Oddo v. Presser

• Decision Date: 17 June 2003
• Docket Number: No. COA02-560.,COA02-560.
• Citation: 158 NC App. 360,581 S.E.2d 123
• Court: North Carolina Court of Appeals
• Parties: Thomas C. ODDO, Plaintiff, v. Jeffrey L. PRESSER, Defendant.

581 S.E.2d 123

158 NC App. 360

Thomas C. ODDO, Plaintiff, v. Jeffrey L. PRESSER, Defendant.

No. COA02-560.

Court of Appeals of North Carolina.

June 17, 2003.

KMZ Rosenman, by L. Stanley Brown, and Michelle D. Reingold, Clemons, for plaintiff appellee.

Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, Durham, for defendant appellant.

TIMMONS-GOODSON, Judge.

Jeffrey L. Presser ("defendant") appeals from the judgment of the trial court entered upon a jury verdict finding him liable to Thomas C. Oddo ("plaintiff") for criminal conversation and alienation of affections. For the reasons stated herein, we find no error in part and reverse in part the judgment of the trial court.

The pertinent facts of the instant appeal are as follows: Plaintiff married Debra Tyson ("Debra") in 1988. During the marriage, plaintiff was primarily employed as an investment advisor earning approximately $32,000.00 annually. Plaintiff also coached wrestling at Davidson College ("Davidson"), where his salary was based on a sliding scale that started at $2,000.00 per year in 1985 and progressed to $24,000.00 per year in 1999. Debra worked as a vice-president at Bank of America in Charlotte. She was also the primary care-giver for the couple's three children.

By February of 1999, Debra had become unhappy with her marriage, and she contacted defendant, a former high school and college boyfriend. Following their initial telephone conversation, defendant mailed a letter to Debra at her workplace. Defendant also called Debra at her home. Debra telephoned defendant in March of 1999. As a result of that conversation, Debra and defendant met in Charlotte three times between the 18th and 20th of March 1999. While visiting, Debra and defendant engaged in sexual intercourse at a hotel. After their first meeting, Debra and defendant continued to communicate via electronic mail.

On 29 March 1999, Debra informed plaintiff that she was in love with someone else and wanted a separation. Debra and plaintiff physically separated in April of 1999. After the separation, plaintiff learned of Debra and defendant's communications and involvement during the marriage. Debra and plaintiff subsequently divorced.

Plaintiff filed an amended complaint against defendant on 19 January 2000 in Mecklenburg County Superior Court, seeking compensatory and punitive damages for his claims of alienation of affections and criminal conversation. The case came before the jury on 17 April 2001. After considering the evidence, the jury found defendant liable to plaintiff and awarded him $910,000.00 in compensatory damages and $500,000.00 in punitive damages. The trial court entered judgment accordingly. From the judgment entered against him, defendant appeals.

Defendant contends the trial court erred in (1) improperly instructing the jury; (2) allowing evidence regarding damages to plaintiff; and (3) submitting the issue of punitive damages to the jury. Plaintiff further argues that (4) the award of punitive damages was excessive as a matter of law. For the reasons that follow, we conclude that the trial court erred in allowing speculative evidence concerning damages to plaintiff. We otherwise discern no error by the trial court.

Defendant first assigns error to the trial court's instruction to the jury regarding alienation of affections. Specifically, defendant argues that the instruction given by the trial court required a lower standard of proof for establishing a claim for alienation of affections than is allowed under North Carolina law. We conclude that defendant has waived this assignment of error.

The North Carolina Rules of Appellate Procedure preclude a party from "assign[ing] 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[.]" N.C.R.App. P. 10(b)(2) (2002); see Shaw v. Stringer, 101 N.C.App. 513, 517, 400 S.E.2d 101, 103 (1991)

. Although defendant objected to the jury instructions regarding alienation of affections, the objection pertained solely to a limiting instruction regarding evidence of a recorded telephone conversation. There is no indication in the transcript that defendant opposed the offered standard concerning alienation of affections to which he now assigns error. Because defendant did not object on these grounds, he failed to preserve his argument for appeal. See N.C.R.App. P. 10(b)(1). We therefore overrule this assignment of error.

By his second assignment of error, defendant argues that the trial court erred in admitting evidence of alleged damages to plaintiff arising from defendant's actions. At trial, plaintiff asserted that defendant's actions caused him such mental anguish as to impair his ability to effectively function in the workplace, resulting in the termination of his employment both as an investment advisor and a wrestling coach. Plaintiff argued that his termination from these positions resulted in a loss of income and other benefits. Defendant now asserts that the jury improperly considered evidence concerning plaintiff's loss of (1) income from investment advisor clients; (2) income and retirement benefits from his position as a wrestling coach at Davidson; and (3) tuition benefits. We consider defendant's arguments supporting this assignment of error in turn.

Defendant first argues that the trial court erred in allowing evidence of plaintiff's lost income and benefits arising from his termination of employment. Defendant correctly notes that damages for alienation of affections and criminal conversation are limited to "`the present value in money of the support, consortium, and other legally protected marital interests lost ... through the defendant's wrong'" and "`wrong and injury done to ... health, feelings, or reputation,'" including damages for mental distress. Hutelmyer v. Cox, 133 N.C.App. 364, 373, 514 S.E.2d 554, 561 (quoting Sebastian v. Kluttz, 6 N.C.App. 201, 219, 170 S.E.2d 104, 115 (1969)), disc. review denied, 351 N.C. 104, 541 S.E.2d 146 (1999) and appeal dismissed, 351 N.C. 356, 542 S.E.2d 211 (2000). Again, however, defendant has failed to preserve this argument for appellate review.

To "preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make." N.C.R.App. P. 10(b)(1). Where a defendant objects to evidence on only one ground, he fails to preserve for appeal any additional grounds. See State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269, 271 (1995)

.

Although defendant objected at trial to plaintiff's presentation of evidence concerning lost income and benefits, defendant failed to object on the grounds that plaintiff's lost income and benefits were not to be considered in determining damages for alienation of affections and criminal conversation. Rather, defendant's objections centered on his contention that the evidence was speculative, improperly documented, and constituted impermissible hearsay. As a result, defendant has failed to preserve for appeal his argument that plaintiff's lost income and benefits were improper measures of damages allowed in alienation of affections and criminal conversation claims. See Francis, 341 N.C. at 160,

459 S.E.2d at 271.

Defendant further argues that the admission of plaintiff's evidence of damages was improper as too speculative and uncertain.

We note that defendant objected to the introduction of evidence concerning plaintiff's lost income from Davidson only on the grounds of hearsay and the unavailability of summarized documents that were presented to the jury, and not on the grounds of uncertainty. Defendant has therefore failed to preserve his argument relating to plaintiff's loss of income from Davidson. See N.C.R.App. P. 10(b)(1).

Defendant did, however, properly object to the introduction of evidence concerning loss of plaintiff's income as an investment advisor and tuition benefits from Davidson as overly speculative. Plaintiff argues that the economic losses he suffered as a result of his poor work performance were a natural and consequential injury stemming from defendant's conduct.

The general rule in North Carolina is that where a plaintiff is injured by the tortious conduct of a defendant, "the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from [the] defendant's tort." King v. Britt, 267 N.C. 594, 597, 148 S.E.2d 594, 597 (1966). A defendant's "liability extends not only to injuries which are directly and immediately caused by his act, but also to such consequential injuries, as according to the common experience of men, are likely to result from such act." Lane v. R.R., 192 N.C. 287, 290, 134 S.E. 855, 857 (1926).

Although precise damages are often difficult to ascertain, a jury may award damages based upon evidence that is relatively speculative, see DiDonato v. Wortman, 320 N.C. 423, 431, 358 S.E.2d 489, 494 (1987), and it is well settled that some speculation is inherent in the projection of future earning capacity. See Bahl v. Talford, 138 N.C.App. 119, 126, 530 S.E.2d 347, 352,

disc. review denied, 352 N.C. 587, 544 S.E.2d 776 (2000). Recovery is not permitted, however, where speculation becomes unreasonable. See DiDonato, 320 N.C. at 431,

358 S.E.2d at 494 (holding that, in an action for wrongful death of a stillborn child, losses related to income were too speculative); compare Fox-Kirk v. Hannon, 142 N.C.App. 267, 273, 542 S.E.2d 346, 351 (holding that, in an action for personal injuries to a minor child, evidence pertaining to the child's mental and physical condition at age two years and eleven months was sufficient to provide the jury with a reasonable basis upon which to estimate damages of the child's lost earnings), disc. review denied, 353 N.C. 725, 551...