationship. In 2006, Plaintiff and Ms. Hayes

moved their family from Florida to North Carolina.

      In March 2009, Ms. Hayes began working for Bayer as a legal administrative

assistant. In early 2011, Ms. Hayes was offered a position in Bayer’s environmental

sciences group. She accepted the position and began working with that group in

February of 2011.

      Approximately one week later, she attended a work-sponsored conference in

Cancun, Mexico. At the conference, Ms. Hayes met Defendant, who also worked for

Bayer and lived in Indiana. Defendant introduced himself and other members of his

group to Ms. Hayes on the first evening of the conference, and they all went to a dance

club together later that night. Defendant danced with Ms. Hayes at the club and

later walked her to her room. They talked for a while, and Defendant left.

      On the second night of the conference, Defendant and Ms. Hayes again

attended the dance club, and he walked her back to her room afterwards. They

proceeded to engage in sexual intercourse. On the third night of the conference,



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Defendant and Ms. Hayes had sexual intercourse a second time. When the conference

ended, Defendant returned to Indiana, and Ms. Hayes returned to North Carolina.

      Between March 2011 and June 2011, Defendant and Ms. Hayes communicated

frequently via email, telephone, and text messaging.      They exchanged 423 text

messages and phone calls during the month of March, 977 in April, 1,093 in May, and

894 in June. They spent a total of 26.07 hours on the telephone together during this

time period.

      On 27 June 2011, Plaintiff examined his family’s phone bill and noticed that

there were a large number of communications between his wife’s cell phone number

and a telephone number with a 412 area code that he did not recognize. Plaintiff

dialed the number — which he later discovered belonged to Defendant — but

Defendant did not answer. Instead, Defendant sent Ms. Hayes a text message to

inform her that her husband had tried to contact him. Ms. Hayes then sent Plaintiff

a text message stating, “You can stop calling that number. He’s not going to answer.”

Plaintiff responded by asking her if “we need to talk?” Ms. Hayes asked him to read

a letter she had written to him and placed in a drawer in her closet. The letter

discussed several of her prior extramarital affairs. It further stated that she had

“met someone” and did not want to hide that from Plaintiff.

      Plaintiff drove to Ms. Hayes’ workplace, followed her car when she left work,

and pulled up next to her when she turned into a parking lot. Plaintiff and Ms. Hayes



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then talked for a few minutes about the letter at which point Plaintiff used her cell

phone to call the last number that had been dialed from the phone, which was

Defendant’s number. Defendant answered his phone, and in response to questioning

by Plaintiff, Defendant admitted that he and Ms. Hayes had engaged in sexual

intercourse in Cancun.    Plaintiff asked if Defendant knew that Ms. Hayes was

married, and Defendant admitted that he was aware of that fact. Plaintiff then told

Defendant to “[l]eave her alone. We’re going to try and work this out.”

      Plaintiff suggested to Ms. Hayes that they both “cool off” for a while and then

try marital counseling.    Plaintiff testified that although their relationship felt

“strain[ed]” after he learned of Ms. Hayes’ affair in Cancun, they still spent time

together, went jogging together, and “enjoyed being around each other” over the next

several days.

      During that time period, Ms. Hayes spent a few nights at the residences of

friends but also spent some nights in the marital home. Plaintiff and Ms. Hayes had

been planning to pick up their children from Plaintiff’s parents’ home in Florida over

the July 4 weekend where the children had been visiting. However, because Ms.

Hayes decided she did not want to travel to Florida with Plaintiff under the

circumstances, Plaintiff went to Florida without her.




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       While Plaintiff was in Florida, Defendant drove from Indiana to North

Carolina to pick up his children from a prior marriage.1 He intended to take them to

his home in Indiana for a visit over the holiday weekend. After arriving in North

Carolina, Defendant also picked up Ms. Hayes and took her with him and his children

to Indiana. Defendant and Ms. Hayes spent the next six days and nights together.

While traveling through North Carolina en route to Indiana, Defendant and Ms.

Hayes stayed in a hotel and slept in the same bed together.                    They kissed and

embraced while in North Carolina but did not have sexual intercourse again until

they arrived in Indiana.

       Upon her return to North Carolina, Ms. Hayes informed Plaintiff and their

children that she and Plaintiff were getting a divorce. Plaintiff and Ms. Hayes

entered into a separation agreement on 2 August 2011.

       On 2 August 2013, Plaintiff filed a complaint against Defendant in Wake

County Superior Court asserting causes of action for alienation of affections and

criminal conversation. In his complaint, Plaintiff sought both compensatory and

punitive damages. Defendant filed an answer on 2 October 2013 and an amended

answer on 4 August 2014.




       1  The record is unclear as to whether Defendant’s children resided in North Carolina at that
time or simply happened to be visiting North Carolina.

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      A jury trial was held beginning on 5 August 2014 before the Honorable Donald

W. Stephens. The trial court bifurcated the compensatory damages and punitive

damages phases of the trial.

      The jury returned a verdict (1) finding Defendant liable for alienation of

affections; (2) finding in favor of Defendant on the criminal conversation claim; and

(3) determining that Plaintiff was entitled to recover $82,500.00 in compensatory

damages.    Following the punitive damages phase, the jury returned a verdict

awarding Plaintiff $47,000.00 in punitive damages.

      On 19 September 2014, Defendant filed a motion for JNOV pursuant to Rule

50(b) of the North Carolina Rules of Civil Procedure. Defendant also requested that

he be granted relief from the judgment under Rule 60(b) or that he receive a new trial

based on Rule 59 as a result of prejudicial statements made by Plaintiff’s counsel

during closing arguments. In the alternative, Defendant contended that he was

entitled to a remittitur, arguing that Plaintiff “presented no evidence of economic

damages proximately caused by any wrongful act of Defendant” and that the trial

court should therefore “reduce the damages awarded to Plaintiff to an amount

substantiated by the evidence presented at trial.”

      On 22 October 2014, the trial court entered an order partially granting

Defendant’s JNOV motion by vacating the jury’s award of punitive damages.

However, the trial court denied Defendant’s JNOV motion with regard to the



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compensatory damages award. The trial court also denied Defendant’s remaining

motions. Defendant filed a timely appeal, and Plaintiff, in turn, cross-appealed.

                                      Analysis

I. Defendant’s Appeal

      A. Denial of JNOV Motion as to Award of Compensatory Damages

      Defendant’s primary argument on appeal is that the trial court erred by

denying his motion for JNOV with regard to Plaintiff’s alienation of affections claim.

                    The standard of review of the denial of a motion for
             a directed verdict and of the denial of a motion for JNOV
             are identical.     We must determine whether, upon
             examination of all the evidence in the light most favorable
             to the non-moving party, and that party being given the
             benefit of every reasonable inference drawn therefrom and
             resolving all conflicts of any evidence in favor of the non-
             movant, the evidence is sufficient to be submitted to the
             jury.

Springs v. City of Charlotte, 209 N.C. App. 271, 274-75, 704 S.E.2d 319, 322-23 (2011)

(citation and quotation marks omitted).

      A motion for JNOV “should be denied if there is more than a scintilla of

evidence supporting each element of the non-movant’s claim.” Shelton v. Steelcase,

Inc., 197 N.C. App. 404, 410, 677 S.E.2d 485, 491 (citation and quotation marks

omitted), disc. review denied, 363 N.C. 583, 682 S.E.2d 389 (2009). “A scintilla of

evidence is defined as very slight evidence.” Pope v. Bridge Broom, Inc., ___ N.C. App.

___, ___, 770 S.E.2d 702, 715 (citation and quotation marks omitted), disc. review



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denied, ___ N.C. ___, 775 S.E.2d 861 (2015).

      In order to successfully bring a claim for alienation of affections, the plaintiff

must present evidence demonstrating “(1) a marriage with genuine love and affection;

(2) the alienation and destruction of the marriage’s love and affection; and (3) a

showing that defendant’s wrongful and malicious acts brought about the alienation

of such love and affection.” Heller v. Somdahl, 206 N.C. App. 313, 315, 696 S.E.2d

857, 860 (2010). On appeal, Defendant contends that his motion for JNOV should

have been granted because (1) the evidence at trial failed to show that he engaged in

wrongful and malicious conduct that caused the loss of affections between Plaintiff

and Ms. Hayes; and (2) all of the sexual conduct between Ms. Hayes and him occurred

outside North Carolina.

                    A claim for alienation of affections is a transitory
             tort because it is based on transactions that can take place
             anywhere and that harm the marital relationship. The
             substantive law applicable to a transitory tort is the law of
             the state where the tortious injury occurred, and not the
             substantive law of the forum state. The issue of where the
             tortious injury occurs . . . is based on where the alleged
             alienating conduct occurred, not the locus of the plaintiff’s
             residence or marriage. Accordingly, where the defendant’s
             involvement with the plaintiff’s spouse spans multiple
             states, for North Carolina substantive law to apply, a
             plaintiff must show that the tortious injury occurred in
             North Carolina.

Jones v. Skelley, 195 N.C. App. 500, 506, 673 S.E.2d 385, 389-90 (2009) (internal

citations, quotation marks, brackets, and ellipses omitted).



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       Establishing that the defendant’s alienating conduct occurred within a state

that still recognizes alienation of affections as a valid cause of action is essential to a

successful claim since most jurisdictions have abolished the tort. Darnell v. Rupplin,

91 N.C. App. 349, 353-54, 371 S.E.2d 743, 746-47 (1988). However, as our Court

explained in Jones, “even if it is difficult to discern where the tortious injury occurred,

the issue is generally one for the jury[.]” Jones, 195 N.C. App. at 507, 673 S.E.2d at

390.

       In the present case, Defendant asserts that because the evidence at trial

demonstrated that the only instances of sexual intercourse between him and Ms.

Hayes occurred neither in North Carolina nor in any other jurisdiction that

recognizes the cause of action, there was no remaining evidence “that Defendant

engaged in actionable unlawful conduct.” We disagree.

       In the context of an alienation of affections claim, a wrongful and malicious act

has been “loosely defined to include any intentional conduct that would probably

affect the marital relationship.” Id. at 508, 673 S.E.2d at 391 (citation and quotation

marks omitted). Our Court has further described this element as encompassing any

“unjustifiable conduct causing the injury complained of.” Heist v. Heist, 46 N.C. App.

521, 523, 265 S.E.2d 434, 436 (1980).

       Here, Plaintiff offered into evidence cell phone records showing the voluminous

number of text messages and telephone calls between Defendant and Ms. Hayes from



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March 2011 (which was shortly after the conference in Cancun) to June 2011 (when

Plaintiff learned that the two of them had engaged in sexual intercourse during the

Cancun trip). Ms. Hayes testified that these communications — many of which

occurred on weekends or very late at night — were all work related. Defendant stated

at trial that they had “talked about a lot of different things” during their phone calls

and text messages. He testified that “we talked about work. We talked about

personal lives. We talked about her trip to London. We talked about raising our

kids.” Because the contents of these communications were not introduced at trial —

only the fact that the communications had occurred (as shown on the call and text

message logs contained within Plaintiff’s cell phone bills) — Defendant asserts that

Plaintiff has failed to demonstrate that “any of the conversations between Defendant

and Ms. Hayes were salacious or otherwise inappropriate” so as to satisfy the element

of wrongful and malicious conduct.

      As explained above, however, a motion for JNOV must be denied so long as

there is more than a scintilla of evidence as to each essential element of the claim at

issue. Here, Defendant and Ms. Hayes shared several thousand text messages and

approximately 26 hours of telephone calls over the four-month period immediately

following their sexual encounter in Cancun.          Defendant’s admission during his

testimony that he decided not to answer the call from a North Carolina telephone

number on 27 June 2011 because he “had an inclination that it was [Plaintiff]” and



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the fact that he then texted Ms. Hayes that Plaintiff was attempting to contact him

allowed the jury to rationally infer that the communications between Ms. Hayes and

himself were not, in fact, solely business related.

      When Plaintiff discovered that Defendant and Ms. Hayes had engaged in

sexual intercourse, he told Defendant to leave her alone so that he and Ms. Hayes

could work on their marriage. Only a few days after this request (which Plaintiff

made on 27 June 2011), Defendant came to North Carolina, picked up Ms. Hayes,

and took her on a trip to Indiana that lasted for six days. Evidence was presented

that during this trip Defendant and Ms. Hayes kissed and embraced each other and

slept in the same bed in a North Carolina hotel.

      The fact that this trip occurred less than a week after Plaintiff had directed

Defendant to leave Ms. Hayes alone and that Plaintiff and Ms. Hayes permanently

separated a few weeks later gave rise to a reasonable inference that there was

wrongful and malicious conduct by Defendant that caused the loss of affection

between Plaintiff and Ms. Hayes. See Jones, 195 N.C. App. at 507, 673 S.E.2d at 390

(“A claim for alienation of affections is comprised of wrongful acts which deprive a

married person of the affections of his or her spouse — love, society, companionship

and comfort of the other spouse.” (citation and quotation marks omitted)).

      Defendant contends that his acts occurring after 27 June 2011 cannot be

legally considered in determining whether Plaintiff offered sufficient evidence of an



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alienation of affections claim because that was the date on which Plaintiff and Ms.

Hayes separated. See N.C. Gen. Stat. § 52-13(a) (2015) (“No act of the defendant shall

give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff

and the plaintiff’s spouse physically separate with the intent of either the plaintiff or

the plaintiff’s spouse that the physical separation remain permanent.”).

       As an initial matter, this argument ignores the fact that virtually all of the text

messages and phone calls between Defendant and Ms. Hayes occurred prior to 27

June 2011. In addition, however, the evidence presented at trial as to the date of

separation was conflicting.       Their separation agreement states that the date of

separation was 18 July 2011. Ms. Hayes testified that 18 July 2011 was the day she

moved into her new apartment and that 11 July 2011 was the last night she spent at

the marital residence. While there was other evidence suggesting that Ms. Hayes left

the marital home with the intent to permanently separate from Plaintiff on 28 June

2011, conflicts in the evidence on a motion for JNOV are resolved in favor of the

nonmoving party. See State Props., LLC v. Ray, 155 N.C. App. 65, 72, 574 S.E.2d 180,

186 (2002) (noting existence of some evidence supporting defendants’ argument on

appeal but disregarding that evidence in reviewing trial court’s ruling on defendants’

JNOV motion because “[a]ll conflicts in the evidence are to be resolved in the

nonmovant’s favor” (citation omitted)), disc. review denied, 356 N.C. 694, 577 S.E.2d

889 (2003). Therefore, because competent evidence was offered at trial supporting a



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finding that the parties’ date of separation was after the trip Defendant and Ms.

Hayes took to Indiana, the jury was able to properly consider evidence of acts that

occurred after 27 June 2011.

      Defendant also argues that his conduct did not proximately cause the loss of

affection between Plaintiff and Ms. Hayes because Ms. Hayes’ prior extramarital

affairs — rather than Defendant’s conduct — destroyed their marriage. Defendant

contends that these prior affairs showed Ms. Hayes’ discontent and lack of

satisfaction with her marriage, and that as a result, Plaintiff cannot show that

“Defendant was even the most probable cause of their marital separation.”

      However, it is well established that while the defendant’s conduct must

proximately cause the alienation of affections, this does not mean that the

“defendant’s acts [must] be the sole cause of alienation, as long as they were the

controlling or effective cause.” Nunn v. Allen, 154 N.C. App. 523, 533, 574 S.E.2d 35,

42 (2002) (citation an quotation marks omitted), disc. review denied, 356 N.C 675, 577

S.E.2d 630 (2003). “[T]he plaintiff need not prove that [his] spouse had no affection

for anyone else or that the marriage was previously one of untroubled bliss.”

McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (2006) (citation,

quotation marks, and brackets omitted). Rather, a plaintiff “only has to prove that

his spouse had some genuine love and affection for him and that love and affection

was lost as a result of defendant’s wrongdoing.” Brown v. Hurley, 124 N.C. App. 377,



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380-81, 477 S.E.2d 234, 237 (1996).

      Plaintiff testified that there had been genuine love and affection between him

and Ms. Hayes, explaining that

             [w]e had really fun times together. We did a lot of stuff
             together. And that never changed. We always had fun
             together. We always told each other we loved each other,
             continued to give each other a kiss before we went
             somewhere. You know, she would do certain sweet little
             things for me, and I’d do sweet little things for her.

      Plaintiff also testified that at the time of their marriage, Ms. Hayes “was the

love of my life. We had a great relationship.”

      Plaintiff acknowledged that they had experienced other problems in their

marriage and referred in his testimony to the two prior occasions of infidelity by Ms.

Hayes. But he also testified that they had participated in marriage counseling and

“moved on from there.” Plaintiff and Ms. Hayes both testified that throughout their

marriage they would hold hands and tell each other they loved one another and that

they maintained an active sex life.

      At trial, Plaintiff described the discovery of Ms. Hayes’ affair with Defendant

as being “different” from the prior affairs. Ms. Hayes told Plaintiff that she had

“found someone” (referring to Defendant) and that she did not want to hide him from

Plaintiff anymore.   After returning from the Indiana trip, Ms. Hayes informed




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Plaintiff that their marriage was over.2

       The fact that a jury could conceivably have drawn different inferences from

this evidence did not warrant the granting of Defendant’s JNOV motion with regard

to the jury’s award of compensatory damages. See Jones v. Robbins, 190 N.C. App.

405, 408, 660 S.E.2d 118, 120 (“In reviewing motions . . . for judgment

notwithstanding the verdict, this Court examines the evidence in the light most

favorable to the non-moving party, giving that party the benefit of every reasonable

favorable inference, and determines whether there was sufficient evidence to submit

the issue to the jury. . . . The reviewing court does not weigh the evidence or assess

credibility, but takes the [nonmovant’s] evidence as true, resolving any doubt in their

favor.” (internal citations and quotation marks omitted)), disc. review denied, 362

N.C. 472, 666 S.E.2d 120 (2008). Thus, applying — as we must — the well-settled

standard for reviewing a trial court’s ruling on a motion for JNOV, we conclude that

Plaintiff presented more than a scintilla of evidence that there was genuine love and

affection between himself and Ms. Hayes and that Defendant proximately caused the

alienation of that love and affection. Therefore, the trial court did not err in denying

Defendant’s motion for JNOV.

       B. Defendant’s Motions under Rules 59 and 60



       2 Defendant testified that at the time of trial he and Ms. Hayes were in an exclusive romantic
relationship.


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      Defendant next contends that the trial court erred by denying his alternative

motions based on Rules 59 and 60. He first asserts that based on “the inappropriate

statements of Plaintiff’s counsel during his final closing argument” he was either

entitled to relief from judgment pursuant to Rule 60 or entitled to a new trial under

Rule 59. He then argues that the jury’s award of damages — which he claims was

excessive and appears “to have been given under the influence of passion or prejudice”

— requires a new trial pursuant to Rule 59(a)(6). We address each of Defendant’s

arguments in turn.

             1. Plaintiff’s Closing Argument

      This Court reviews a trial court’s rulings both on motions seeking a new trial

under Rule 59 and motions for relief pursuant to Rule 60(b) for abuse of discretion.

See Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (“It has been long

settled in our jurisdiction that an appellate court’s review of a trial judge’s

discretionary ruling either granting or denying a motion to set aside a verdict and

order a new trial is strictly limited to the determination of whether the record

affirmatively demonstrates a manifest abuse of discretion by the judge. . . . As with

Rule 59 motions, the standard of review of a trial court’s denial of a Rule 60(b) motion

is abuse of discretion.” (citation and quotation marks omitted)).

      In the present case, Defendant argues that various statements made by

Plaintiff’s counsel during closing arguments (1) “constitute[d] surprise within the



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meaning of Rule 60(b)(1)” because he did not have an opportunity to address the

misstatements before the jury deliberated; (2) amounted to misconduct by an adverse

party under Rule 60(b)(3); or (3) qualify as a ground justifying relief pursuant to Rule

60(b)(6). His request, in the alternative, for a new trial pursuant to Rule 59 is based

on these same grounds. Consequently, we address simultaneously the trial court’s

rulings denying Defendant’s motions under both Rule 59 and Rule 60.

      In making a closing argument, “an attorney has latitude to argue all the

evidence to the jury, with such inferences as may be drawn therefrom; but he may

not travel outside the record and inject into his argument facts of his own knowledge

or other facts not included in the evidence.” Smith v. Hamrick, 159 N.C. App. 696,

698, 583 S.E.2d 676, 678 (citation and quotation marks omitted), disc. review denied,

357 N.C. 507, 587 S.E.2d 674 (2003). While attorneys are prohibited from expressing

personal opinions during closing argument, they may argue to the jury why a witness

should be believed or disbelieved. State v. Augustine, 359 N.C. 709, 725, 616 S.E.2d

515, 528 (2005), cert. denied, 548 U.S. 925, 165 L.Ed.2d 988 (2006). Challenged

“statements contained in closing arguments to the jury are not to be placed in

isolation or taken out of context on appeal.         Instead, on appeal we must give

consideration to the context in which the remarks were made and the overall factual

circumstances to which they referred.” State v. Jaynes, 353 N.C. 534, 559, 549 S.E.2d

179, 198 (2001) (citation omitted), cert. denied, 535 U.S. 933, 152 L.Ed.2d 220 (2002).



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When a party argues on appeal that remarks made during closing argument

misrepresented the evidence offered at trial or the applicable law, he must also

demonstrate that he was prejudiced by the alleged misrepresentations. See State v.

Trull, 349 N.C. 428, 451-52, 509 S.E.2d 178, 193-94 (1998), cert. denied, 528 U.S. 835,

145 L.Ed.2d 80 (1999).

      The portions of Plaintiff’s closing argument challenged by Defendant on appeal

fall into two general categories:      (1) contentions regarding the credibility of

Defendant’s and Ms. Hayes’ trial testimony; and (2) alleged factual inaccuracies or

misrepresentations of the evidence. With regard to the statements concerning the

credibility of Defendant and Ms. Hayes, Defendant asserts that Plaintiff’s counsel’s

discussion of the sequestration of Ms. Hayes during trial, his questioning of her

ability to testify truthfully, and his referral to Defendant as a “con man” were so

egregious as to require relief from judgment or a new trial. Defendant also claims

that Plaintiff’s counsel’s inaccurate remarks concerning the extent of Ms. Hayes’ legal

knowledge, Defendant’s status as her supervisor at work, Defendant’s perception of

their affair, and several other topics covered during the trial were unfairly prejudicial

and likewise entitled him to relief pursuant to Rules 59 or 60.

      An attorney is permitted to argue to the jury that certain witnesses should be

deemed credible. Augustine, 359 N.C. at 725, 616 S.E.2d at 528. “Similarly, a lawyer

can argue to the jury that they should not believe a witness.” Id. (citation and



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quotation marks omitted). However, “[i]t is improper for a lawyer to assert his

opinion that a witness is lying.” State v. Locklear, 294 N.C. 210, 217, 241 S.E.2d 65,

70 (1978).

      Here, defense counsel stated during Defendant’s closing argument that

because Ms. Hayes was sequestered and not present in the courtroom during

Defendant’s testimony “[s]he didn’t know what he said. There was no opportunity to

collude. She was outside of this courtroom. Think about that as you consider the

credibility of these witnesses.”

      In Plaintiff’s closing argument, his counsel stated that “opposing counsel talks

about the fact that Ms. Hayes was sequestered. Sequestration is a pretty important

tool for lawyers. When lawyers are concerned that someone might have an issue or

a loose relationship with the truth, you can set them into the hallway.” In addition,

Plaintiff’s counsel later stated that “Ms. Hayes’s ability to speak the truth is

questionable at best.”

      While we take note of the fact that it was Defendant’s counsel who initially

raised the issue of Ms. Hayes’ sequestration as a reason why the jury should believe

her testimony and that Plaintiff’s counsel was entitled to respond with arguments as

to why the jury should not find her credible, we believe that the remarks by Plaintiff’s

counsel concerning Ms. Hayes’ sequestration and her truthfulness constituted

impermissible opinions as to her credibility and thus constituted improper argument.



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However, based on our review of Plaintiff’s closing argument in its entirety, we do not

believe that these improper statements were sufficiently egregious so as to entitle

Defendant to relief under Rule 59 or 60. Consequently, the trial court did not abuse

its discretion in denying Defendant’s motions based on these portions of Plaintiff’s

closing argument.

      Indeed, we note that Defendant’s counsel did not object to these statements

during Plaintiff’s closing argument. See generally State v. Taylor, 362 N.C. 514, 545,

669 S.E.2d 239, 265 (2008) (explaining that appellate courts will not conclude that

trial court abused its discretion in failing to intervene regarding “an argument that

defense counsel apparently did not believe was prejudicial when originally spoken”

unless statement constituted an “extreme impropriety” (citation and quotation marks

omitted)), cert. denied, 558 U.S. 851, 175 L.Ed.2d 84 (2009).

      Likewise, while this Court does not condone “name-calling” during closing

argument, we cannot agree that the characterization of Defendant by Plaintiff’s

counsel as a “con man” was sufficiently egregious when read contextually so as to

warrant a new trial or relief from judgment. See State v. Frink, 158 N.C. App. 581,

591, 582 S.E.2d 617, 623 (2003) (noting that “name-calling” during closing remarks

is improper but does not constitute prejudicial error unless appealing party can

demonstrate that a different result probably would have been reached had the




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remark not been made), appeal dismissed and disc. review denied, 358 N.C. 547, 599

S.E.2d 565 (2004).

      With regard to the alleged misrepresentations of testimony by Plaintiff’s

counsel, we believe that the bulk of the statements cited by Defendant on appeal were

permissible inferences from the evidence — arguments by Plaintiff’s counsel that

certain evidence should be construed in a manner that would support the elements of

Plaintiff’s claim. Such arguments are proper during a closing argument. See State

v. Bates, 343 N.C. 564, 590, 473 S.E.2d 269, 283 (1996) (“Counsel is permitted to argue

the facts which have been presented, as well as reasonable inferences which can be

drawn therefrom.”), cert. denied, 519 U.S. 1131, 136 L.Ed.2d 873 (1997).

      After carefully reviewing the remaining challenged statements from Plaintiff’s

closing argument, we have found no remark that required the trial court to grant

Defendant relief from judgment under Rule 60(b) or a new trial pursuant to Rule 59.

Nor do we believe that the cumulative effect of any inaccuracies in the remarks of

Plaintiff’s counsel entitled Defendant to such relief.

      We note that immediately following the arguments, the trial court properly

instructed the jury that the statements of Plaintiff’s and Defendant’s counsel were

merely comments on the evidence for the jurors to consider and that “[they] and [they]

alone determine what the evidence shows or fails to show.” We therefore overrule

Defendant’s argument that the trial court abused its discretion in denying



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Defendant’s motions under Rules 59 and 60 based on the statements made during

Plaintiff’s closing argument.

             2. Amount of Compensatory Damages

      Finally, Defendant makes a cursory argument in his brief that “[t]he damages

awarded by the jury are disproportionate to Defendant’s conduct and any injury

suffered by Plaintiff” such that “granting relief under N.C.R. Civ. P. 59(a)(6) is

warranted.” Rule 59(a)(6) permits the trial court to grant a new trial “on all or part

of the issues” when “[e]xcessive or inadequate damages appearing to have been given

under the influence of passion or prejudice” were awarded. N.C.R. Civ. P. 59(a)(6).

      Here, Defendant argues that Plaintiff failed to offer any evidence supporting

an award of compensatory damages.         In Nunn, the defendant made a similar

argument, contending that the trial court had erred in denying his motion for a new

trial based on the jury’s allegedly unsupported award of compensatory damages.

Nunn, 154 N.C. App. at 534, 574 S.E.2d at 42-43. We rejected the defendant’s

argument, stating that this Court will not reverse a trial court’s discretionary ruling

on a motion for a new trial absent a showing of an abuse of discretion resulting in a

substantial miscarriage of justice. Id. at 535, 574 S.E.2d at 43. We explained that

with regard to an alienation of affections claim

             the measure of damages is the present value in money of
             the support, consortium, and other legally protected
             marital interests lost by plaintiff through the defendant’s
             wrong. In addition thereto, plaintiff may also recover for


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             the wrong and injury done to plaintiff’s health, feelings, or
             reputation.

Id. at 534, 574 S.E.2d at 43 (citation and brackets omitted).

      In the present case, Plaintiff offered evidence that due to the alienation of

affections between himself and Ms. Hayes, he suffered both emotionally and

financially. Plaintiff testified that he lost the support of Ms. Hayes’ income and that

the marital home went into foreclosure because he could not afford the mortgage

payments on his salary alone.       He further testified that he was “devastated”

emotionally by the loss of Ms. Hayes’ affections and the dissolution of their marriage.

Plaintiff described the emotional impact of spending less time with his children

because they no longer lived with him full time. He also testified that friends viewed

and treated him differently as did others in the general community due to the

deterioration of his relationship with Ms. Hayes and that the loss of Ms. Hayes’

affections impacted his relationships with others.

      Thus, Plaintiff offered evidence that supported an award of compensatory

damages, and the trial court did not manifestly abuse its discretion by denying

Defendant a new trial. Moreover, Defendant has failed to demonstrate that the

amount of compensatory damages awarded was excessive. Therefore, the trial court

did not err in denying his motion under Rule 59(a)(6).

II. Plaintiff’s Cross-Appeal




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      In his cross-appeal, Plaintiff argues that the trial court erred in partially

granting Defendant’s JNOV motion and setting aside the jury’s award of punitive

damages. As explained below, we conclude that this portion of the trial court’s order

must be reversed and that a remand to the trial court is necessary.

      In Scarborough v. Dillard’s, Inc., 363 N.C. 715, 693 S.E.2d 640 (2009), cert.

denied, 563 U.S. 988, 179 L.Ed.2d 1211 (2011), our Supreme Court discussed the

duties of a trial court when reviewing a jury’s award of punitive damages on a

defendant’s JNOV motion. As the Court explained, “[o]ur General Assembly has set

parameters for the recovery of punitive damages through the enactment of Chapter

1D of the North Carolina General Statutes.” Id. at 720, 693 S.E.2d at 643. Chapter

1D allows punitive damages only if the claimant proves (1) that the defendant is liable

for compensatory damages; and (2) the existence — by clear and convincing evidence

— of an aggravating factor (fraud, malice, or willful or wanton conduct) related to the

injury for which compensatory damages were awarded. Id. at 720-21, 693 S.E.2d at

643; see also N.C. Gen. Stat. § 1D-15 (2015).

      Among the statutes contained in Chapter 1D is N.C. Gen. Stat. § 1D-50, which

provides for judicial review of a punitive damages award and states as follows:

             When reviewing the evidence regarding a finding by the
             trier of fact concerning liability for punitive damages in
             accordance with G.S. 1D-15(a), or regarding the amount of
             punitive damages awarded, the trial court shall state in a
             written opinion its reasons for upholding or disturbing the
             finding or award. In doing so, the court shall address with


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             specificity the evidence, or lack thereof, as it bears on the
             liability for or the amount of punitive damages, in light of
             the requirements of this Chapter.

N.C. Gen. Stat. § 1D-50 (2015).

      As our Supreme Court held in Scarborough, the trial court has a statutory “role

in ascertaining whether the evidence presented was sufficient to support a jury’s

finding of [an aggravating] factor under the standard established by the

legislature[,]” which it is required to fulfill by entering a written opinion addressing

with specificity the evidence concerning punitive damages and the basis for its

decision to either uphold or set aside an award of punitive damages. Scarborough,

363 N.C. at 721, 693 S.E.2d at 644.

             [T]he language of the statute does not require findings of
             fact, but rather that the trial court “shall state in a written
             opinion its reasons for upholding or disturbing the finding
             or award. In doing so, the court shall address with
             specificity the evidence, or lack thereof, as it bears on the
             liability for or the amount of punitive damages.” N.C.G.S.
             § 1D-50. That the trial court utilizes findings to address
             with specificity the evidence bearing on liability for
             punitive damages is not improper; the “findings,” however,
             merely provide a convenient format with which all trial
             judges are familiar to set out the evidence forming the basis
             of the judge’s opinion. The trial judge does not determine
             the truth or falsity of the evidence or weigh the evidence,
             but simply recites the evidence, or lack thereof, forming the
             basis of the judge’s opinion. As such, these findings are not
             binding on the appellate court even if unchallenged by the
             appellant. These findings do, however, provide valuable
             assistance to the appellate court in determining whether
             as a matter of law the evidence, when considered in the
             light most favorable to the nonmoving party, is sufficient


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             to be considered by the jury as clear and convincing on the
             issue of punitive damages.

Id. at 722-23, 693 S.E.2d at 644-45.

      In Hudgins v. Wagoner, 204 N.C. App. 480, 694 S.E.2d 436 (2010), disc. review

denied, 365 N.C. 88, 706 S.E.2d 250 (2011), the defendants argued that the trial court

erred in denying their JNOV motion concerning an award of punitive damages

because insufficient evidence existed for the award of such damages.            Citing

Scarborough, we reversed the trial court’s denial of the defendants’ JNOV motion as

to the punitive damages award because the trial court had failed to enter a written

opinion stating its reasons for upholding the award. Id. at 495, 694 S.E.2d at 447-48.

We concluded that it was necessary to “remand the matter to the trial court for entry

of a written opinion with respect to the award of punitive damages as required by

North Carolina General Statutes, section 1D-50 and explained by Scarborough[.]” Id.

at 500, 694 S.E.2d at 450. In light of our holding that remand to the trial court was

necessary, we did not address the parties’ substantive arguments concerning the

sufficiency of the evidence at trial to support a punitive damages award.

      Likewise, in Springs, the trial court failed to comply with N.C. Gen. Stat. § 1D-

50 in its order denying the defendant’s motion for JNOV and upholding the jury’s

punitive damages award. On appeal, this Court noted that it was bound by both

Scarborough and Hudgins and held that

             [s]ince the trial court’s order addressing defendants’


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             motion for JNOV simply stated that the motion was denied
             without complying with N.C. Gen. Stat. § 1D-50, we must
             remand to allow the trial court to enter a written opinion
             setting out its reasons for upholding the punitive damages
             award. We cannot address the merits of [defendant’s]
             arguments regarding the sufficiency of the evidence in the
             absence of the required written opinion.

Id. at 281, 704 S.E.2d at 326-27.

      Here, the trial court “disturb[ed]” the jury’s award of punitive damages by

vacating the award, but it did not “address with specificity” the evidence it found to

be lacking on that issue. N.C. Gen. Stat. § 1D-50. Instead, the trial court merely

stated in its order that the award of punitive damages must be set aside because the

evidence was “insufficient.” Consequently, as in Springs and Hudgins, we must

remand to the trial court so that it may issue a written opinion setting forth its

specific reasons for granting Defendant’s JNOV motion regarding the punitive

damages award and citing the evidence, or lack thereof, upon which it based its

decision.

                                      Conclusion

      For the reasons stated above, we (1) affirm the portion of the trial court’s 22

October 2014 order denying Defendant’s motion for JNOV regarding the jury’s award

of compensatory damages on Plaintiff’s alienation of affections claim; (2) reverse the

portion of the trial court’s 22 October 2014 order granting Defendant’s JNOV motion




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                                 Opinion of the Court



and setting aside the award of punitive damages; and (3) remand for further

proceedings consistent with this opinion.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Chief Judge McGEE and Judge DILLON concur.




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