An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1069
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


LOUCRETIA BRAMHALL,

      Plaintiff

      vs.                                     From Gaston County
                                              No. 10-CVS-911
JOHN HURBAN aka MARCUS
BRAMHALL, JEFFREY LIVINGSTON,
JDL ENTERPRISES, INC. and
CHOICEPARTS.NET,

      Defendants.


      Appeal    by   Defendant     from   judgment     and   order    entered     28

January 2013 by Judge Nathaniel Poovey in Gaston County Superior

Court.    Heard in the Court of Appeals 19 February 2014.


      Stott, Hollowell, Palmer & Windham, L.L.P., by Randal S.
      West and Aaron C. Low, for Plaintiff.

      Law Offices of Sanjay R. Gohil, PLLC, by Sanjay R. Gohil,
      for Defendant Hurban.


      DILLON, Judge.


      John     Hurban   a/k/a    Marcus     Bramhall     (“Defendant      Hurban”)

appeals (1) from a judgment entered upon a jury verdict awarding

compensatory and punitive damages in favor of Loucretia Bramhall
                                        -2-
(“Plaintiff”); and (2) from an order denying his motion for a

new trial.       For the following reasons, we dismiss in part and

affirm in part.

                    I. Factual & Procedural Background

      On 22 February 2010, Plaintiff filed a complaint in Gaston

County   Superior        Court   alleging,      inter     alia,    that   she   and

Defendant had operated a pizza equipment supply business, Pizza

Equipment Supply, Inc. (“PESI”), but that Defendant had not been

active in the management or operations of PESI                      since before

2008; that she had filed an action for divorce from Defendant

Hurban in October 2009 and had since been granted “exclusive

possession of [the] property upon which [PESI’s] offices are

located”;    that    Defendant       Hurban   and   the    other    Defendants    –

Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net –

had   “engaged      in   a   joint    venture    and/or     business      agreement

whereby they [sought] to directly compete with [PESI]”; that a

break-in had occurred at the PESI offices on or about 9 January

2010, at which time computer equipment and Plaintiff’s personal

credit card were removed from the offices; that Defendant Hurban

had acknowledged that he had taken part in removing the computer

equipment; and that, with respect to the aforementioned credit

card, Defendants had “caused to be charged against the credit of
                                             -3-
the   Plaintiff        the     sum     of     $20,500.00”          without        Plaintiff’s

authority      or     consent.              Supported        by     these        allegations,

Plaintiff’s complaint           asserted claims              against each          Defendant,

jointly and severally, for larceny, conversion, and conspiracy,

seeking both compensatory and punitive damages.

      On 3 June 2010, Defendant Hurban filed an answer denying

liability.       None of the other Defendants filed an answer or

other pleading or motion in response to Plaintiff’s complaint.

Rather,      Defendant       Livingston        sent     an     email       to     Plaintiff’s

counsel      stating     that        “the    credit       card      in     question       shows

[Defendant Hurban] as an authorized user. . . .                                 Please remove

me and my company from this obvoius [sic] divorce dispute[.]”

Plaintiff’s counsel           forwarded Defendant Livingston’s email                         to

the Gaston County Clerk of Court.

      The    matter     came    on     for    a    jury      trial    in       Gaston    County

Superior Court on 13 November 2012.                     Prior to the start of the

trial, Plaintiff moved for an entry of default as to Defendants

Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net

(hereinafter, the “Defaulting Defendants”), citing their failure

to    file    responsive        pleadings.              The       trial        court    granted

Plaintiff’s      motion        for     entry       of     default         in    open    court,

indicating that “the entry of default is without prejudice to
                                           -4-
Defendant [Hurban] . . . with respect to any of the allegations

in the complaint that refer to Defendants collectively” and that

the     court    would       “enter    that    default     without     prejudice      to

severing those particular portions of the complaint that deal

with all defendants instead of just those separate Defendants.”

       The next day, counsel for the Defaulting Defendants moved

to set aside the entry of default.                   The court, however, denied

the motion, concluding that all Defendants had been properly

served with process and that Defendant Livingston’s email to

Plaintiff’s counsel did “not constitute an answer pursuant to

the rules and [was] not a response.”

       On 16 November 2012, the jury returned a verdict awarding

Plaintiff $21,471.45 in compensatory damages and $1,850,000.00

in    punitive       damages.         Thereafter,    Defendant       Hurban    and    the

Defaulting Defendants each moved for a new trial and, in the

alternative,         requested    that     the      punitive   damages        award    be

reduced pursuant to N.C. Gen. Stat. § 1D-25(b) (2011), which

generally limits the punitive damages award against a particular

defendant       to    the     greater     of     three     times     the   amount      of

compensatory damages awarded or $250,000.00.                         By judgment and

order     entered       28     January     2013,     the     trial     court     denied

Defendants’ motions for a new trial, but reduced the punitive
                                         -5-
damages award to $250,000.00 per Defendant.                       Defendant Hurban

now appeals.

                                  II. Analysis

                A. Motion to Set Aside Entry of Default

      Defendant Hurban raises a number of arguments in contending

that the trial court erred in its entry of default as to the

Defaulting      Defendants      and     further     erred         in     denying        the

Defaulting Defendants’ motion to set aside the entry of default.

The   Defaulting     Defendants,       however,    have     not    appealed.            See

N.C.R. App. P. 3 (mandating that the notice of appeal “specify

the party or parties taking the appeal”).                     Moreover, “only a

‘party aggrieved’ may appeal a trial court order or judgment,”

Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000),

and   Defendant      Hurban    cites     no     authority     demonstrating             his

standing   to    appeal   as    an     aggrieved    party    on        behalf      of   the

Defaulting    Defendants       under    these    circumstances.              See   N.C.R.

App. P. 28(b)(6) (providing that “[t]he body of the argument . .

. shall contain citations of the authorities upon which the

appellant relies”).        We note the trial court’s indication that

the   entry     of   default     was    “without     prejudice          to    Defendant

[Hurban] . . . with respect to any of the allegations in the

complaint that refer to Defendants collectively” and that, as
                                           -6-
discussed further infra, the trial court revised its original

jury instructions to clarify the nature of Defendant Hurban’s

liability    as    compared      to   that     of     the      Defaulting   Defendants.

Defendant Hurban’s purported appeal on behalf of the Defaulting

Defendants        and    his     arguments          in      support      thereof      are,

accordingly, dismissed.            Gaskins v. Blount Fertilizer Co., 260

N.C. 191, 195, 132 S.E.2d 345, 347 (1963)                             (appeal dismissed

where party was “not aggrieved by the judicial order entered”).

                           B. Motion for a New Trial

    Defendant       Hurban       further      contends         that   the   trial     court

erred when it denied his motion for a new trial.                        We disagree.

    Although Defendant Hurban fails to set out the relevant

standard    of    review    as    required       by      our    Appellate    Rules,     see

N.C.R. App. P. 28(b)(6) (providing that “[t]he argument shall

contain a concise statement of the applicable standard(s) of

review     for    each   issue,       which      shall      appear      either   at    the

beginning of the discussion of each issue or under a separate

heading placed before the beginning of the discussion of all the

issues”), the governing standard is as follows:

            A motion for a new trial pursuant to Rule 59
            is   generally   addressed   to  the   sound
            discretion of the trial court. Appellate
            review of the trial court’s ruling on a Rule
            59 motion     is strictly limited to the
            determination    of   whether   the   record
                                          -7-
             affirmatively demonstrates a manifest abuse
             of discretion by the judge. A manifest abuse
             of discretion must be made to appear from
             the record as a whole with the party
             alleging the existence of an abuse bearing
             that heavy burden of proof. 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.

Langwell v. Albemarle Family Practice, PLLC, 203 N.C. App. 666,

669-70,      692     S.E.2d    476,     480     (2010)     (quotation            marks   and

citations omitted).

       Rule 59 provides that a new trial may be granted in the

case of “[e]xcessive . . . damages appearing to have been given

under the influence of passion or prejudice[,]” N.C. Gen. Stat.

§   1A-1,    Rule     59(a)(6)       (2011),    and,     though    not       specifically

citing this provision on appeal, Defendant Hurban contends that

the trial court erred in denying his motion for a new trial on

grounds     that     “there    was    sufficient       evidence    .     .   .    that   the

jury’s      punitive       damages    award     was     given     with       passion     and

prejudice      and     was    vastly     disproportionate          to       the    evidence

presented at trial.”             Defendant       Hurban points to the jury’s

punitive damages award, which he asserts was “more than eighty-

four     times”      the     compensatory       damage     award       of     $21,471.45.

Regarding this award, we note that the trial court reduced it
                                   -8-
significantly to the statutory maximum of $250,000.00.                See N.C.

Gen. Stat. § 1D-25(b).        Defendant Hurban also points to Samons

v. Meymandi, 9 N.C. App. 490, 177 S.E.2d 209 (1970), in support

of his position on this issue.         However, Defendant Hurban cites

to this case     only   generally, without attempting to draw any

specific parallels between the circumstances of that case and

the case at hand.       In Samons, we stated that the jury erred by

awarding punitive damages based on the specific facts of that

case, but that the error “was cured, however, when the trial

judge set the verdict aside.”      Id. at 496, 177 S.E.2d at 212-13.

Likewise, in the present case, any error by the jury in awarding

punitive damages “more than eighty-four times” the compensatory

damages amount was cured when the trial court reduced the award.

Accordingly, this argument is overruled.

    Defendant also cites Plaintiff’s testimony concerning “her

failed     marriage     to    [Defendant],       her       failed     business

relationships    with   [Defendant],     as   well   as    pending    criminal

investigations     by    federal    authorities        for     crimes        that

[Defendant] was never charged with committing” as outside the

scope of this matter and as indicative of Plaintiff’s “attempt

to prejudice the jury” against him.           Even assuming arguendo that

portions   of   Plaintiff’s    testimony      were   not   relevant     to    her
                                          -9-
conversion claim – for which punitive damages are recoverable in

North Carolina, see, e.g., Mace v. Pyatt, 203 N.C. App. 245,

256-57, 691 S.E.2d 81, 90 (2010) – the record reveals ample

relevant evidence supporting the trial’s court decision to deny

Defendant a new trial on this basis.                 For instance, the evidence

indicated that Defendant broke into the place of business of his

former wife and business partner (Plaintiff), stole her computer

and credit card, and attempted to convert her funds to his own

foreign bank account using the stolen credit card.                     In light of

this   evidence     and    the   jury’s    compensatory      damages    award,   we

cannot say that the trial court abused its discretion in finding

that there was the requisite evidence of an “aggravating factor”

– fraud, malice, or willful or wanton conduct – to sustain the

punitive damages award.           See N.C. Gen. Stat. § 1D-15(a) (2011)

(providing that punitive damages are awardable “if the claimant

proves that the defendant is liable for compensatory damages and

that [fraud, malice, or willful or wanton conduct] was present

and was related to the injury for which compensatory damages

were awarded”).

       Finally, we turn to Defendant Hurban’s contention that he

was    prejudiced     by    a    portion        of   the   trial   court’s    jury

instructions, which he asserts “had the natural tendency to more
                                           -10-
likely than not confuse the members of the jury as to whether or

not all four defendants were liable for conversion, conspiracy,

and punitive damages.”              Our review of the record reveals that

Defendant      Hurban       did     not      object        to     the        complained       of

instructions        and    has    thus    failed    to     preserve          the    issue    for

appeal.     N.C.R. App. P. 10(a)(2) (providing that “[a] party may

not make any portion of the jury charge or omission therefrom

the   basis    of    an    issue    presented       on     appeal       unless      the    party

objects     thereto        before    the     jury        retires       to     consider       its

verdict”);     Lumley       v.    Capoferi,    120       N.C.     App.       578,    582,    463

S.E.2d 264, 266 (1995) (concluding that plaintiffs failed to

preserve      issue       for    appellate     review       where        “plaintiffs         had

several     opportunities           to    object      to        the    proposed       special

instruction before the jury retired, but failed to do so”).

Even assuming arguendo that Defendant had preserved this issue

for appellate review, after careful review of the instructions,

we discern no prejudice to Defendant – certainly none that would

amount to reversible error – inherent in the jury instructions

at issue.      Rather, they reflect a reasonably tailored effort to

clarify the court’s prior instructions and, at least in part, to

distinguish      Defendant         Hurban’s    liability              from    that    of     the

Defaulting Defendants.
                                   -11-
                              III. Conclusion

    For    the   foregoing     reasons,     we    (1)    dismiss    Defendant

Hurban’s   contentions   relating    to    the   trial   court’s    entry   of

default and denial of the Defaulting Defendants’ motion to set

aside the entry of default, as Defendant Hurban has failed to

demonstrate   standing   to    appeal     from   those   rulings;    and    (2)

affirm the trial court’s decision to deny Defendant Hurban’s

motion for a new trial.

    DISMISSED in part; AFFIRMED in part.

    Judges BRYANT and STEPHENS concur.

    Report per Rule 30(e).
