Kor Xiong v. Marks

668 S.E.2d 594, 193 N.C. App. 644, 2008 N.C. App. LEXIS 2016
CourtCourt of Appeals of North Carolina
DecidedNovember 18, 2008
DocketCOA08-52
StatusPublished
Cited by28 cases

This text of 668 S.E.2d 594 (Kor Xiong v. Marks) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kor Xiong v. Marks, 668 S.E.2d 594, 193 N.C. App. 644, 2008 N.C. App. LEXIS 2016 (N.C. Ct. App. 2008).

Opinions

[646]*646STROUD, 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 forcing] 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 usé an enlarged copy of [647]*647Rule 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 plaintiffs 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, 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, 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, [648]*648490 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.

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Bluebook (online)
668 S.E.2d 594, 193 N.C. App. 644, 2008 N.C. App. LEXIS 2016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kor-xiong-v-marks-ncctapp-2008.