An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-769
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
MILDRED WILLIAMS,
Plaintiff-Appellant,
v. Mecklenburg County
No. 10 CVS 9849
SHONDU LAMAR LYNCH, TYISHA
STAFFORD, THOMAS C. RUFF, JR.
d/b/a THOMAS C. RUFF, JR. &
ASSOCIATES, and FIRST CITIZENS
BANK & TRUST COMPANY,
Defendants-Appellees.
Appeal by Plaintiff from judgment entered 28 October 2013
and orders entered 30 December 2013 by Judge Eric L. Levinson in
Superior Court, Mecklenburg County. Heard in the Court of
Appeals 8 December 2014.
Tin, Fulton, Walker & Owen, PLLC, by John W. Gresham; and
Vann Law Firm, P.A., by Christopher M. Vann, for Plaintiff-
Appellant.
Poyner Spruill LLP, by Cynthia L. Van Horne and E.
Fitzgerald Parnell, III, for Defendant-Appellee Thomas C.
Ruff, Jr. d/b/a Thomas C. Ruff, Jr. & Associates,
Defendant-Appellee.
McGEE, Chief Judge.
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Mildred Williams (“Plaintiff”) was living in Florida in
February 2004 when Shondu Lamar Lynch (“Lynch”) contacted her
concerning real property Plaintiff owned in Charlotte at 300
Wednesbury Boulevard (“the property”). Lynch represented
himself as a realtor, and he convinced Plaintiff to allow him to
place the property on the market for sale and to act as her
agent. Plaintiff signed a general power of attorney on 4
February 2004, whereby Plaintiff gave Lynch authority to “act in
[her] name, place and stead in any way which [she] [herself]
could do, if [she] were personally present, with respect to”
real estate transactions, “to the extent that [she] [was]
permitted by law to act through an agent[.]” This general power
of attorney was signed and notarized, and the blank space in the
box next to the section granting Lynch powers to conduct real
estate transactions for Plaintiff was initialed by Plaintiff.
In a blank space following a section labeled “Other Terms[,]”
the following wording was handwritten: “Further in regards to
the real estate property located at 300 Wednesbury Blvd, I
Mildred William[s] give full authority to Shondu Lynch
aforemention [sic] property and receive[d] monitery [sic]
proceeds should be made payable to Shondu Lynch.” The blank
space labeled “Other Terms” did not have a box for initialing,
and Williams did not initial that space. There was a section
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labeled “Durable Provision:” with a blank space in a block to
the left that could be initialed to make this general power of
attorney durable, but the block space was not initialed.
An offer to purchase was made on the property, and Thomas
C. Ruff, Jr. (“Defendant”) was retained as the closing attorney.
Defendant testified that when reading the general power of
attorney he “noticed that the section . . . provided for
durability . . . wasn’t initialed, so [he] felt that would be
more appropriate that it be and, as a result of that conclusion,
prepared and had sent to” Plaintiff a limited power of attorney
with a durability provision. This limited power of attorney,
notarized 7 April 2004, stated in relevant part:
I, [Plaintiff], pursuant to the provisions
of the N.C. General Statutes [§] 32A-1 et
seq., do hereby appoint SHONDU LYNCH, as my
true and lawful attorney-in-fact, which
appointment shall continue in effect
notwithstanding any incapacity or mental
incompetence of mine which occurs after the
date of execution and acknowledgment hereof;
AND I do empower the said SHONDU LYNCH, as
my attorney-in-fact to act for me and in my
name, place, and stead to sign any documents
and otherwise deal with any and all real
property or any interest in any of the same
which I may now or hereafter own, and
especially to execute all necessary
documents in order to convey good and
marketable title to such property, and to do
any act or thing and enter into any such
transaction as he may see fit and in his
discretion find to be for my best interest
to facilitate such sale; and I do further
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empower my said attorney-in-fact with full
power and authority to do any and every act
for me, and in my name, that I could do
personally present and under no disability
relating to such sale.
This limited power of attorney was specifically limited to
Plaintiff’s property at 300 Wednesbury Boulevard. Plaintiff
signed this limited power of attorney and her signature was
notarized on 7 April 2004. There are three documents relevant
to this appeal — the general power of attorney, the limited
power of attorney, and a third document that was notarized on 7
April 2004 by the same notary who notarized the limited power of
attorney and was given to Defendant prior to closing. This
third document (“the unsigned authorization”) stated: “I,
Mildred Mercedes Williams give authorization to Attorney Tom
Ruff, Charlotte, NC, to make proceeds from closing payable to
Shondu Lynch for the property located at 300 Wednesbury Blvd.
Charlotte, NC 28269.” The document was typed except for the
names “Mildred Mercedes Williams,” and “Shondu Lynch,” which
were handwritten in underlined blank spaces. The unsigned
authorization was not signed by Plaintiff or anyone else other
than the notary who had notarized it.
The sale of the property proceeded, and a check for the net
proceeds of $135,597.03 was drawn on Defendant’s trust account
and made payable to “Mildred Williams” at the 8 April 2004
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closing. This check was delivered to Lynch, who took the check
to First Citizens Bank ("First Citizens") and attempted to
negotiate the check. First Citizens refused to negotiate the
check in the manner requested by Lynch. At the request of First
Citizens and Lynch, Defendant had one of his employees modify
the check so that the payee line read: “Shondu Lynch for Mildred
Williams.”
Lynch was able to negotiate the check at First Citizens
after the alteration. Plaintiff apparently was unaware the
closing had occurred until her mortgage company sent her a
letter informing her the mortgage on the property had been paid
in full. Plaintiff received none of the proceeds of the sale
from Lynch, and she filed this action against Lynch, Defendant,
and others. A default judgment was entered on 13 February 2012
against Lynch for $135,597.03, the full amount of the check.
Plaintiff voluntarily dismissed her first complaint without
prejudice as to Defendant on 5 May 2009. Plaintiff filed a new
complaint ("second complaint") on 5 May 2010. The second
complaint alleged essentially the same facts as Plaintiff's
first complaint, and alleged claims against Defendant for breach
of contract, conversion, and “Professional Malpractice.”
Defendant filed a motion to dismiss, contending that the claims
against him in the second complaint were barred by the statute
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of limitations. The trial court granted Defendant’s motion to
dismiss on 26 August 2010. Williams v. Lynch, __ N.C. App. __,
__, 741 S.E.2d 373, 375 (2013) (“Williams I”).
This Court reversed the trial court’s dismissal of
Plaintiff’s “professional malpractice,” or professional
negligence, claim against Defendant and remanded for trial on
that claim. Id. at __, 741 S.E.2d at 377. Plaintiff’s claim of
professional negligence against Defendant was tried on 14
October 2013. Plaintiff's motion for directed verdict at the
close of the evidence was denied. The jury determined that
Plaintiff had not been “damaged by the professional negligence
of Defendant[.]” The trial court entered judgment on 28 October
2013, ordering that Plaintiff recover nothing from Defendant,
and that all claims against Defendant be dismissed. Plaintiff
filed a Rule 50(b)(1) motion on 8 November 2013, requesting
“that the verdict and judgment be set aside and judgment entered
in her favor[,]” or, in the alternative, that she be granted a
new trial. Plaintiff’s motion was denied by order entered 30
December 2013. Plaintiff appeals.
I.
Plaintiff argues that the trial court erred “by not
allowing the introduction of or the cross-examination of
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Defendant’s expert witness with 2003 Formal Ethics Opinion 7.”
We disagree.
Formal Ethics Opinion 7 states: “Opinion rules that a
lawyer may not prepare a power of attorney for the benefit of
the principal at the request of another individual or third-
party payer without consulting with, exercising independent
professional judgment on behalf of, and obtaining consent from
the principal.” 2003 Formal Ethics Opinion 7.
Defendant made a motion in limine to prevent Plaintiff from
using Formal Ethics Opinion 7 as a basis for establishing
Defendant’s alleged professional negligence. The trial court
heard Defendant's motion on the first day of trial. Plaintiff’s
attorney argued that Plaintiff was not seeking to admit the
ethics opinion as part of “the basis for our claim that there
was malpractice.” Plaintiff argued that the professional
negligence claim was based upon Defendant “being handed a check
by [Lynch] saying the bank won’t negotiate it, will you put my
name on it, [and] at that point had the clear chance to look at
three documents.” Plaintiff explained the basis for the
professional negligence claim was Defendant’s reliance on the
general power of attorney, the limited power of attorney, and
the unsigned authorization, in deciding to present Lynch with a
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check for the sale proceeds of the property made out to “Shondu
Lynch for Mildred Williams.”
“‘The judge has a wide discretion to make or refuse to make
advance rulings. . . .’ McCormick on Evidence, Section 52 (3rd
ed. 1984). The ground for reversing a court's decision on such
a motion is an abuse of discretion.” Webster v. Powell, 98 N.C.
App. 432, 439, 391 S.E.2d 204, 208 (1990) (citation omitted).
Plaintiff makes no argument in her brief that the trial court
abused its discretion in preventing Plaintiff from cross-
examining Defendant’s expert with Formal Ethics Opinion 7, and
makes no argument concerning how she was prejudiced assuming
arguendo the trial court did abuse its discretion. Plaintiff
merely states:
Plaintiff should have been permitted to
cross-examine the expert with this ethics
opinion and ask whether the standard of care
required an attorney to consult with his
client and obtain her consent before
preparing a power of attorney. The trial
court committed error by prohibiting this
line of inquiry and a new trial is required.
We hold that Plaintiff fails to show the trial court abused
its discretion by granting Defendant’s motion in limine. This
argument is without merit.
II.
Plaintiff next argues that “the trial court erred by
denying Plaintiff’s motion for a directed verdict and judgment
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notwithstanding the verdict [JNOV] since [Defendant] had no
legal authority to give the sales proceeds to Shondu Lynch.” We
disagree.
Our Supreme Court has stated the appropriate standard of
review for a JNOV:
[A] motion [for judgment
notwithstanding the verdict] is
essentially a renewal of an earlier
motion for directed verdict.
Accordingly, if the motion for directed
verdict could have been properly
granted, then the subsequent motion for
judgment notwithstanding the verdict
should also be granted. In considering
any motion for directed verdict, the
trial court must view all the evidence
that supports the non-movant's claim as
being true and that evidence must be
considered in the light most favorable
to the non-movant, giving to the non-
movant the benefit of every reasonable
inference that may legitimately be
drawn from the evidence with
contradictions, conflicts, and
inconsistencies being resolved in the
non-movant's favor. This Court has
also held that a motion for judgment
notwithstanding the verdict is
cautiously and sparingly granted. It
is also elementary that the movant for
[judgment notwithstanding the verdict]
must make a motion for directed verdict
at the close of all the evidence.
Bryant v. Nationwide Mut. Fire Ins. Co., 313
N.C. 362, 368–69, 329 S.E.2d 333, 337–38
(1985) (internal citations omitted). “On
appeal our standard of review for a judgment
notwithstanding the verdict is the same as
that for a directed verdict; that is,
whether the evidence was sufficient to go to
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the jury.”
Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 192 N.C.
App. 114, 125, 665 S.E.2d 493, 501 (2008) (citations omitted).
Plaintiff’s argument on appeal is that the trial court
erred in denying Plaintiff’s motions because “[n]one of the
three documents that [Defendant] relied upon gave him the
authority to put Mr. Lynch’s name on the proceeds check so that
Mr. Lynch could cash it.”
Both Plaintiff and Defendant presented expert testimony at
trial. Plaintiff’s expert, attorney Michael K. Elliott
(“Elliott”), stated that he would have been suspicious because
of the handwritten authorization in the general power of
attorney and the unsigned authorization purporting to instruct
Defendant to make the proceeds check payable to Lynch. Elliott
testified: “Definitely before I wrote out a six-figure check, I
would have talked to [Plaintiff] about this before I did so.”
Elliott opined that Defendant “breached his duty of care, or
standard of care, to [Plaintiff] by altering the check to allow
Mr. Lynch to leave with it.” However, because we are reviewing
the trial court’s decision to deny Plaintiff’s motion to dismiss
and motion for a JNOV, we cannot consider this testimony, as it
is favorable to Plaintiff. Id. (“In considering any motion for
directed verdict . . . contradictions, conflicts, and
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inconsistencies [in the evidence are] resolved in the non-
movant's favor.”).
Upon cross-examination, Elliott agreed that he had
acknowledged in his deposition “that the matters about which [he
was] opining [that Defendant should have contacted Plaintiff
before altering the check] were on points of law that had not
been settled by the appellate courts of North Carolina,” and
that “[r]easonable minds could differ as to whether or not what
[he] opined . . . actually was required by the standard of
care.” Elliott testified at trial that his opinion had changed
since his deposition, and that his belief at the time of the
trial was “competent practice would have required the closing
attorney to at least contact the principal before drafting
another power of attorney.” Elliott was asked if he agreed
“that through th[e] limited power of attorney, that Mr. Lynch
had the authority to receive and endorse checks for
[Plaintiff.]” Elliott answered: “That’s what [the limited power
of attorney] says.”
Defendant’s expert witness, attorney Ralph McMillan
(“McMillan”), testified that he believed Defendant's purpose in
drafting the limited power of attorney “was to make it durable,
because that’s what the title companies like to see in a
residential transaction to make sure that the title is good.”
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McMillan opined that the two powers of attorney provided the
authority required for Lynch to act on Plaintiff’s behalf in the
manner he did. McMillan further testified that Defendant was
correct under the law in relying on the two powers of attorney
in taking “instructions concerning the closing in question from
Shondu Lynch[,]” and that the two powers of attorney allowed
Defendant to make the check payable to “Shondu Lynch for Mildred
Williams.” In fact, McMillan’s opinion was that Defendant was
compelled to alter the check in response to Lynch’s request.
Finally, McMillan testified that, in his expert opinion,
Defendant “conformed his conduct to the applicable standard of
care for Mecklenburg County, North Carolina, lawyers in 2004[.]”
When the evidence is viewed in the light most favorable to
Defendant, as we are required to do, and not considering
evidence favorable to Plaintiff, we hold the evidence was
sufficient to submit to the jury on the claim of professional
negligence, and Plaintiff’s motions for directed verdict and
JNOV were properly denied. This argument is without merit.
III.
Plaintiff next argues that the trial court erred in
“instructing the jury that the powers of attorney at issue
authorized Mr. Lynch to direct [Defendant] to make the sales
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proceeds check payable to Shondu Lynch for Mildred Williams.”
We disagree.
The following discussion occurred at the preliminary charge
conference:
[PLAINTIFF'S ATTORNEY]: Now, I don’t think
that the court has ruled about the
obligation to interpret the scope of the
power of attorney, especially given the
arguments we have made about them.
THE COURT: I do intend to instruct them.
There needs to be some modification, some
language here, because I'm a little worried
about some of the peremptory implications
for the jury, possible peremptory
instruction concerning that. But I do
intend to instruct the jury that the powers
of attorney standing alone would generally –
would authorize an attorney to engage in
this real estate transaction and to disburse
moneys, but go on and say that that does not
-- in some way I need to fashion a language
that it does not necessarily -- this does
not mean that it shields from all possible
liability those –
[PLAINTIFF'S ATTORNEY]: Disbursements which
may be negligent.
THE COURT: Right. Go on and describe in
some way with a sentence or two that here
the gravamen of the malpractice claim is
that this later document gave rise or should
have given rise or that an ordinary lawyer
or blah, blah, blah, would have taken or
done – taken some measure or something. I
don't plan to just stop, because to do so is
[to] suggest to the jury that they should,
frankly, find –
[PLAINTIFF'S ATTORNEY]: It sounds like that
language would be what we could accept.
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THE COURT: So it is my – I haven’t gone back
– I didn’t share this peremptory concern I
have with you before. I’m looking at
everything in the totality, but . . . it’s
my current thought that, yes, it’s my
intention to tell them that those powers of
attorney would authorize a lawyer, and that
they were valid, you know, on the four
corners of that document, however I put it
in some way, and I’m going to work on the
language here, but then go on and add a
sentence, et cetera, that says that this
case is about this, without telling them
again what they should do or not do or try
to give them some language that doesn’t
infer to them or push them one way or the
other.
[PLAINTIFF'S ATTORNEY]: Right. A neutral –
THE COURT: All right.
The following day the trial court presented its proposed
instruction to the parties. In her brief, Plaintiff argues:
The trial court instructed the jury that
“both the general power of attorney and the
limited power of attorney authorize Mr.
Lynch to direct [Defendant] to make the
sales proceeds check payable to Shondu Lynch
for Mildred Williams.” This statement was
an incorrect statement of the law. There is
no authority in either the general power of
attorney or the limited power of attorney
for [Defendant] to alter the check. . . . .
The trial court’s instruction misled the
jury and mandates a new trial.
When the trial court asked Plaintiff to state any objection
to the instructions for the record, Plaintiff stated:
[PLAINTIFF'S ATTORNEY]: Your Honor, on the
instructions with regard to the general and
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limited power are valid, because as we
signed them, et cetera, that paragraph? As
we have indicated, we do not believe, with
the first power of attorney, the general
power of attorney, that that instruction, we
believe, is incorrect. I believe the second
is that that one is clearly more -- that one
is less, so. With regard to the -- and,
therefore, that would include the next
paragraph, because that is where you set out
that the law allows them to do that.
The trial court’s entire instruction on this matter was as
follows:
Ladies and gentlemen, as a preliminary
matter I offer the following two
instructions or conclusions to you that you
must accept as true for the purposes of your
deliberation. First, both the general power
of attorney and the limited power of
attorney are valid because [Plaintiff]
signed them. They both appear to be duly
notarized, and because a power of attorney
is effective whether or not it has been
recorded.
Second, both the general power of attorney
and the limited power of attorney authorize
Mr. Lynch to direct [Defendant] to make the
sales proceeds check payable to Shondu Lynch
for [Plaintiff]. Ladies and gentlemen,
North Carolina law provides unless, one, a
lawyer has actual knowledge that her writing
is not a valid power of attorney, or, two,
the action taken or to be taken by the
attorney-in-fact, who in this case was
Shondu Lynch, is beyond the apparent power
or authority of, granted in the power–of-
attorney writing, a lawyer who in good faith
relies on a writing that on its face is duly
signed, acknowledged, and otherwise appears
reputable and that purports to confer a
power of attorney, durable or otherwise,
shall be protected to the full extent of the
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powers and authority that . . . reasonably
appear to be granted to the attorney-in-fact
designated in the power of attorney, and no
lawyer dealing in good faith with the
attorney-in-fact shall be held responsible
for any breach of fiduciary duty by that
attorney-in-fact, including any breach of
loyalty, any act of self-dealing, or any
misapplication of money or other property
paid or transferred as directed by that
attorney-in-fact. An attorney is not
required to inquire as to the effectiveness
of a power of attorney before he relies on
it.
Ladies and gentlemen, notwithstanding these
two instructions or conclusions, which,
again, you must accept as true for purposes
of your deliberations, I instruct you that
these two instructions or conclusions are
not dispositive of whether, once [the
unsigned authorization] was presented to
[Defendant], his failure to contact
Plaintiff to obtain her approval constituted
negligence.
Although it is difficult to follow Plaintiff’s objection,
the apparent stated objection was to the following portion of
the instruction: “both the general power of attorney and the
limited power of attorney are valid because Mrs. Williams signed
them. They both appear to be duly notarized, and because a
power of attorney is effective whether or not it has been
recorded.” Further, Plaintiff was apparently only objecting to
this portion of the instruction as it related to the general
power of attorney, not the limited power of attorney. Plaintiff
further stated: “that would include the next paragraph, because
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that is where you set out that the law allows them to do that.”
This portion of the objection seems to reference the second
paragraph, which includes the portion of the instruction
objected to on appeal: That “both the general power of attorney
and the limited power of attorney authorize Mr. Lynch to direct
[Defendant] to make the sales proceeds check payable to Shondu
Lynch for Mildred Williams.” However, Plaintiff’s objection at
trial did not specifically address this portion of the
instruction.
In similar circumstances, our Supreme Court has held that
[p]ursuant to N.C. R. App. P. 10(b)(2),
[a] party may not assign as error any
portion of the jury charge or omission
therefrom unless he objects thereto
before the jury retires to consider its
verdict, stating distinctly that to
which he objects and the grounds of his
objection; provided, that opportunity
was given to the party to make the
objection out of the hearing of the
jury, and, on request of any party, out
of the presence of the jury.
In the instant case defendant was given the
opportunity to object to the wording of the
instruction on flight and failed to do so.
Defendant has not alleged, nor do we find,
plain error. This assignment of error is
overruled.
State v. Beck, 346 N.C. 750, 759, 487 S.E.2d 751, 757 (1997).
Because Plaintiff failed to properly and distinctly object to
the relevant portion of the instruction at trial, and because
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Plaintiff has not argued plain error, this argument has not been
preserved for appellate review. This argument is dismissed.
IV.
Finally, Plaintiff argues that the trial court erred in
instructing the jury on insulating negligence. We disagree.
Plaintiff contends that “[t]he negligent conduct of
[Defendant] was placing Mr. Lynch’s name on the check without
first communicating with [Plaintiff] or having any instruction
in the powers of attorney to do so. This negligence was
completely independent from Mr. Lynch’s conduct in stealing the
money from Plaintiff.” However, the fact that Defendant’s
alleged negligent act was completed before Lynch’s illegal act
is not dispositive. Defendant’s alleged negligent act and the
Plaintiff’s claim of professional negligence against Defendant
are not synonymous. Plaintiff was not damaged at the time
Defendant altered the check, Plaintiff was damaged when Lynch
withdrew her money and kept it for himself.
An essential element of [professional
negligence] is a showing that [the]
defendant proximately caused [the
plaintiff’s] damages. Rorrer v. Cooke, 313
N.C. 338, 355, 329 S.E.2d 355, 366 (1985)
(professional malpractice claim against
attorney requires existence of proximate
cause)[.]
Proximate cause is defined as “a cause which
in natural and continuous sequence, unbroken
by any new and independent cause, produced
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the plaintiff's injuries, and without which
the injuries would not have occurred[.]”
Self v. Yelton, 201 N.C. App. 653, 659, 688 S.E.2d 34, 38 (2010)
(citations omitted) (emphasis added). Therefore, in this case
Plaintiff had to prove not only that Defendant committed a
negligent act, but that this negligent act was a proximate cause
of Plaintiff’s damages. Insulating negligence, if proven, can
serve to sever that link between a defendant’s negligent act and
the plaintiff’s damages. Insulating negligence is a method of
proving that a “new and independent cause” broke the causal link
between a defendant’s negligent act and the plaintiff’s damages.
Plaintiff fails to make the appropriate argument on appeal.
Plaintiff should have argued that no evidence was presented at
trial that any act of Lynch broke the causal link between
Defendant’s alleged negligence and Plaintiff’s damages. Because
Plaintiff failed to do so, this argument is abandoned.1 Beck,
346 N.C. at 759, 487 S.E.2d at 757. Further, Plaintiff does not
indicate in her brief that she objected to this instruction at
trial, nor does she argue that any error in the instruction
amounted to plain error. Id. This argument is dismissed.
V.
1
Plaintiff’s general statement that “[t]here was no evidence in
the record to support the instruction of insulating negligence”
does not suffice.
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We do not address Plaintiff’s argument concerning
contributory negligence because the jury determined that
Defendant did not commit professional negligence and therefore
did not reach the issue of contributory negligence. Plaintiff
concedes in her brief “that if Defendant is the prevailing party
then he is entitled to costs as provided in the order.”
Therefore, we do not address her argument related to costs.
No error.
Judges STEELMAN and BELL concur.
Report per Rule 30(e).