Outen v. Mical , 118 N.C. App. 263 ( 1995 )

Judge Greene

concurring in part and dissenting in part.

Although I agree the trial court erred in entering its judgment for the plaintiff individually, I disagree with the holding of the majority that the judgment must be entered for the corporation. Otherwise, I concur in the opinion of the majority.

This action was filed in the name of David Outen, individually and as president of the corporation. The issues submitted to the jury required it to determine the amount of damages the “plaintiff’ was entitled to recover of the defendants. The judge instructed the jury that the word “plaintiff’ had reference to “David Outen personally and as president of the corporation.” The defendants did not object at trial to either the issues or the jury instructions. Accordingly, they cannot on appeal now argue that the corporation is the only proper plaintiff. N.C. R. App. R 10(b) (objections not made before trial court are waived).

Because, however, the judgment entered by the trial court does not conform to the jury verdict, I would reverse the judgment in favor of the individual plaintiff and remand for entry of a judgment in favor of “David Outen personally and as president of the corporation.” Neither the trial court nor this Court is permitted to enter a judgment inconsistent with the verdict of the jury. Southeastern Fire Ins. Co. v. Walton, 256 N.C. 345, 348, 123 S.E.2d 780, 783 (1962).