               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-389

                               Filed: 6 February 2018

Harnett County, No. 14-CVS-1117

ANTHONY V. MARTIN, and wife, SHERRY H. MARTIN, Plaintiffs,

              v.

MACK DEVAUGHN POPE, Defendant.


       Appeals by plaintiffs and defendant from judgment entered 27 July 2016 by

Judge John W. Smith in Harnett County Superior Court. Heard in the Court of

Appeals 1 November 2017.


       The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr. and L. Lamar
       Armstrong, III, for plaintiffs-appellees.

       Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn, for defendant-
       appellant.


       DIETZ, Judge.


       Defendant Mack Pope appeals from a judgment finding him liable for

concealing environmental contamination on property he sold to Plaintiffs Anthony

and Sherry Martin.

       As explained below, the bulk of Pope’s arguments, which concern the statute

of limitations and sufficiency of the evidence, are not preserved for appellate review

because Pope failed to assert those issues in a directed verdict motion at the close of

all the evidence at trial.
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       Pope’s challenge to the trial court’s answer to a jury question during

deliberations likewise is barred because Pope initially consented to that answer and

only objected after the jury resumed deliberations. His objection is therefore barred

by the invited error doctrine.

       Pope’s challenges to the denial of leave to assert third-party claims and to

disqualify the Martins’ counsel are reviewed for abuse of discretion. As explained

below, we hold that the trial court’s rulings on those issues were the product of

reasoned decisions and thus within the trial court’s sound discretion.

       The Martins also cross-appealed, challenging the denial of their motion for

attorneys’ fees. But despite filing a cross-appeal, the Martins did not file an

appellants’ brief, instead including their argument in their appellees’ brief. Because

the lack of an appellants’ brief prejudiced Pope, we deem this issue abandoned on

appeal. Accordingly, we affirm the trial court’s judgment.

                           Facts and Procedural History

       The jury in this proceeding returned a verdict in favor of Plaintiffs Anthony

and Sherry Martin and we therefore recite the relevant facts in the light most

favorable to the Martins. We acknowledge that Defendant Mack Pope disputed many

of these facts at trial.

       In July 2004, Pope purchased property in Dunn from Royster-Clark, Inc. At

the time, Pope received an environmental report of the property, which stated that



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the property had “recognized environmental conditions.” Pope then leased the

property to Agrium U.S. Inc.

      In December 2007, Pope hired an environmental expert to conduct a limited

environmental assessment, which did not include any groundwater testing. The

report concluded that, “In review of the information as described herein regarding

activities on and adjacent to the subject property, no physical evidence was discovered

indicating ongoing negative environmental impacts to the subject property.”

      Between late 2007 and early 2008, Pope contracted to sell the property to a

third party. The sale eventually fell through when the purchaser requested an

extensive environmental report that included groundwater testing. That testing

identified contaminants well above the legal limit.

      In 2008, Anthony Martin expressed an interest in buying the property after

learning that it was for sale. At a later meeting, in response to Mr. Martin’s question

regarding the current state of the property, Pope indicated that the property was

“clean” and that it had no environmental risks or problems and provided Mr. Martin

with a copy of the more limited 2007 environmental report. Pope did not provide Mr.

Martin with the 2008 report that found environmental contamination. On 20 March

2009, Pope sold the property to the Martins for $500,000.

      In early 2013, the Martins agreed to sell the property to a new buyer for

$800,000. Before the closing date, a loan officer for the purchaser discovered that the



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property was listed on a hazardous waste site list maintained by our State’s

environmental protection agency. After being advised of the status of the property,

the Martins’ attorney obtained a copy of the 2008 report and informed the buyer’s

attorney. The sale then fell apart.

        The Martins later sued Pope for fraud and unfair and deceptive trade practices

based on Pope’s alleged concealment of the environmental contamination on the

property. The jury returned a verdict in the Martins’ favor on their claims and

awarded both compensatory and punitive damages. The trial court later denied

Pope’s motion for JNOV or, alternatively, for a new trial. The trial court also denied

the Martins’ request for attorneys’ fees. Pope timely appealed the judgment and the

denial of his corresponding post-trial motions, and the Martins timely appealed the

denial of their motion for attorneys’ fees.

                                        Analysis

        We begin by addressing Pope’s challenges to the verdict and various pre-trial

and trial rulings. We then turn to the Martins’ appeal from the denial of their request

for attorneys’ fees.

   I.      Denial of Pope’s motion for JNOV

        We first address Pope’s challenge to the denial of his motion for JNOV. Pope

argues that the Martins’ claims are barred by the statute of limitations and that there

was insufficient evidence that he made any false representations; insufficient



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evidence that the Martins reasonably relied on those representations; and

insufficient evidence that the Martins suffered any damages as a result. For all of

these reasons, Pope argues that the trial court should have granted his JNOV motion

and set aside the verdict as a matter of law.

      We cannot address these arguments because Pope waived them. A JNOV

motion is “essentially a renewal of a motion for directed verdict.” Barnard v. Rowland,

132 N.C. App. 416, 421, 512 S.E.2d 458, 463 (1999). As a result, a JNOV motion “must

be preceded by a motion for directed verdict at the close of all evidence.” Id. Indeed,

the official comment accompanying Rule 50 of our Rules of Civil Procedure, which

governs the procedure for both directed verdict motions and JNOV motions,

emphasizes that a directed verdict motion is an “absolute prerequisite” to a JNOV

motion. N.C. Gen. Stat. § 1A-1, Rule 50, cmt.

      Moreover, it is well-settled that to preserve the ability to assert a JNOV

motion, a litigant must move for a directed verdict at the close of all the evidence, not

merely at the close of the plaintiff’s case. Gibbs v. Duke, 32 N.C. App. 439, 442, 232

S.E.2d 484, 486 (1977). This is so because, once defendants have presented their own

case, the evidence in the trial record has changed. Although defendants during their

own case in chief typically are focused on presenting evidence that disproves the

plaintiff’s allegations, through cross-examination or introduction of exhibits




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defendants may introduce the very evidence that renders the directed verdict

improper.

      For this reason, our Court repeatedly has held that “[b]y offering their own

evidence, defendants waived their motion for a directed verdict made at the close of

plaintiffs’ evidence and, in order to preserve the question of the sufficiency of the

evidence for appellate review, they were required to renew this motion at the close of

all the evidence.” Cannon v. Day, 165 N.C. App. 302, 305–06, 598 S.E.2d 207, 210

(2004). This rule also is followed by the federal courts and our sister states. See, e.g.,

Miller v. Premier Corp., 608 F.2d 973, 979 n.3 (4th Cir. 1979); Mathieu v. Gopher

News Co., 273 F.3d 769, 776 (8th Cir. 2001); Kimbrough v. Commonwealth, 550

S.W.2d 525, 529 (Ky. 1977); State v. Hepburn, 753 S.E.2d 402, 410 (S.C. 2013).

      Here, Pope concedes that, although he moved for a directed verdict at the close

of the Martins’ case, he did not renew that motion at the close of all the evidence. We

are bound by our precedent holding that a JNOV motion must be preceded by a

motion for directed verdict at the close of all the evidence; thus, we must hold that

Pope’s JNOV arguments are waived on appeal.

      We acknowledge that this is a harsh outcome. But our precedent contains

many examples of litigants who sought to raise what they believed to be meritorious

JNOV arguments on appeal, only to have those arguments deemed waived for failure

to make an appropriate motion for directed verdict. See Gibbs, 32 N.C. App. at 442,



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232 S.E.2d at 486; Overman v. Products Co., 30 N.C. App. 516, 520, 227 S.E.2d 159,

162 (1976); Plasma Ctrs. Of Am., LLC v. Talecris Plasma Res., Inc., 222 N.C. App. 83,

88, 731 S.E.2d 837, 841 (2012).

         The public, and other jurisdictions that may be called on to recognize our

State’s court judgments, expect our courts to apply procedural rules uniformly to all

litigants who appear before them. Thus, although we recognize that justice is best

served when this Court reaches the merits of the underlying issues raised on appeal,

we are obligated to enforce this well-settled procedural rule and hold that Pope’s

JNOV arguments are waived.

   II.      Denial of Pope’s motion for new trial

         Pope next argues that the trial court erred by failing to grant his motion for a

new trial. Pope acknowledges that, ordinarily, we review the denial of a Rule 59

motion for abuse of discretion and “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.” Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599,

602 (1982). But Pope argues that his Rule 59 motion involves questions of “law and

legal inference” and that this Court should apply de novo review.

         The cases on which Pope relies for asserting a de novo standard of review

involve trial courts acting under a misapprehension of the law. See, e.g., Chiltoski v.



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Drum, 121 N.C. App. 161, 165, 464 S.E.2d 701, 704 (1995). The task of determining

whether Pope asserted arguments similar to those in Chiltoski is hamstrung by the

fact that the key page of Pope’s Rule 59 motion—the page containing most of the

grounds on which he sought a new trial—is not in the record on appeal. From

surrounding context, from the Martins’ response to that Rule 59 motion, and the

parties’ arguments on appeal, it appears that Pope focused his new trial arguments

on the sufficiency of the evidence presented at trial. “[A] motion for a new trial for

insufficiency of the evidence pursuant to Rule 59(a)(7) is addressed to the discretion

of the trial court.” Jones v. Durham Anesthesia Assocs., P.A., 185 N.C. App. 504, 508,

648 S.E.2d 531, 535 (2007). Accordingly, we reject Pope’s request to review the trial

court’s ruling de novo and instead review for abuse of discretion.

      Under this standard, the trial court’s decision to deny the motion for new trial

was within its sound discretion. Although we acknowledge that Pope disputes much

of the evidence on which the jury apparently relied, our Supreme Court has cautioned

us that we should not second guess trial courts when evaluating the sufficiency of the

evidence under Rule 59. “Due to their active participation in the trial, their first-hand

acquaintance with the evidence presented, their observances of the parties, the

witnesses, the jurors and the attorneys involved, and their knowledge of various other

attendant circumstances, presiding judges have the superior advantage in best

determining what justice requires in a certain case.” Worthington, 305 N.C. at 487,



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290 S.E.2d at 605 (1982). As a result, “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.” Id.

We recognize that this was not an easy case for the jury or the trial court. But our

review of the appellate record convinces us that the trial court made a reasoned

decision to deny the Rule 59 motion and that decision is not manifestly arbitrary or

a substantial miscarriage of justice. Accordingly, we hold that the trial court did not

abuse its discretion.

   III.   Challenge to the jury instructions

      Pope next argues that the trial court gave an erroneous and prejudicial answer

in response to a question from the jury during deliberations. As explained below, Pope

again failed to preserve this argument for appellate review.

      During the jury charge, the trial court instructed the jury that, on the issue of

the statute of limitations, the four-year limitations period began to run from the time

the Martins “actually discovered or should have discovered the facts constituting the

fraud.” After deliberating for a time, the jury asked the trial court whether the

Martins had to “satisfy both parts . . . as to the discovered or should have discovered

the environmental issue.” In other words, the jury appeared to be asking whether the

Martins had to show both that they did not know and should not have known of the

environmental contamination more than four years before filing suit.



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      The court discussed a proposed response to the question with the parties

outside the jury’s presence and ultimately gave the jury the following answer: “The

burden is upon the plaintiffs to prove that they discovered or should have discovered.

But not both.” Pope concedes in his appellate brief that he discussed this proposed

answer with the court before it was given and initially told the court that this answer

“was correct.” The trial transcript confirms this; after the jury retired with its answer,

the court asked the parties, “Does that concur with what we discussed at the bench

to the satisfaction of both sides?” Counsel for both parties replied, “Yes, sir.”

      Then, at some later point while the parties remained in the courtroom waiting

on a jury verdict, counsel for Pope asked to approach the bench again. After a brief

off-the-record discussion, the trial court stated on the record that Pope now objected

to the court’s answer. Pope’s counsel explained to the court that “[w]e believe that is

an incorrect statement” because the jury may mistakenly have interpreted the court’s

answer to mean that the Martins only had to prove that they did not know or should

not have known of the contamination more than four years before filing suit, rather

than having to prove both that they did not know and should not have known.

      After hearing from both parties, the trial court declined to call the jury back to

change the answer, explaining that “I think it would be confusing and prejudicial at

this stage.”




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         In light of Pope’s concession that he initially approved the trial court’s proposed

answer before it was given—a fact confirmed by the trial transcript—we hold that

Pope has waived this argument on appeal. Our Supreme Court has long recognized

that “under the doctrine of invited error, a party cannot complain of a charge given

at his request.” Sumner v. Sumner, 227 N.C. 610, 613, 44 S.E.2d 40, 41 (1947).

         A trial court’s answer to a jury question is treated as an instruction to the jury.

See State v. Farrington, 40 N.C. App. 341, 345, 253 S.E.2d 24, 27 (1979); State v.

Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992); State v. Smith, 188

N.C. App. 207, 211, 654 S.E.2d 730, 734 (2008). Thus, to preserve an objection on this

issue, Pope had to object and state the grounds for the objection before the court

answered the jury’s question and permitted them to retire for further deliberations.

See State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999). Because Pope did

not object to the proposed answer until after the court read the answer to the jury

and permitted the jury to continue deliberations, and because Pope concedes that he

initially approved that proposed answer, Pope has failed to preserve his objection for

appellate review. State v. Gainey, 355 N.C. 73, 106, 558 S.E.2d 463, 484 (2002).

   IV.      Motion to add third-party defendant

         Pope next argues that the trial court erred by denying his motion to add

Agrium U.S. Inc.—the firm that leased the property from Pope—as a third-party




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defendant. Pope argues that “[t]o the extent that there is contamination on the

property . . . it is possible that Agrium is partly responsible and partly liable.”

      Pope concedes that this Court reviews the trial court’s refusal to grant leave to

add Agrium for abuse of discretion. See Calloway v. Ford Motor Co., 281 N.C. 496,

501, 189 S.E.2d 484, 489 (1972). Under this standard of review, we can reverse the

trial court only if the court’s ruling is “so arbitrary that it could not have been the

result of a reasoned decision.” Williams v. CSX Transp., Inc., 176 N.C. App. 330, 336,

626 S.E.2d 716, 723 (2006). Thus, in most cases, “[i]f the trial court articulates a clear

reason for denying the motion . . . our review ends.” NationsBank of North Carolina,

N.A. v. Baines, 116 N.C. App. 263, 268, 447 S.E.2d 812, 815 (1994).

      The trial court’s ruling was not an abuse of discretion under this standard. The

court ruled that adding Agrium as a third-party defendant would be futile because,

even if Agrium caused the contamination, it would not impact the Martins’ claims,

which were based on allegations that Pope knew of the contamination and concealed

it from the Martins. The trial court also ruled that adding Agrium would be

prejudicial because Pope’s motion was made too close to the scheduled start of the

trial. We hold that the trial court’s analysis was the product of a reasoned decision,

not an arbitrary one, and thus the court’s refusal to permit Agrium to be added as a

third-party defendant was well within its sound discretion.




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   V.      Motion to disqualify counsel

        Finally, Pope argues that the trial court erred by denying his motion to

disqualify the Martins’ counsel. A motion to disqualify counsel “is discretionary with

the trial judge and is not generally reviewable on appeal.” In re Lee, 85 N.C. App. 302,

310, 354 S.E.2d 759, 764–65 (1987). This Court’s review is limited to whether the

court abused its discretion—which, again, means this Court can reverse only if we

conclude that the decision was “so arbitrary that it could not have been the result of

a reasoned decision.” Williams, 176 N.C. App. at 336, 626 S.E.2d at 723.

        The trial court’s decision was within its sound discretion under this standard

of review. The Martins’ counsel also represented Pope’s ex-wife in an unrelated family

law proceeding. During the punitive damages phase of the trial, the Martins

introduced into evidence a child support order and equitable distribution affidavit

from that other proceeding. Pope moved to disqualify the Martins’ counsel on the

ground that counsel may be aware of confidential spousal communications that

occurred during the marriage, and because the custody order and affidavit from the

family law proceeding “very likely” came from Pope’s ex-wife.

        The trial court denied the motion to disqualify on the ground that the custody

order and affidavit were public records and there was no evidence that the Martins’

counsel was aware of any confidential information about Pope that would require

disqualification in this lawsuit. The trial court’s ruling was the result of a reasoned



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decision and not arbitrary. Accordingly, under the applicable standard of review, we

hold that the trial court did not abuse its discretion by denying the motion to

disqualify.

   VI.       The Martins’ motion for attorneys’ fees

         The Martins also challenge the trial court’s judgment in this case, arguing that

the court should have awarded them attorney’s fees. The Martins concede that,

although they filed a timely notice of appeal challenging the denial of their motion

for attorneys’ fees, they did not file an appellants’ brief on this issue; instead, the

Martins raised this issue in their appellees’ brief after responding to Pope’s

arguments.

         A party who files a notice of appeal must file an appellant’s brief setting forth

the reasons why the challenged order or judgment is infirm. See Cherry, Bekaert &

Holland v. Worsham, 81 N.C. App. 116, 118, 344 S.E.2d 97, 99 (1986). Ordinarily, an

appellant who fails to file an appellant’s brief will be deemed to have abandoned any

argument on those issues. See N.C. R. App. P. Rule 28(h) (2017). Applying that rule

here, the Martins abandoned their attorneys’ fees challenge by failing to submit an

appellants’ brief on that issue.

         To be sure, the Martins presented their argument in their appellees’ brief, so

this Court understands the merits of their claim. And, we recognize that our Supreme

Court has encouraged us to reach the merits of issues presented on appeal whenever



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possible, to ensure “fundamental fairness to litigants” and to “promote public

confidence in the administration of justice in our appellate courts.” Dogwood Dev. &

Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366

(2008).

      But this case is a rare example of one in which fundamental fairness and public

confidence in the administration of justice cut the other way. The bulk of the Martins’

brief addresses Pope’s failure to preserve his own arguments for appellate review.

Were we to reach the merits of the Martins’ attorneys’ fees claim, while declining to

address Pope’s arguments because they were not preserved, the result would appear

unfair and unjust. As a colleague on our State’s federal bench once observed, “courts

recognize that what is good for the goose is good for the gander.” Racick v. Dominion

Law Assocs., 270 F.R.D. 228, 233 (E.D.N.C. 2010).

      Moreover, Pope was prejudiced by the sequencing of the Martins’ arguments.

Had the Martins filed an appellants’ brief, Pope could have responded to the

attorneys’ fees issue in an 8,750-word appellee’s brief. Instead, Pope was forced to

respond to the Martins’ attorneys’ fees issue in a far shorter 3,750-word reply brief

while also addressing the Martins’ arguments concerning his own claims on appeal.

Thus, we hold that the interests of justice are best served by deeming the Martins’

attorneys’ fees issue abandoned for failure to assert it in an appellants’ brief.




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                             Conclusion

For the reasons discussed above, we affirm the trial court’s judgment.

AFFIRMED.

Judges ELMORE and INMAN concur.




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