Thompson v. Town & Country Construction Co.

CLARK, Judge. Since it is apparent that the trial judge denied defendant’s motion for directed verdict in anticipation of withdrawing a juror and declaring a mistrial, we will first determine whether the order declaring a mistrial is appealable. An order declaring a mistrial is appealable only if the trial judge has abused his discretion. See, Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19 (1957). A judge may withdraw a juror and declare a mistrial when “necessary to prevent the defeat of justice or in the furtherance of justice. . . .” 76 Am. Jur. 2d, Trial, § 1073; 2 McIntosh, N.C. Practice & Procedure, § 1548 (1956). State v. Tyson, 138 N.C. 627, 50 S.E. 456 (1905). The trial judge is “clothed with this power because of his learning and integrity, . . . [T]he law intends that the Judge will exercise it to further the ends of justice, . . .” Moore v. Edmiston, 70 N.C. 470, 481 (1874). There are no North Carolina cases which hold that a mistrial may be ordered “to further the ends of justice” when a litigant has failed to present competent evidence because he was not represented by counsel. However, the North Carolina Supreme Court has indicated what standards should be applied in ordering a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(2) “upon [242] finding that justice so requires.” King v. Lee, 279 N.C. 100, 106, 181 S.E. 2d 400, 404 (1971). That Rule provides: “By Order of Judge. —Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff’s instance save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. . . .” Rule 41(a)(2) is designed “to take care of the hardship case where, for quite legitimate reasons, the plaintiff is unable to press his claim.” Official Comment, G.S. 1A-1, Rule 41(a)(2). In King v. Lee, supra, petitioners’ counsel proceeded at trial under a misapprehension of the applicable law. The North Carolina Supreme Court indicated that on remand the trial judge could order a voluntary dismissal pursuant to Rule 41(a)(2), if a judgment adverse to petitioners would “defeat justice.” 279 N.C. at 107, 181 S.E. 2d at 404. The court noted that in determining whether or not to order a dismissal, the trial court should consider the likelihood that the petitioners could present evidence entitling him to relief. The judge is clothed with the power to declare a mistrial for the same reason that he is empowered to order a voluntary dismissal. It follows that the standards governing the granting of Rule 41(a)(2) dismissals should also be applied in ascertaining whether a judge was warranted in declaring a mistrial “to further the ends of justice.” In the case sub judice, the plaintiffs offered evidence tending to show the results of construction defects without describing the defects which would show that the house was constructed in an unworkmanlike manner, and though in their complaint they prayed for damages, they offered no evidence of money damage, both testifying that they did not want money but only wanted the defects repaired. The evidence offered was sufficient to show that the plaintiffs may have a valid claim which could be effectively presented to the court with the assistance of competent counsel. Applying the standards set forth by the Supreme Court in King, it is clear that the trial judge did not abuse his discretion in declaring a mistrial. [243] Since the trial judge was warranted in ordering the mistrial, we do not deem it necessary to consider defendant’s contention that the directed verdict was improvidently denied. Affirmed. Judges Mitchell and Webb concur.