Johnson v. Garwood, 49 N.C. App. 462 (1980)

Nov. 4, 1980 · North Carolina Court of Appeals · No. 8025SC387

49 N.C. App. 462

KENNETH H. JOHNSON v. WANDA B. GARWOOD and husband, JOHN GARWOOD; PEGGY B. NEWSOM and husband, CHARLES NEWSOM; KAYE B. MANN and husband, ROBERT LEWIS MANN

No. 8025SC387

(Filed 4 November 1980)

Appeal and Error § 6.2- partial new trial on damages issue - no appeal

Defendant may not appeal from an order directing a new trial solely on the issue of damages.

Appeal by defendants from Collier, Judge. Order entered 19 November 1979 in Superior Court, Catawba County. Heard in the Court of Appeals 15 October 1980.

This is a civil action in which plaintiff seeks actual and punitive damages for defendants’ alleged wrongful conveyance of property to a third party. Plaintiff’s evidence tended to show his deed to defendants was in reality a mortgage while defendants’ evidence suggested a deed absolute from plaintiff coupled with an option to repurchase. Defendants’ motion for a directed verdict on the issue of punitive damages was allowed. A directed verdict was also granted dismissing the case as against defendants John Garwood, Charles Newsom, and Robert Lewis Mann. The jury returned a verdict in favor of plaintiff as to the remaining defendants, awarding $313.00 in damages. The judge set aside the damage award as being against the greater weight of the evidence and ordered a new trial as to the amount of damages only. Defendants appeal from the judge’s refusal to grant a new trial as to all the issues.

No counsel for plaintiff appellee.

Patrick, Harper & Dixon, by Stephen M. Thomas, for defendant appellants.

ARNOLD, Judge.

By this purported appeal we are again presented with an attempt to appeal from an order granting a new trial solely as to the issue of damages. Such an order is interlocutory and there is no immediate right of appeal. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979).

While G.S. l-277(a) provides that “[a]n appeal may be taken from every judicial order or determination .. . which grants or refuses a new trial,” this Court has observed that an order granting only a partial new trial is not subject to immediate appellate review. Insurance Co. v. Dickens, 41 N.C. App. 184, 254 S.E. 2d 197 (1979). Defendant may not appeal from the order directing a new trial solely on the issue of damages.

Appeal dismissed.

Judges Hedkick and Hill concur.