Kor Xiong v. Marks

• Decision Date: 18 November 2008
• Docket Number: No. COA08-52.,COA08-52.
• Court: North Carolina Court of Appeals
• Parties: KOR XIONG, Plaintiff, v. Ingrid Diane MARKS, Defendant.

668 S.E.2d 594

KOR XIONG, Plaintiff, v. Ingrid Diane MARKS, Defendant.

No. COA08-52.

Court of Appeals of North Carolina.

November 18, 2008.

Appeal by plaintiff from judgment entered on or about 7 September 2007 and order entered 18 September 2007 by Judge John O. Craig, III in Montgomery County Superior Court. Heard in the Court of Appeals 19 August 2008.

Van Laningham & Associates, PLLC by R. Bradley Van Laningham, Carthage, for plaintiff-appellants.

Teague, Rotenstreich, Stanaland, Fox & Holt, by Paul A. Daniels, Greensboro, for defendant-appellees.

STROUD, Judge.

Plaintiff Kor Xiong appeals from the judgment dismissing his complaint with prejudice pursuant to a jury verdict on 7 September 2007 and from the order denying a new trial entered 18 September 2007. On appeal, plaintiff argues that the trial court erred by: (1) "improperly forc[ing] plaintiff to choose between excluding relevant evidence regarding his injury or letting in irrelevant evidence that no other person reported injury as a result of the wreck[;]" (2) "improperly refus[ing] to allow plaintiff to show the jury a copy of Rule 35[;]" (3) "refus[ing] to allow plaintiff to testify that he delayed seeking treatment for financial reasons[;]" and (4) failing to grant a new trial when "[t]here was insufficient evidence to justify the verdict" and evidence was excluded from the trial "contrary to law." For the following reasons, we affirm.

I. Factual and Procedural Background

On 18 June 2005 Kor Xiong ("plaintiff") was riding in the back seat of a motor vehicle operated by his nephew, Xeng Pao Vang. When Vang stopped on Highway 73 near Mt. Gilead to wait for traffic to pass before making a left turn, a vehicle operated by Ingrid Diane Marks ("defendant") struck Vang's vehicle from behind. Trooper Dale Walter arrived at the scene following the collision. Trooper Walter completed an accident report ("the accident report").

On 13 July 2005, nearly a month after the accident, plaintiff sought medical treatment at Stanly Memorial Hospital. The treating physician at the hospital diagnosed plaintiff as having "facial nerve palsy" and "neck and back pain secondary to trauma." The next day, 14 July 2005, plaintiff was seen by Dr. John Kilde, an ear, nose & throat specialist. Dr. Kilde confirmed the earlier diagnosis of facial nerve palsy and prescribed prednisone and eye ointment.

On 7 June 2006 plaintiff filed a complaint in Superior Court, Montgomery County, alleging personal injury resulting from the 18 June 2005 collision. In an answer filed on or about 18 September 2006, defendant admitted that she failed to reduce her speed as she approached Vang's vehicle and conceded she was "careless in the operation of her vehicle." However, defendant denied that the collision was the proximate cause of plaintiff's injuries.

On or about 21 August 2007 plaintiff filed a document containing six motions in limine. The first four motions are not at issue in this appeal. The fifth motion sought permission to use an enlarged copy of Rule 35 of the North Carolina Rules of Civil Procedure during closing arguments. The sixth motion sought to prohibit defendant from "asking witnesses other than Plaintiff if they or anyone else in the collision was injured." By a written notation at the bottom of the document, the trial court granted the first four motions, denied the fifth, and granted the sixth, with some modification "by consent of atty's[.]"

The case was tried before a jury in Montgomery County Superior Court on 20 and 21 August 2007. The jury returned a verdict in favor of defendant on 21 August 2007. On 27 August 2007, plaintiff filed a motion for new trial pursuant to Rule 59. Judgment pursuant to the jury verdict was entered on 7 September 2007. Following a hearing on 10 September 2007, the trial court entered an order on 18 September 2007 denying plaintiff's motion for a new trial. Plaintiff appeals.

II. Motions in Limine

A. Use of Rule 35 During Closing Arguments

Plaintiff argues that the trial court improperly denied his motion in limine requesting permission to show the jury a poster-size copy of Rule 35 during closing arguments. However, plaintiff did not seek to offer the poster at trial.

A ruling on a motion in limine is "merely preliminary" and not final. State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997), cert. denied, 523 U.S. 1142, 118 S.Ct. 1850, 140 L.Ed.2d 1099 (1998). A trial court's ruling on a motion in limine is "subject to change during the course of trial, depending upon the actual evidence offered at trial." Hill, 347 N.C. at 293, 493 S.E.2d at 274 (citation and quotation marks omitted). For this reason, "a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, 516 U.S. 884, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995). It follows that

[a] party objecting to an order granting or denying a motion in limine, in order to preserve the evidentiary issue for appeal, is required to object to the evidence at the time it is offered at the trial (where the motion was denied) or attempt to introduce the evidence at the trial (where the motion was granted).

Hill, 347 N.C. at 293, 493 S.E.2d at 274 (citation and quotation marks omitted).

This Court has applied this rule to closing arguments even though they are not evidence. State v. Williams, 127 N.C.App. 464, 468-69, 490 S.E.2d 583, 586-87 (1997) (declining to consider alleged impropriety in the State's closing argument when the defendant moved in limine to prevent the State from including certain statements during closing and the State included those statements in its closing argument but defendant did not object). Accordingly, we conclude that plaintiff waived appellate review of this issue when he failed to make an offer of proof of an enlarged copy of Rule 35 to the trial court during trial. This assignment of error is dismissed.

B. Evidence of Other Person's Injury or Lack Thereof

Plaintiff moved in limine to prohibit defendant from "asking witnesses other than Plaintiff if they or anyone else in the collision was injured" on the grounds that "[e]vidence of another person's injury or lack thereof ... is ... irrelevant under Rule 401." Plaintiff contends the trial judge erred in response to this motion when he (1) "ruled ... that he would exclude evidence as to the injury status of people other than Plaintiff only if Plaintiff agreed to redact the injury code showing that Plaintiff reported injury to the Trooper at the scene of the accident" and (2) "forced Plaintiff to either redact relevant and properly admissible evidence of Plaintiff's report of injury at the accident scene or agree to allow irrelevant and prejudicial evidence as to the supposed injury status of others." (Emphasis added.)

However, plaintiff's contention does not square with the record on appeal. The record shows that before the trial court's ruling on the motion, the parties' attorneys discussed the issue and their forecasts of evidence with the trial judge at a pre-trial conference. After the discussion, according to the trial court's notation at the bottom of the motion in limine, the parties modified the motion by mutual consent. While it would have been extremely helpful to our review if the parties had expressly stipulated on the record to the provision that they consented to, we can reasonably infer from the record that defendant agreed to refrain from "asking witnesses other than Plaintiff if they or anyone else in the collision was injured" in exchange for plaintiff agreeing to redact all the injury codes from the accident report. At trial, plaintiff did redact the injury codes before introducing the accident report into evidence, and defendant refrained from asking whether anyone else had been injured in the accident.

Our statutory mandate is to review rulings of the trial court which aggrieve the party seeking review. See N.C. Gen.Stat. § 1-277 (2007) (allowing appeal only from a "judicial order or determination"); N.C. Gen.Stat. § 1-271 (2007) (allowing appeal only by an aggrieved party); N.C.R.App. P. 10(b)(1) ("In order to preserve a question for appellate review, ... the complaining party [must] obtain a ruling [from the trial court] upon the party's request, objection or motion."); see also Fayetteville Publishing Co. v. Advanced Internet, ___ N.C.App. ___, ___, 665 S.E.2d 518, 522 (2008) ("The trial judge's comments during the hearing ... are not controlling; the written court order as entered is controlling.").

In the case sub judice, plaintiff speculated as to evidence which might be offered by defendant at trial and requested a preliminary ruling from the trial court to exclude that evidence. The trial court then reviewed the parties' forecasts of evidence, and determined preliminarily, subject to a final determination after the presentation of evidence at trial, that evidence of other persons' injuries or lack thereof would be relevant only if plaintiff introduced into evidence the accident report which contained the injury codes. See, e.g., State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) ("Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially."). Plaintiff and defendant then reached an agreement—defendant would not seek to put on evidence of the lack of injury to other passengers in the car and plaintiff would redact the injury codes from the accident report. At trial, both parties abided by the pre-trial agreement.

Plaintiff in effect sought to "fish in [the] judicial pond[ ] for legal advice." National Travel Servs., Inc. v. State ex rel. Cooper, 153 N.C.App. 289, 294, 569 S.E.2d 667, 670 (2002) (citation and quotation marks omitted) ...