Rhyne v. K-Mart Corp.

IN THE COURT OF APPEALS RHYNE v. K-MART CORP. [149 App. (2002)] DAN RHYNE and ALICE RHYNE v. K-MART SHAWN CORPORATION, ROBERTS, and JOSEPH HOYLE

No. COA00-1516 April (Filed 2002) Damages Law; 1. Constitutional and Remedies— statute capping punitive damages right award jury trial— — separation powers open guarantee special leg- courts — — process equal protection vagueness islation —due — — by jury’s

The trial court did not err reducing the award of punitive plaintiffs $11.5 damages $250,000 from million each to cap, limit, each accordance with the puni- on the award of damages by tive under N.C.G.S. refusing § ID-25 and to declare unconstitutional, (1) statute because: the statute does not vio- late the trial under N.C. Const. Art. § 25 since constitutionally required trials are not range a wide of civil “respect” property cases that do not including punitive damages; (2) the principle separation pow- statute does not violate the allegedly power ers by exercising puni- of remittitur since a cap damages operate tive and remittitur are not the same and differing circumstances; under (3) open guarantee courts is not damages limited; violated since actual (4) are not the statute special legislation, does not constitute and it does not violate N.C. II, 24, Const. cl.(l)(i) I, 32; Art. or N.C. (5) § Const. Art. § process statute does not equal protection violate due since property by there can be no taking placing cap punitive damages infringement enjoy and no on the the fruits of labor, plaintiffs carry one’s own cannot their burden of show- ing relationship the statute legitimate bears no rational government interest; (6) unconstitutionally the statute is not vague provides since the language statute sufficient for uniform judicial administration. Damages per plaintiff and Remedies— — per rather than claim basis

The trial court did not err capping damages on a per plaintiff per basis, rather than a claim because: N.C.G.S. ID-25 limits to no more than three times the compensatory damages $250,000, awarded or whichever greater, compensatory and all awarded to a must therefore be totaled to cap; one number for consideration of the

RHYNE v. K-MART CORP. per (2) improperly claim basis duplicate would allow for credit compensatory award; one and (3) language of the statute speaks single plaintiff. award for each Damages 3. and Remedies— not —award excessive by

The trial court did err determining not the modified award of $250,000 excessive, was not (1) because: ratio actual to approxi- harm the award is mately plaintiff 1to plaintiff husband and 23 wife; (2) the actions violent; of defendant were individuals (3) corporation plaintiffs defendant accused and trespassing against instituted assault charges plaintiff in husband order to keep plaintiffs taking from charges against out criminal defend- corporation; plaintiffs ant and (4) physical suffered both and problems psychological plaintiff a result, as and wife now has a permanent heart arguably condition that is traceable to the inci- at dent issue. attorney

4. Costs— case fees — The trial court did err in seeking punitive not an action dam- by denying ages attorney fees ID-45, under N.C.G.S. § because: plaintiffs (1) although corporation discuss how defendant engaged practices in corporation, plaintiffs malicious as a acts may fail establish how defendant’s defense have been mali- frivolous; plaintiffs cious or (2) and failed to an show abuse of by discretion trial court under these circumstances. Appeal

5. preservation and Error— issues —failure

object

Although corporation defendant contends the trial court by erred in an seeking action concluding that corporation defendant is not entitled to a new trial on based plaintiffs’ discovery introduction of evidence of mis- defendant’s conduct, preserve defendant appeal failed this issue for objected (1) specifically because: defense counsel never to the corporation’s demonstrating inclusion of evidence defendant mis- during discovery on grounds argued; conduct now and may appeal a civil case not raise an that not issue was raised at the level.

Judge concurring part dissenting part. Greene OF APPEALS IN THE COURT

RHYNE K-MART CORP. Corporation judg- from Appeal by plaintiffs K-Mart and defendant May by D. Boner in Gaston Judge Richard ment entered 17 Appeals 16 October County Superior in the Court Court. Heard Mazzariello, Gray, Layton, Peck, Arcangelo, S. M. Robert Smith, PA, by & William E. Kersh, Solomon, Sigmon, Furr Moore, plaintiffs. Jr. for (pro LLP, Leigh Levine, James C. Grant Bird, M.

Alston & (pro vice), hoc vice), Nowell D. Berreth hac for defendant K-Mart. Lawrence, LLP, by Craige

Patterson, Harkavy & Burton Academy Lawyers, North Carolina Trial North Carolina for Long Care, Inc., North Carolina in Term Friends Residents Development Center, and American Community Justice and Carolina, Legal North Foundation Civil Liberties Union Amici Curiae. Jemigan, LLP, by & Anderson, Blount, Dorsey, Smith, Mitchell Taylor Fowler; Maupin, Kerr, Y. II Johanna S. and James Neely, Farr, North Ellis, by & PA B. Jr. and Thomas Charles for Industry, Curiae. Business and Amicus Carolina Citizens for Popeo Washington Legal Taylor J. Samuel M. and Daniel for Foundation, Educational Amici Curiae. Foundation and Allied Cowan, Moore, by Helms, LLP, & J. Donald Jr. Smith, Mulliss Liability Garrison, Advisory Frye Product and Lisa Council, Curiae. Amicus THOMAS,Judge. is whether North Carolina’s primary issue in this case

The authority Assembly enacting its exceeded constitutional General limit, damages. cap, or on the award of ID-25 became effective Carolina General Statute North January cap placed on the amount of 1996 and $250,000 compensatory or three times the could be awarded at that larger. is damages, whichever Rhyne (Mrs. Rhyne Rhyne) Dan and Alice

Here, plaintiffs (Mr. compensatory dam- wife, received verdicts for Rhyne), husband and respectively, against $8,255 $10,730, amounts of ages THE OF IN COURT APPEALS

RHYNE K-MART CORP. Corporation (K-Mart). defendant K-Mart The then awarded each $11.5 million of them damages. accordance with its interpretation ID-25, of section court reduced the $250,000per damages awards to claimant. appeal. They

Plaintiffs contend section ID-25 is unconstitutional under North Carolina Constitution in it: (1) that violates their jury trial; (2) separation powers principle; violates the (3) open guarantee; violates the improper courts constitutes an form special legislation; (5) principles process, equal pro- violates due tection, enjoy and the labor; the fruits of one’s own and (6) is vagueness. void for disagree plaintiffs’

We with reasoning contentions. Based on the herein, Assembly hold we the General within acted the bounds of the North Carolina Constitution and in accordance its legislative with prerogative. constitutional,

Because is section ID-25 we also address three by plaintiffs They other issues raised (a) K-Mart. are: whether $250,000 cap applied per claim, per plaintiff, per be defendant; (b) whether plain- the trial court in denying erred request attorney fees; tiffs’ (c) and whether K-Martis entitled to a

new trial. pertinent April 1998, plaintiffs facts are as follows: On walking

were near a store owned K-Mart. Shawn Defendants Joseph Hoyle employees and (Roberts) (Hoyle), K-Mart, Roberts plaintiffs they confronted and if rummaging through asked had been dumpsters. explained they merely K-Mart’s Plaintiffs walking were dumpsters. exercise and had not touched the day, plaintiffs The again walking next were parking the K-Mart Hoyle approached when lot Roberts and grabbed them. Roberts Mr. Rhyne, put him in a chokehold and forced him to his knees. Mrs. Rhyne jumped screamed and on back. off, Roberts’s He shook her falling in her resulting ground. help to the When to she tried her hus- Hoyle again, pushed band ground. intervened and her back to thereafter, Shortly police two officers arrived. Plaintiffs told the they press charges against officers wanted to criminal Roberts and Hoyle. Meanwhile, Hoyle police they and Roberts told the had seen plaintiffs through dumpsters plaintiffs and going K-Mart’s that were Hoyle guilty trespass. subsequently of theft and Roberts and admit- ted, they only however, dumpsters a that had heard noise near the and APPEALS THE OF IN COURT CORP. K-MART

RHYNE Nonetheless, K-Mart took out plaintiffs. it must have been assumed Rhyne. charges dismissed Mr. were against warrants two assault on 10 June 1998. attention for altercation, plaintiffs sought medical

Following They injuries psychiatric problems. diag- were physical and resulting medication, disorders, prescribed and advised adjustment with nosed Rhyne also a heart attack. counseling. Mrs. suffered to obtain subsequent testimony, and events According expert the altercation relationship “unquan- condition, was her heart but contributed to which Rhyne’s $13,582.40, medical bills totaled Mrs. tifiable.” Rhyne’s Mr. of her heart attack. $11,349.50 for treatment included $5,376.12. wages bills and lost amounted medical Hoyle K-Mart, and on complaint against a Roberts Plaintiffs filed battery, assault, imprisonment, mali- false alleging 31 December In infliction of emotional distress. prosecution, and intentional cious and addition, plaintiffs negligent training K-Mart was claimed relief, security prayer plain- personnel. their supervision of its compensatory punitive damages. and tiffs asked for into ID-30, trial was bifurcated to N.C. Gen. Stat. Pursuant compensatory stages. In the compensatory Hoyle and, although the determined was found not liable stage, liable, plaintiffs’ dis- granted court motion to to be the trial Roberts him. Plaintiffs did prejudice against all claims for miss with jury- against K-Mart, however, with the verdict receive favorable Rhyne. Rhyne $10,730 puni- In the Mr. to Mrs. awarding $8,255 to only K-Mart, plaintiffs proceeding against damages stage, with tive $11.5 plaintiff. Citing each a verdict of million for returned the trial court reduced each dam- lD-25(b), N.C. Gen. Stat. § motions, $250,000. Upon plaintiffs’ the trial court ages award to requests have the statute declared unconstitutional denied their appeal. plaintiffs attorney fees. and K-Mart and for Both (a) the trial court’s assignments of error include: Plaintiffs’ unconstitutional; (b) capping ID-25 section refusal declare per basis; per plaintiff rather than a claim damages requests cross-appeal, attorney In its K-Mart the denial of fees. (c) prejudicially erred dur- its that the trial court new trial based on claim discovery allowing its punitive damages stage evidence of ing the alternative, argues K-Mart the trial court should In the misconduct. damages cap per on basis with applied punitive defendant have the plaintiffs splitting $250,000. the THE OF

IN COURT APPEALS

RHYNE v. K-MART CORP. N.C. Constitutionality of The Section ID-25

I.. ^[1] In their first assignment of error, plaintiffs contend section ID-25 right jury is because violates to a (1) unconstitutional it: their trial; powers (2) separation principle; (3) violates violates open improper spe an form of guarantee; (4) courts constitutes legislation; principles equal protec cial violates of due (5) process, tion, enjoy labor; and the of one’s right (6) the fruits own is vagueness. void for provides:

Section ID-25 (a) punitive actions an seeking damages, all award of the trier fact shall determine amount of dam- ages separately compensation from for all the amount other damages.

(b) against Punitive awarded a defendant shall not compensatory exceed times three the amount or two fifty greater. hundred thousand is ($250,000), dollars whichever If a trier of returns a fact verdict excess of specified subsection, the maximum amount under this the trial court judgment shall reduce the award and enter damages in maximum amount.

(c) provisions (b) shall not subsection this section means, through any including be made known to the trier of fact dire, evidence, voir introduction argument, into instruc- jury. tions to the only ID-25 (1999). argument Gen. Stat. Plaintiffs’ based § is

the North Carolina Constitution thus does federal not invite case scrutiny by implicating law the United States Constitution. Jury

A. Trial Plaintiffs contend is first section ID-25 unconstitutional because jury pro- right pursuant I, it violates to a trial to Art. which their property, respecting vides: “In all at law the ancient controversies by jury rights mode of of the one of the best securities of the people, I, remain inviolable.” Const. Art. and shall sacred and §25.

Our Court has to a trial under held that only: applies Art. where § 25 of the North Carolina Constitution at the trial existed at law or statute time common OF APPEALS IN THE COURT 678 v. K-MART CORP. RHYNE App. (2002)] 672 N.C. [149 the cause of Constitution; (2) and when adoption of the 1868 of the Simpson, v. 325 N.C. “respects ex rel. Rhodes property.” State action 81, N.C. 423 grounds, 333 (1989), rev’d on other 514, S.E.2d 329 385 1868, after originating a of action (1992). 759 For cause S.E.2d authority. statutory Id. upon (citing right jury contingent is trial 568, (1921)). N.C. 109 S.E. Ware, v. Groves by juries prior to 1868. determined damages were Punitive part 67, 69 first of the Allen, 32 N.C. The Gilreath v. See proceed The satisfied, we to the second. so test is therefore property respecting causes of action distinction between rights is fundamental and well-established. respecting other those our Court held Campbell, (1825), 10 N.C. v. Smith that: may a

Property thing which man have dominion a over he not the law. pleases, it as so that violates power to do with he may pleasure. person at A has an give, grant, or sell it his He only, thing a property a either duty, or but interest debt duty, or give grant or a debt or artificial. He cannot natural because, supposed, the property; it not as some is not because given permit thing in action to be through policy will not law property it thing it in action is not that is because this granted; be granted. cannot that (emphasis original). The Smith court then held

Id. at 597-98 nonpay- on the issue of not entitled to the defendant was Id. a debt owned. ment of have held that trials are Smith, North Carolina courts

Since that not constitutionally required range in a wide of civil cases do not App. McCall, 706, 531 property. See v. 138 N.C. “respect” McCall proceedings); State v. (2000) (equitable distribution S.E.2d 894 proceed- (forfeiture Morris, App. (1991) S.E.2d 351 custody (1981) (child Clark, N.C. ings); In re Carlisle, proceedings); State proceedings).

(driver’s license revocation indicates, purpose punitive damages, as its nomenclature The for, right compensation has punish. person aggrieved is to The distress, alia, pain suffering, emotional lost inter actions bills, disability, and loss of consortium. medical wages, Thus, no individ- meanwhile, properly resides with the State. punish, person’s that being as possesses ual RHYNE v. CORP. K-MART property. Dixon, App. 47, See Watson v. 130N.C. (1998), 502 S.E.2d 15 aff’d, (2000); Lynch 532 S.E.2d 175 v. North Carolina Dept. Justice, App. 57, (1989); Hunt, 93 N.C. 376 S.E.2d 247 Hunt v. of App. 323, 444, 86 N.C. aff'd, 357 S.E.2d 321 N.C. 362 S.E.2d 161 (1987). fully As contest, even the dissent this case does not leg- the power punitive islature damages. has the to abolish See Osborn v. Leach, power 135N.C. 47 (1904). punitive S.E. 811 to abolish necessarily power punish- carries with it the to limit the generally, ment. See v. Emergency Pulliam Coastal Services of Richmond, Inc., 509 (Va. 1999);Bagley Shortt, S.E.2d 314 v. 410 (Ga. 1991). S.E.2d 738 reject

Accordingly, plaintiffs’ punitive we contention that dam- ages property” are within the definitional umbrella “respecting likewise do agree analysis require- not with the dissent’s that such a ment has been abolished. Separation

B. of Powers provides The North Carolina Constitution that legislative, “[t]he executive, supreme judicial powers government of the State shall separate be forever and distinct from each other.” N.C. Const. Art. argue 6.§ Plaintiffs section ID-25is unconstitutional in that it violates principle separation powers by power the exercising the remittitur. procedural process by

Remittitur is an which excessive “[t]he Dictionary verdict of the is reduced.” Black’s Law (6th 1295 1990). judicial process. ed. It However, is cap and remittitur are not the same. Pulliam v. Coastal Emer- gency Richmond, Inc., Virginia Services the Court held that: malpractice damages] cap

remittitur and the are not [medical equivalent play and do not come into under the same circum- Remittitur, only additur, stances. as well as is utilized after a party court has determined that a has not received a fair and proper jury cap, however, applied only plain- trial. The is after a proper tiff has had the trial. benefit of Pulliam, (1999). Likewise, 257 Va. 509 S.E.2d the statutes North Carolina indicate that remittitur and the damages cap operate differing under circumstances. While classic permitted Carolina, concept governed remittitur in North is not by Rule 59 of the North Rules of Civil Procedure in which a Carolina v.

RHYNE K-MART CORP. may inadequate excessive dam- granted new trial be or passion appearing been under the influence of ages to have awarded prejudice. 1A-1, (1999). See Stat. Rule Section 59(a)(6) N.C. Gen. § ID-25, hand, requires award to limited after a on the other be properjury (1999). trial. N.C. Gen. ID-25 See Stat.

Moreover, power aforementioned, legislature has the as entirely. Leach, v. abolish Osborn Further, power create, has (1904). legislature 47 S.E. modify, or other law remedies. See N.C. Gen. Stat. eliminate common 1-538, 1-539.21; Vines, State ex rel. Lanier v. §§ 244, 118 v. (1968); Bell, S.E.2d 161 Gillikin S.E.2d Richmond, Emergency Inc., Coastal Services See also Pulliam v. Shortt, 1999);Bagley (Ga. (Va. necessarily power has 1991). Therefore, legislature to limit punitive damages. separation actually powers

A would if we of violation occur were system adopt plaintiffs’ argument government, to here. Under our of political legislature, anathema a to a the it is court act as test winds, preferences legislative or substitute its own for those of the representatives people. of the Assembly policy public

The is General where is better debated. Assembly compromise, where the result The General is sometimes of years evolving sessions, of over numerous can occur. The discussion Assembly General is where lawmakers can consider scenarios just specific particular than the attendant a broader factors to case. authority limited, acceptance is of Our the that limitation is a public keep promotion properly we to a trust are bound the of aligned government.

If, then, composed government Legislative, a of Executive departments, by Constitution, and Judicial were established a imposed power, which limits the legislative no on the conse- inevitably be, power quence legislative would whatever that the lawfully enacted, judicial power enact, chose to would be and the interpose pronounce true, void. that could never it is It is some jurists speculative held, legislative against have that a act natural justice itself, that, I must, void; be but cannot think under such any possess power government, Court of would Justice If, hand, Legislature declare it . . . on the other the of the so. pass union, Union, shall Legislature or the member the power, law, scope within their general constitutional APPEALS OF IN THE COURT RHYNE v. K-MART CORP. merely is, void, because it pronounce it to be

Court cannot justice. principles natural contrary judgment, their J., concurring (1798) (Iredell, 1 L. Ed. 648 Bull, 3 U.S. Calder v. experi Assembly Further, has result). the General in the except prevented evils, as dealing with old with new modes of ment Housing Corp., Martin v. North Carolina by the Constitution. See restraint, (1970). Absent constitutional 175 S.E.2d 665 41, 175 Id. at policy questions legislative are for determination. public at 671. S.E.2d and deter- judicial duty to a statute

However, there is a examine presented. constitutionality properly State when the issue is mine its doing so, App. 670, S.E.2d 119 Arnold, 147 N.C. constitutionally and until the con- presumed valid unless statute 168, 175, 166 Anderson, 275 N.C. trary (citing State v. is shown. Id. contrary shown and we Here, has not been (1969)). S.E.2d principle reject section ID-25 violates plaintiffs’ contention that separation powers. Open C. Courts Guarantee pro provision Carolina Constitution open of the North The courts every injury open; person for an done shall be vides that courts “[a]ll remedy by person, reputation shall have lands, goods, or him in his justice administered without law; shall be course of due “remedy by due delay.” denial, N.C. Const. Art. favor, adequate “proper and as a clause has been described course of law” App. 589, Barmag Corp., N.C. remedy.” Bolick v. American modified, (1981), S.E.2d . . . of deterrence that “the function Supreme Court has held Our allows him to absorb of the defendant if the wealth will not be served Dixon, Watson with little or no discomfort.” the award omitted). Plaintiffs (citations by meaningless provision offering a violates this section ID-25 claim remedy. our Leach, (1904), 47 S.E. 811 135N.C.

In Osborn v. punitive damages in an action eliminating that a statute Court held open guarantee courts under the not unconstitutional libel was recovery damages. The Osborn of actual limit the because it did not plaintiff has say damages are those “as actual went on to court business, trade, profession or respect property, to his suffered RHYNE v. K-MART CORP. occupation.” explained Id. at 634. The Osborn court that “[t]he is, therefore, property. to have assessed not compensatory to recover actual or damages property." Id. at (emphasis original). case, In the instant actual damages Accordingly, were not limited. reject plaintiffs’ argument we that open section ID-25 violates the guarantee. courts

D. Special Legislation requirements Plaintiffs contend section ID-25 violates two of the North involving special Carolina Constitution legislation.

First, they provision state it violates the that the “General Assembly any local, private, shall not special enact or act or resolu- fines, .... [Remitting penalties, forfeitures, tion refunding or moneys paid legally public treasury[.]” into the (sic) N.C. Art. Const. II, 24, cl.(l)(i). aforementioned, § As we have held that the cap does not constitute remittitur.

Second, they provision assert the statute violates the that “[n]o person persons or set of separate is entitled to exclusive or emolu- privileges community ments or from the pub- but in consideration of I, However, lic services.” N.C. Const. Art. 32.§ cap equally applies to all defendants. Plaintiffs have not shown that the statute creates a groups. infra, distinction between See Section I.E.

Consequently, reject plaintiffs’ we assertion that section ID-25 special legislation constitutes or that it violates either of these con- provisions. stitutional Equal

E. Due Process and Protection provides The North Carolina Constitution that: person taken, imprisoned, No shall be or disseized his free- hold, privileges, outlawed, exiled, liberties or or or or in deprived life, liberty, manner property, by of his but the law of person equal protection the land. No shall be denied the of the laws; any person subjected nor shall be to discrimination race, color, State because religion, or national origin. N.C. Const. Art. 19. Plaintiffs contend cap: (1) property a taking just compen- constitutes without sation, infringing on a right; similarly fundamental and treats sit- APPEALS

IN THE COURT OF v. K-MART CORP. RHYNE persons differently compelling without reason or rational uated justification. award is the fruit of their argue

Plaintiffs the Nevertheless, property. we have held labor and a form of therefore belonging an individ- punitive damages property not constitute do puni- taking property placing cap a on Thus, ual. there be no can enjoy infringement right to the fruits of tive and no of the jury there is no one’s own labor. Wenote constitutional we held I.A. damages, as Section involved and the statute Because there is no fundamental classifications, suspect section ID-25 should be makes no mention of review, the subjected to a basis review. In a rational basis rational no rela party challenging a statute must show that it bears rational Department tionship legitimate government interest. Transp. Rowe, (2001), denied, v. S.E.2d 203 cert. U.S. -, L. (2002). 151 Ed. 2d 972 complain similarly treats situated

Plaintiffs that section ID-25 jury damage who include a plaintiffs receive verdicts that They justification award, differently. argue it without rational does so by enabling the full of the verdict some to receive measure arbitrarily only an amount that is less than others to receive derived relationship assert is no rational the award. Plaintiffs that there no legitimate and a interest because there is between statute state punitive damages crisis in North Carolina. question process degree due is a

Whether statute violates Tarble, (1984). 323 S.E.2d 19 reasonableness. Lowe reasonably legislature Court has held that if the could Our relationship was a between have concluded that there rational cap in its eco- punitive damages legitimate State’s interest ends in the State’s development, the rational basis review nomic 19, 22 Tarble, favor. See Lowe v. here, have concluded that the Likewise, legislature could public purpose of legitimate ID-25 was for the enactment of section development North furthering preserving economic Carolina. question if is at least See prevail debatable.

Plaintiffs cannot question Circuit, the Here, it is at debatable. For the Fourth least id. actually held that resolved when court was purpose— relationship proper governmental cap a rational bore RHYNE v. K-MART CORP. App. (2002)] N.C. [149 jury’s punitive to limit the punish awards to those that and prevent deter and to economy. awards that would burden the state’s Applied Technologies Wackenhut Sygnetron Center Inc. v Protection Systems, Inc., (4th 1992). 979 F.2d 980 Cir. Va.

Additionally, requirement there is no legislature only that the be reactive. present There does not have to be a in crisis North Carolina or even the United States. reasonable, Whenever it would be legislature may, should, proactive. and be process component

Due is a critical of our constitutional founda- tion. It an protection, is essential carefully one which should be and precisely applied through rather than devalued random use as a resid- depository. process ual Due only is not an endless drama encumbered by the limits of our imagination. collective carry

Plaintiffs cannot their burden showing the statute bears relationship no rational legitimate government interest, and we reject argument. their Vagueness

F. Plaintiffs contend section unconstitutionally ID-25 is vague judge because was unable to determine how it should be applied. unconstitutionally

A statute vague when: intelligence necessarily “men of common must guess at [the meaning application.” and differ as to . its . . Even statute’s] so, impossible statutory clarity required by standards of are not the constitution. When the language provides of a statute adequate warning prescribes as to the conduct it condemns and sufficiently juries boundaries judges interpret distinct for uniformly, requirements fully administer it constitutional are met. Burrus, Re (1969),

aff’d, Pennsylvania, McKeiver v. 403 U.S. L. Ed. 2d 647 (1971) (citations omitted). “The statute light must be examined in case, circumstances each challenging the statute [the the burden of showing provides either that the statute inade- has] quate warning as to the conduct governs incapable it or is of uniform judicial Covington, administration.” State App. 457, v. 34 N.C. (1977), S.E.2d 794 denied, disc. rev. 241 S.E.2d 519

IN THE APPEALS COURT OF

RHYNE v. K-MART CORP. “Impossible clarity required standards of are not the constitu- Lowe, Long tion.” 312 N.C. at S.E.2d at 21. In Tetterton Mfg. Co., Inc., 332 S.E.2d 67 our Court (1985), vague simply held that a statute was not because it could be inter- preted ways. meaning three different The true of the statute can be deciphered statutory construction, employ using rules of which we infra, the next section. II. See Section otherwise, many, most,

To reason if not of the statutes which subject analysis become to our would be unconstitutional. Few arrive interpretations. at all agree this Court when on their carefully examining language ID-25, After in light section case, provides of the facts of the instant we conclude that the statute judicial language sufficient for uniform administration. We therefore reject plaintiffs’ argument. final constitutional Application

II. Damages Cap The of the Punitive ^[2] Wenow turn to the statutory interpretation of section ID-25. The plaintiff $250,000. argues trial court awarded each K-Mart the dam cap per ages should be defendant. Plaintiffs contend the damages cap per should be claim. statutory interpretation,

In resolving issues of we look first to the language Corp. Carter, 27, of the statute itself. Sara Lee 351 N.C. 308, reh’g denied, 191, (1999). 519 S.E.2d 351 N.C. 541 S.E.2d 716 statutory meaning language exists, Where doubt as to the of the our judicial will courts then resort construction. Richardson v. App. 844, Enterprises, McCracken 126 N.C. aff'd, matters, (1997), (1998). 496 S.E.2d 380 these legis task of the Court is to ascertain and adhere to the intent of the Brooks, Grading Co., Inc., lature. Comr. Labor v. McWhirter (1981). legislative To ascertain intent cap, presume regard legislature with to the we that the acted with full knowledge prior existing law and its construction Trading Co., courts. Lumber Co. v. Raeford Rockfish (1913). 79 S.E. 628-29 provides: Again, section ID-25 seeking punitive damages, In all an award of

(a) actions punitive dam- the trier of fact shall determine the amount of separately compensation from amount for all other ages damages.

RHYNE v. K-MART CORP. (b) damages Punitive awarded against a defendant shall not exceed three compensatory times the amount of damages or two fifty hundred thousand dollars ($250,000), greater. whichever is If a trier of fact returns a verdict in excess of specified the maximum subsection, amount under this the trial punitive court shall reduce the award judgment and enter damages in the maximum amount.

(c) provisions (b) subsection of this section shall not be made known to the trier of fact through means, including dire, voir evidence, introduction into argument, or instruc- jury. tions to the By

N.C. Gen. cap Stat. ID-25 analysis, § our textual we hold the applied per plaintiff. should be lD-25(b)

Section limits to no than more three compensatory times the damages awarded $250,000, whichever is greater. N.C. Gen. lD-25(b). Stat. All compensatory awarded to a must therefore be totaled to one number for con- cap. Here, sideration of the $8,255 Rhyne it was $10,730 for Mr. and Rhyne. for Mrs. Because each was far less than $250,000, one-third of appropriate cap $250,000. was If compensatory, award had been one Rhyne, million dollars Mr. however, for and if there had been subject three plaintiffs’ claims damages, argument would cap have resulted in being product of three times com- pensatory damages times the three claims. That result would allow duplicate credit compensatory for one award, clearly a result which require would re-writing of section ID-25. The statute further states that all seeking actions an award “[i]n damages, the trier of fact shall determine the amount of

punitive damages separately from compensation the amount of for all damages.” other phrases N.C. Gen. Stat. lD-25(a). § The “an award” “the amount of damages” speak single both award plaintiff. for each compensatory As to damages, “the amount of com- pensation for all damages” clearly speaks other of one amount for the combination of damages. those otherwise, Were it the General Assembly easily could plural have made the terms “the amount” and “an award.” not, It did we are therefore bound the text of the statute.

To for'punitive receive a verdict damages, party prove must one specified or more aggravating factors. See N.C. Gen. Stat. § ID-35 APPEALS THE COURT OF

IN CORP. RHYNE v. K MART factors when of those uses the full combination then (1999). To be consistent the award. or amount as arriving at one number compensatory statutory cap, there is one total determining punitive damages. number for applied to one damages to be malpractice which statute Virginia West medical K-Mart cites a W. Va. cap punitive damages. See million dollar provides a one Area Med. v. Charleston (2000). Ann. Robinson Code 55-7B-8 Virginia 1991), the West Ctr., Inc., (W.Va. S.E.2d per applied on a and should be cap was constitutional Court held the phrased in terms of the statute was basis because defendant adopt However, we decline defendant, plaintiff. Id. at 888. not the the text it is consistent with we do not believe that rationale because determined and what our courts have of our statute represent. punish wrongdoers punitive damages is to purpose “The extreme, outrageous, or malicious aggravated, an for misconduct of Robertson, App. 121, 370 S.E.2d 91 N.C. character.” Nance v. “The denied, (1988). S.E.2d 865 rev. injuries. personal compensate plaintiff purpose ... is not to punish the defendant’s Instead, [punitive damages] are awarded to App. 638, 643, 301 S.E.2d Turner, 61 N.C. Kuykendall v. conduct.” Damages 4-1§ N.C. Law Hightower, E. (1983) (citing (1981)). puni- joined parties to divide a require suggestion would

K-Mart’s subject cap. courts have to the Our award that was tive facil- parties join in lawsuits to better consolidate encouraged (1993); Anderson, Bockweg itate cases. (1976);Smith v. App. 67, 226 S.E.2d 387 Cottingham, 30 N.C. State v. proposal K-Mart’s Pate, not take the joining. Plaintiffs would discourage parties from would by any diluted, not be possible recoveries would that their chance solely was more than one claims, because there in their but defect plaintiff. injured by wrong- K-Mart’s bar, plaintiffs were at both

In the case punitive damages in the amount Consequently, K-Martowes doing. Rhyne $250,000to $250,000 Mr. plaintiff, totaling $250,000per Rhyne. Mrs.

[3] We must now determine if modified award is excessive. or in- may issue due granted be “[e]xcessive A new trial IN THE COURT OF APPEALS RHYNE v. K-MART CORP. adequate damages appearing given to have been under the in- passion prejudice.” fluence of 1A-1, N.C. Gen. Stat. 59(a)(6) Rule America, Gore, In BMW North Inc. v. 517 U.S. (1996), L. Ed. 2d 809 the United States Court held that a $2,000,000 award of grossly light was excessive in reprehensibility aof low level of of conduct and 500 1to ratio between the award and the actual harm to the victim. When an award “grossly excessive,” process it violates the due clause of the Fourteenth Amendment. Id. at 568. The Court stated that:

Perhaps important the most indicium of the reasonableness punitive of a damages degree reprehensibility award is the nearly years the defendant’s conduct. As the Court stated ago, exemplary imposed damages on a defendant should reflect enormity principle accepted “the of his offense.” This reflects the wrongs blameworthy view that some are more Thus, than others. we have said that “nonviolent crimes are less serious than crimes by Similarly, “trickery marked violence or the threat of violence.” deceit,” reprehensible negligence. are more than . . . perhaps commonly The second and most cited indicium of an unreasonable or excessive damages award is its ratio to plaintiff. harm principle the actual inflicted on the that exem- plary damages relationship” must bear a compen- “reasonable satory damages long pedigree. consistently has a . . . have [W]e rejected the notion that the constitutional line is marked simple formula, compares mathematical even one that actual and potential damages Indeed, to the award. low awards of compensatory may properly support higher ratio than high compensatory awards, if, particularly example, egre- only gious act has resulted in a small amount of economic dam- may justified A ages. higher ratio be also cases in which the injury monetary is hard to detect or the value noneconomic might appropri- harm have been difficult to determine. It is ate, therefore, rejection to reiterate our a categorical approach. . . . Comparing award and the penalties civil or imposed comparable criminal that could be provides . . misconduct a third indicium of excessiveness. . reviewing engaged determining court whether an [A] punitive award of is excessive should “accord ‘substan- 689

IN THE COURT OF APPEALS RHYNE v. K-MART CORP. 672 N.C. judgments concerning appropriate legislative

tial deference’ sanctions for the conduct at issue.” (footnotes omitted). at 576-83 and citations

Id. case, is In the the ratio of actual harm to award instant Rhyne Rhyne. Mr. 1 Mrs. We approximately to 1 for and to for Hoyle note that the actions of and were violent. Roberts also Roberts Rhyne put Mr. in a for several minutes. attacked and him chokehold pushed Hoyle kept Rhyne helping from her her to Mrs. husband Further, keep plaintiffs taking out criminal ground. from against it, plaintiffs trespassing K-Mart and insti- charges accused Rhyne. against Mr. Plaintiffs suffered both charges tuted assault problems Rhyne physical psychological as a and Mrs. now result arguably permanent heart condition that is traceable to the inci- has reprehensible light (1) at issue. Wethus hold that in of: K-Mart’s dent conduct, (2) mere the rela- negligence; which constituted more than tively awards ratio; (3) given legislature, low deference BMW grossly are not excessive under the factors. Attorney

III. Fees ^[4] Finally, plaintiffs argue the trial court erred by refusing to award attorney pursuant disagree. fees to N.C. Gen. Stat. ID-45. We § provides, pertinent part, court shall

Section ID-45 “[t]he attorney who asserts a against award reasonable fees defendant or in a claim that the defendant knows defense N.C. Stat. have known to be frivolous or malicious.” Gen. should repre purpose providing legal the costs of ID-45 “The professional peer limiting the encourage review sentation expenses.” Virmani v. litigation of unreasonable possibility Corp., App. 71, S.E.2d Presbyterian Health Services (citing denied, 492 S.E.2d 38 Smith 284, rev. 1994), denied, 514 U.S. Ricks, (9th 31 F.3d Cir. cert. (1995)). L. Ed. 2d 287 present proponent if no rational A defense is frivolous “a can support Black’s upon or law in argument based evidence [it].” if it is (6th 1990). ed. A defense is malicious Dictionary 668 Law intentionally just or as without cause excuse “wrongful and done Dictionary (6th 1990). ed. ill will.” Black’s a result of Law acts or Here, plaintiffs engaged K-Mart in malicious discuss how K-Mart’s corporation, fail to establish how practices as but defense RHYNE v. K-MART CORP. App. (2002)] N.C. [149 may have been malicious or “An frivolous. abuse of discretion occurs arbitrary ruling when the trial court’s ‘isso that it could not have been ” the result a Country Club, reasoned decision.’ Chicora Inc. v. Erwin, App. 101, 109, Town 128 N.C. (1997), 493 S.E.2d denied, disc. rev. (1998) (quoting N.C. 500 S.E.2d 84 White v. White, 770, 777, (1985)). No such abuse has been shown under reject these circumstances and we therefore plaintiffs’ argument.

IV. New Trial ^[5] K-Mart argues that it is entitled to a new trial because the allowing plaintiffs court erred in to introduce evidence of its dis covery disagree. misconduct. We

Throughout testimony question, in defense counsel never specifically objected to the inclusion demonstrating of evidence discovery K-Mart’s during misconduct grounds argued. on the now object Defense counsel did question several times to the form of a discovery regarding phrases question misconduct and to certain in a such as provide,” “conceal,” “refused to and “did not disclose.”

It is a long-standing may rule that a in a civil case not raise appeal an issue on that was not raised at the trial level. See N.C.R. App. P. 10(b)(1); Lowery, App. Hieb v. (1995), aff'd, S.E.2d 323 K-Martdid not

raise this Only issue before the trial court. assignment as an of error in the record and anas issue in defendants’ brief did the contention Accordingly, materialize. assignment properly this of error is not proceed before us and we decline to with its determination.

V. Conclusion conclusion, we hold that: (1) constitutional; section ID-25 is (2) applied section per plaintiff ID-25 should be basis; (3) trial court did not abuse disallowing attorney fees; its discretion in K-Martis not entitled to a new trial.

AFFIRMED.

Judge HUNTERconcurs.

Judge part GREENE part. concurs in in dissents APPEALS

IN THE COURT OF v. K-MART CORP. RHYNE part. part dissenting GREENE,Judge, concurring IV respect issues III and majority opinion with I concur in the my the constitutional- separately regarding to voice dissent but write ity lD-25(b). of N.C. Gen. Stat. a constitution- dispositive (I)(A) are whether: there is issues

ally protected trial on the issue of right to prosecution, negli- malicious imprisonment, false tort actions for distress; so, (B) if of emotional and/or intentional infliction gence impermissibly imposed punitive damages legislatively limitation imposed lim- jury trial; legislatively (II) a infringes right on this to process clause of article punitive damages violates the due itation on jury Constitution; (III) I, the North Carolina section 19 of per plaintiff $11.5 is excessive million in award of process clause of the U.S. Constitution. under the due

I A Damages Jury Punitive Right to Trial on Constitutional I, section 25 provides in article The North Carolina Constitution property, ancient respecting law all controversies at that “[i]n by jury rights of the of is one of the best securities mode of trial Const, I, art. inviolable.” N.C. people, remain sacred and and shall is a con- provision, courts have held there construing this our 25. only a of action jury involving in cases cause right to a trial stitutional adoption of the of remedy) recognized at the time (including a existed, either at and where there Carolina Constitution1 1868North jury in trial such time, right at that to law or statute common 507, 487, 490 Kiser, 502, 385 S.E.2d v. 325 N.C. instances. Kiser 568, (1921). Ware, 553, 558, 109 S.E. 571 v. 182 N.C. (1989); Groves employed have Supreme Court cases acknowledge I some of our of article respecting property” language ... the “in all controversies jury right to a suggests manner that the constitutional 25 in a section “property.” See Belk’s involving depends existence of a claim on the 447, 897, 23 S.E.2d County, N.C. Dep’t Store, Inc. v. Guilford not affect purposes “does for taxation (valuation of land (1943) (1825) Campbell, 10N.C. v. any property”); in the Smith right reference to the have made property). Some recent cases is not (debt See John adopted April V. in 1868. Constitution was The 1868 North Carolina 1. (1993). State Constitution Orth, The North Carolina RHYNE v. K-MART CORP. “property” an determining party’s jury test as element in right to a utilizing trial without Simpson, it. See State v. 517-18, 325 N.C. 385 S.E.2d 331-32 I have not found case since 1943in appellate which our courts have determined a was or was not jury entitled to a trial on the basis the claim “respect[] did or did not property.” appears In several instances where it obvious the claims property,” were “respecting the court See, did not reach the issue. e.g., Kiser, 507-08, 325 N.C. at (analysis 385 S.E.2d at 490 right to jury equitable in trial proceeding); Kaperonis distribution Highway Comm’n, 587, 595-96, 133S.E.2d 470-71 (analysis jury right to trial in proceeding). condemnation Furthermore, in obviously cases where the claim did not involve a property question, appellate only question court discussed prior whether the claim April See, was existence e.g., In re Clark, (1981) (analysis right jury parental termination rights proceeding); Taylor, In re App. 642, 643-44, (1975) (analysis right jury trial mental health proceeding). Thus, commitment the “in all property” . . . respecting controversies language giving rise to the right trial has single evolved into the test of whether this right prior April existed 1868. To hold otherwise would eradicate the constitutional ato trial in those actions where the prior recognized April simply was to 1868 because the cause of action property is found not to involve a interest.2 may, course, It of be property” the case that the “respecting prong has remained in along required effect all but no considera tion because our phrase courts have construed the “in all controver property” sies . . . respecting liberally so as to “include all the old forms of McIntosh, action at common law.” 2 North Carolina Practice and (2d Procedure at 3 1956) (“the term, § ed. ‘in all respecting property,’ controversies . . . would seem to include all the old forms of action at common law”); Kiser, see also 325 N.C. at 505 n.1, (“all 385 S.E.2d at 488 n.1 issues of fact in causes of action exist ing society’s would be entitled to be tried jury”). Our [in 1868] property of has greatly evolved since our Court ren .notion dered in Campbell its decision Smith v. in major 1825 on which the ity relies. See Campbell, Smith v. 10N.C. instance, 595 For expressed idea property in Smith necessarily “that must mean do way minion over things given expanded to more view.” ha[s] Thus, accept if the courts were to a limited definition “in all controver- respecting property,” legislature could, . . example, adopt sies . a statute elimi- nating'the jury right negligence to trials in all and breach of contract actions.

RHYNE v. K-MART CORP. Property Valuation and Distribution 18.02[1], Marital at 18-8 (2002) to 18-9 Distribution]; Smith, Valuation and [hereinafter Property N.C. at 597. has since been regarded rights, as “a bundle of things, pertaining any not over but valuable interest.” Valuation Apparently, property heavily Distribution at 18-9. what is “bears upon sociological climate of the times.” Id. at 18-12.

Thus, today, plaintiffs’ claims, including prayer tort their “property” would be considered within the mean- ing they injuries article section 25 as person. derive from to the “ injury ‘Where an injured has occurred for which the has a ” action, cause property such cause of right.’ action is a vested Wedgewood Corp., Lamb v. 419, 442, S. 308 N.C.

(1983) (quoting Gravity Drainage Burmaster v. Dist. No. 366 So. (La. 1978)). Furthermore, “every 2d 1381 property because man has a in person,” Locke, his own John Second Treatise Government 17 (T. ed., injury person Peardon 1952), injury property to a and the constitutionally protected right jury to a trial attaches.

The claim for intentional infliction of emotional distress was not recognized in this Stanback, State until see Stanback v. 297 N.C. 621-22 (1979), and thus Plaintiffs have no right jury constitutional to a trial on this claim. Claims for false imprisonment, prosecution, malicious negligence, however, were prior in April existence Arrington Wilmington 1868. See v. & Co., WeldonR.R. (1858) 51 N.C. 68 (negligence); Bradley Morris, v. (1853) (malicious N.C. 395 prosecution); Sawyer Jarvis, (false imprisonment). Prior to to have a

assess damages also existed for each of these claims. See Bradley, 397; Sawyer, 181; N.C. at 35 N.C. at see also Gilreath v. Allen, (1849) (punitive permitted any tort upon showing action aggravation”). Thus, “circumstances of a con party’s stitutional trial exists this State on a claim for damages arising recognized from tort in North Carolina prior April genuine 1868 which there are showing issues of fact “aggravating factors” as outlined in N.C. Gen. Stat. 1D-I5(a).3 § According law, jury right hinges 3. to our case to a trial on the existence of aggravating Gilreath, aggravating circumstances. See 32 N.C. at 69. If there are no cir- cumstances, right jury there is no to a trial. Who then determines whether there are aggravating jury determination, circumstances? If we allow the to make this the result grant jury every allegations aggravating is the of a trial in instance where there are unacceptable process circumstances. This would be an and not consistent with article I, Thus, preliminary showing by section 25. there must be some the claimant of the aggravating upon existence of some circumstance. This can be satisfied a trial court’s

694 v.

RHYNE K-MART CORP. App. 672 Consequently, reject I argument legislative K-Mart’s that a limita punitive damages province tion on awards is within the sole of the implicate legislature party’s right jury and does not ato trial under I, may legislature puni article section 25. It be that the can eliminate remedy damages Leach, tive as a in North Carolina. See Osborn v. 628, (1904) (upholding legislative puni S.E. 811 elimination of tive damages aggravating libel cases where no circumstances exist).4 question, however, The answer to that is more involved than majority suggests meaning I, and lies within the of article section 18 of (open the North Carolina Constitution courts provision), see id. 631, 812, I, at 47 S.E.2d at (law pro and article section 19 of the land vision), Tarble, 460, 461, see Lowe v. 313 N.C. 329 S.E.2d (1985) (due process prohibits arbitrary legislation), clause not article I, permits If legislature section 25. an award damages, necessarily the article section 25 trial attaches and any limitation on damages the amount of rests with the and the Worthy Shields, court.5 See v. 90 N.C. (1884) (“jury ver disregarded”). dict cannot be To hold otherwise would constitute an impermissible jury’s interference with the absolute to determine plaintiff’s entitlement to damages and the amount of those damages.

B Infringement Right Jury Constitutional Trial rights explicitly Fundamental include implicitly those either or guaranteed constitution, the state or federal see Comer v. Ammons, App. 531, 539, 135 N.C. (1999); Buck, In re genuine question aggravation. determination that there are issues of fact on the Cf. 1A-1, (1999) (rule summary judgment). N.C.G.S. Rule 56 essence, legislative punitive damages 4. In elimination of for certain libel upheld merely law, cases as Osborn constituted a codification of the common which permitted punitive only aggravating where circumstances existed. See Gilreath, (punitive permitted upon showing 32 N.C. at 69 tort action aggravation”). “circumstances of Any currently case-by-case abuse in awards is addressed on a provided law, Worthington Bynum, 478, 491, basis as for at common see 305 N.C. (1982) (Britt, J., may dissenting) (trial S.E.2d court award new trial if given passion prejudice”); Tate, are “under the influence of Carawan v. (1981) (trial court has discretion to “reduce” dam ages “excessively disproportionate contumely award if it is to the circumstances of indignity present case”), affirmed, in the 286 S.E.2d 99 modified (1982), law, America, Gore, and under federal constitutional BMW see North Inc. v. 559, 562, 134 (1996) (Due prohibits impo 517 U.S. L. Ed. 2d Process Clause “grossly punishment against tortfeasor). sition of a excessive” APPEALS 695

IN THE COURT OF RHYNE v. K-MART CORP. App. (2002)] N.C. 672

[149 626, right 621, 858, (1999) (“fundamental N.C. S.E.2d 861 350 516 by by Constitution”), or those that are jury guaranteed ... is our trial Tolley, deeply people, in the v. 290 N.C. traditions of our State rooted jury puni 349, 364, 353, right As the to a trial on (1976). 226 S.E.2d 365 Const, constitution, guaranteed is state see N.C. tive our firmly people, see, of I, 25, and is rooted in the traditions our § art. 397, trial on dam e.g., Bradley, right 44 at the this is not ages right. is a fundamental Because fundamental upon a that is “nar absolute, it can be invaded enactment of statute rowly Flores, state v. compelling tailored to serve a interest.” Reno 292, 302, (1993); Department L. Ed. see U.S. 2d of (strict Transp. Rowe, v. 353 N.C. S.E.2d scrutiny by infringement right), cert. triggered fundamental — denied, 2d -, L. The —, -, U.S. Ed. U.S.L.W.3395 constitutionality the a that a funda party asserting statute invades constitutionality. demonstrating its mental has the burden of 207; Rowe, Peters, App. at v. 63 N.C. 549 S.E.2d at Dixon 477, 481 (1983). places case, lD-25(b), The before this Court in this Section statue a legislative limitation on amount may damages . . . lD-25(b) (1999) (“[p]unitive recover. See N.C.G.S. compensatory damages shall not exceed three times the amount fifty greater”). whichever is ($250,000), two hundred thousand dollars instances, requires court, This in some to “reduce the statute award,” plaintiffs’ right [punitive damages] id., and thus invades pro- punitive damages. K-Mart, the have assess amount of constitutionality ponent statute, this therefore has bur- of the proving compelling it state interest and den was enacted to serve Reno, narrowly so, if it was drawn to serve that interest. See that Rowe, at at 16; at 123 L. 2d at U.S. Ed. burden, argues K-Mart the statute serves the support 208. of this by “preserving promoting economic best interest of the State fostering [pub- development Carolina, well as in the State of North as system.” Admittedly, encouraging litigation confidence the civil lic] judicial public development ensuring confidence in the economic however, nothing, system legitimate state interests. There are punitive damages awards serve to show the limits on this record they are did, served com- goals or even if that interests these by Indeed, punitive damages awarded pelling.6 reduction of legislators who in the General this record from two were axe affidavits in There Assembly adopted. legislators chapter affirm was no time ID was “[t]here at the IN THE COURT OF APPEALS RHYNE K MART CORP. jury public after in extensive deliberations could erode confidence judicial system. Accordingly, punitive damages our the limitation on awards, lD-25(b), as set forth in section is unconstitutional with respect recognized prior to claims that were in North Carolina to April jury 1868 where there also existed a to have a assess punitive damages. lD-25(b) attempt As section does not to distin guish party between those occasions where a has a constitutional punitive a to trial on the determination of where there is no such right, the statute is overbroad and thus Hines, App. 545, 552, unconstitutional. See State v. 109, 114 (1996) (“a sweeps S.E.2d law is void on its if it face within its solely activity subject governmental control, ambit not that is but prohibition, practice protected also includes within its of a right”). constitutional

II Substantive Due Process The law of the land pro- clause of the North Carolina Constitution I, person in vides article section 19 that shall ... be man- “[n]o deprived life, liberty, by ner property, his or but the law of the Const, I, “Any by police land.” N.C. art. exercise the State of its power deprivation liberty.” ... a Hospital, is In re Every deprivation 735 (1972). liberty, however, person’s process does not constitute a violation of a substantive due rights granted I, only under article A section 19. violation occurs if the “ real, does rational, statute not have ‘a or substantial relation to the ” public health, morals, order, safety, general or the welfare.’ Id. at (citation omitted). words, 193 S.E.2d at 735 In other the statute “reasonably necessary promote must be accomplishment of a public good, prevent public or to the infliction of harm.” Id. This process right public’s substantive due guarantee against is the arbi- trary legislation. Lowe, 313 N.C. at 329 S.E.2d at 650. lD-25(b), places

Section which a punitive limit on the amount of person may recover, question a is without an exercise of the police power. deprivation State’s But the statute also constitutes a liberty in that it right, recognized law, denies at common have determine the amount of damages. Meyer See v. Nebraska, L. U.S. 67 Ed. (defining lib- erty privileges to include “those long recognized at common law as during meetings evidence introduced either the committee or on the floor about exces- sive awards or the number of awards in North Carolina.” OF APPEALS IN THE COURT RHYNE K-MART CORP. by orderly pursuit happiness men”). free

essential to the against an article lD-25(b) section can be sustained Accordingly, only if it has rational or substantial relation- 19 attack some section ship of this State. general to the welfare by State served this general welfare of the

K-Martcontends preserves development and it fosters and economic statute because system.” litigation in the civil As encourages “[public] confidence opinion, nothing K-Mart has offered 1(B) of this noted section purposes. general these lD-25(b) section serves either of show that Plaintiffs, authority low hand, produced on the inci- on the other have stability awards North general dence and provided legislators further affidavits two Carolina. Plaintiffs punitive damages of crisis revealing had been no evidence a there Assembly adopted at it presented the the time section to General is, thus, lD-25(b). There no “substantial relation” between section re lD-25(b) purposes the its enactment. See In and asserted 551, Accordingly, at Hospital, N.C. at 735. section 282 19 the North Carolina lD-25(b) violates article section of arbitrarily a the full and un- because it denies Constitution punitive of right to have a determine the amount conditional damages.

Ill Damages Award Excessiveness Punitive of lD-25(b) if Court were to hold section K-Mart contends that this damages would, unconstitutional, punitive award consistent be the Clause, and a new Process have to be vacated with the federal Due the award reduced. trial ordered or found the Due Process Gore, United States Court the “prohibit[] a State from of the Fourteenth Amendment Clause ” “ Gore, a punishment on tortfeasor.’

imposing ‘grossly excessive” a Corp. v. (quoting TXO Prod. 562, L. Ed. 2d at 818 U.S. at 366, L. Corp., 454, 125 Ed. 2d 443, 509 U.S. Alliance Resources “grossly excessive” omitted)). Whether the award (citation (1993) punishing the interest in the context of State’s must be determined 568, misconduct. Id. at deterring any such future the tortfeasor “[e]lementary specifically The Gore noted L. Ed. 2d at 822. court jurisprudence dic- in our constitutional notions of fairness enshrined penalty severity the ... of of person fair notice tate that a receive 2d at 826. In order may impose.” Id. 134 L. Ed. a at that State (1) notice,” be considered: three factors must determine “fair IN THE OF COURT APPEALS K-MART RHYNE v. CORP. degree reprehensibility conduct, (2) of of the defendant’s ratio punitive damages poten between the done award and the harm or the occurred, tial harm that could have available sanctions comparable Appellate misconduct. Id. at 134 L. 2d at 826. Ed. apply courts in deciding should de novo standard of review whether unconstitutionally Cooper award is excessive. Group, Indus. v. Leatherman Tool 532 U.S. 149 L. Ed. 2d excessive, If 686-87 matter should be remanded to may appropriate remedy, the trial court determine an which independ include a new or a reduction of the after an award ent judge. Gore, determination the trial U.S at L. Ed. 2d at 833. degree reprehensibility

The Gore court characterized the “[p]erhaps important conduct as defendant’s the most indicium of a reasonableness award” because “ ” enormity should reflect ‘the offense.’ Id. at [the] (citation 134L. Ed. omitted). Aggravating 2d at factors associated particularly reprehensible with malice, conduct include: violence or trickery thereof, deceit, threat indifference to or reckless disre- gard safety others, statements, for the health and deliberate false misconduct, improper motive, affirmative concealment of evidence injury financially party. and even economic vulnerable Id. at 826-27, 134 L. 2d at Ed. potential The determination of the ratio between actual or plaintiff harm to and the amount of is not meant simple by as a punitive mathematical formula which are damages automatically point. deemed after a 582, excessive certain Id. at 134 “ L. Ed. 2d One at 830. must establish ‘whether there is a reasonable relationship likely between award and the harm to result from the defendant’s conduct as well the harm as that actu- ” ally TXO, 460, has at occurred.’ 509 U.S. 125L. Ed. 2d at 381 (empha- sis omitted) (quoting Haslip, 1, Mut. Ins. Co. v. 499 U.S. Pacific Life 21, 1, TXO, 113 L. 2d 22 In (1991)). Ed. the United States Court, upholding in award, the trial on court’s relied the difference punitive damages between the award and the harm the victim could have suffered if the had been defendant’s tortious conduct successful: TXO, 462, a 10 to 1 ratio. 509 U.S. at 125 L. Ed. 2d at 382. The Gore court further noted: compensatory damages may properly support awards of a

[L]ow higher awards, if, than high compensatory example, ratio a particularly egregious only a act has resulted in small amount of 699

IN THE OF APPEALS COURT v. K-MART CORP. RHYNE 672 may justified A in cases damages. higher economic ratio also be injury monetary detect or value of in which the hard to harm might have been difficult to determine. noneconomic Gore, 582, 134 517 U.S. at L. Ed. 2d at 831. analyzed purposes of focuses on

The third factor fair notice the civil or the difference between the award and imposed comparable in cases. Id. penalties criminal authorized or 583-85, 826, at L. Ed. The should reviewing 134 2d at 831. court “ legislative concern judgments ‘accord “substantial deference” to ” ing appropriate at Id. at sanctions for the conduct issue.’ Disposal, (quoting Browning-Ferris L. Ed. at v. Kelco 2d Indus. Inc., (1989) (O’Connor, J., U.S. L. Ed. 2d part part)). in In a concurring dissenting cases where greatly a fine have been damages award is in excess of that could imposed statute, may “imprisonment by such an award still stand if L. was authorized in the context.” Id. at 134 Ed. 2d also criminal Haslip, L. Ed. In 23). at 831 at 2d at consider (citing U.S. justified ing ground was whether a award misconduct, court reviewing that it serves to deter future must expected less also assess “whether drastic remedies could be Id. at L. Ed. 2d at goal.” achieve that by case, aggravating In most of listed Gore this factors reprehensibility which determine the of defendant’s conduct are unlawfully present. Rhyne had The found that Mr. been detained dangerous was a the use of a choke-hold. detainment violent disregard for showed an indifference to or reckless encounter that Hoyle safety plaintiffs. addition, Roberts and as the health and by making delib- agents engaged K-Mart in affirmative misconduct Rhyne police Mr. investigating erate false statements officers. maliciously prosecuted, goes that was have an act also found to been result, high trickery, and this case involved malice, deceit. As Gore, only with reprehensibility opposed to which dealt degree of as L. Ed. damages. See id. at 2d at 827. economic out, Rhyne $8,255.00 Mr. points K-Mart awarded As $11.5 compensatory million Rhyne $10,730.00 Mrs. but compensatory punitive damages. each in The ratio between the Rhyne 1,072:1 Mrs. 1,393:1 Mr. for damages awards is for Rhyne. ratio, potential harm though staggering this the Even 581, id. at plaintiffs have must also be considered. See could suffered 830; L. Ed. 2d at 381. TXO, L. at U.S. at Ed. 2d RHYNE v. CORP. K-MART App. N.C. testimony police According present to the of one the officers April Rhyne on 29 Mr. in scene the hold Roberts used on severely injured Rhyne’s spinal order to him have detain could Mr. cord, potentially paralyzing him. upheld jury

North Carolina courts have ranging verdicts from $60,000.00 compensatory in damages, Hussey Seawell, v. App. 172, (2000) (partial $100,000.00, paralysis), Lowery Newton, App. v. (permanent 278 S.E.2d 566 paralysis plaintiff’s arm), denied, to the left shoulder and disc. review (1981); Jackson, see also Strickland 859 (1974) (awarding $75,000.00 compensatory damages paralysis ranging plaintiff’s Thus, for hand). from shoulder to his Rhyne seriously if injured Mr. had been during detainment, his he reasonably expected could been have to receive an award $100,000.00 Rhyne’s range. case, compensatory In that Mrs. likely award higher (due would have been as well to increased emo possible tional distress and a claim of consortium). additional for loss Accepting compensatory $100,000.00 representative as potential Rhyne for the harm Mr. have suffered, could ratio of 115:1 discrepancy still remains. greater This is much than the 10:1 ratio upheld Finally, in TXO. as imposed to the issue of authorized or comparable misconduct, certainly sanctions for guided K-Mart was lD-25(b) believing any potential liability section egregiously wrongful fraud, involving malice, acts or willful or wanton conduct greater $250,000.00 would be limited to the or three times com pensatory damages against awarded K-Mart. high

While K-Mart’s reprehensibility, conduct reached a level of awarded in this case exceeded the reasonable relationship required that is between such an award and actual or potential plaintiffs, Gore, harm to see 517 U.S. at 134L. Ed. 2d at beyond and thus went what was needed to achieve the State’s goal punishment As lD-25(b) deterrence. section further promised set a damages, maximum for K-Mart did not penalty imposed have fair notice of a as severe as the one in this case. $23

I would therefore hold the award million in this to be case excessive because it transcends the constitutional limits of the federal Process I Accordingly, Due Clause. would vacate entry award and remand this matter to trial court of an remedy. appropriate at See id. 134 L. Ed. 2d at 833. OF APPEALS

IN THE COURT BD. ADJUST. OF WILMINGTON DOBO v. ZONING OP

Summary summary, lD-25(b) I both unconstitution- would hold section ally imposes it on in that the limitation overbroad trial impermissibly infringes party’s constitutional to on recog- punitive damages for of action determination of causes the of the April of article section 19 prior nized to 1868and violation the statute would neces- Invalidating North Carolina Constitution.7 $23 jury’s original the million sitate the reinstatement of however, award, under grossly As excessive damages award. this Clause, original punitive I would vacate the the federal Due Process entry this to for the award and remand case court remedy. appropriate of an OF Petitioners v. ZONING BOARD

G. WILLIAM DOBO and BARBARA B. wife, DOBO, of the OF WILMINGTON and CITY OF ADJUSTMENT WILMINGTON, CITY Respondents No. COA01-249 (Filed 2002) 16 April challenge adjustment’s Zoning— 1. constitutional —board authority to rule authority adjustment rule on not have the A board of did validity challenges zoning of a petitioner’s to the constitutional A pursuant 160A-388(e). appeal in an N.C.G.S. § ordinance only capacity quasi-judicial and has adjustment in a board sits only case, authority by statute; in the board had granted this modify offi- authority reverse, affirm, or the enforcement recent, sub- a sawmill next to a exclusive determination that cer’s Moreover, superior had court division violated the ordinance. deter- only of whether the statutory power review the issue to the properly challenges was affirmed. Constitutional mination adjudicated may appropriately validity of ordinance be superior instituted court. separate of a civil action means area Zoning— use —residential 2. sawmill —noncommercial material, evidence in and substantial competent, was There that, under the support board’s conclusion zoning record to lD-25(b) as the Accordingly, not section I do address the proper application majority II of does in section its opinion.

Case Details

Case Name: Rhyne v. K-Mart Corp.

Court Name: Court of Appeals of North Carolina

Date Published: Apr 16, 2002

Citation: 562 S.E.2d 82

Docket Number: COA00-1516

Court Abbreviation: N.C. Ct. App.