NO. COA02-1538

NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2004

    Appeal by defendant from order entered 16 April 2002 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 27 October 2003.

    No brief filed on behalf of plaintiffs-appellees.

    Legal Services of Southern Piedmont, Inc., by Andrea Young Bebber, for defendant-appellant.

    
    GEER, Judge.

    In an appeal to district court from a small claims court order granting plaintiffs Catherine G. McGuire and Phillip E. McGuire possession of a mobile home rented to defendant Donald Charest and awarding past-due rent, defendant filed counterclaims for breach of the warranty of habitability, fraud, breach of the covenant of quiet enjoyment, and unfair and deceptive trade practices. When during the trial on defendant's counterclaims, plaintiffs' evidenceended earlier than defendant had anticipated, the trial judge denied defendant's request for a recess to call two rebuttal witnesses subpoenaed for a later time and refused to allow defendant to make an offer of proof of the witnesses' testimony. Because we hold that the trial court's refusal to accept defendant's offer of proof violated Rule 43 of the North Carolina Rules of Civil Procedure, we remand for a new trial.
    From October 1995 to May 2001, defendant rented a mobile home from plaintiffs in Mount Pleasant, North Carolina. On 7 May 2001, after defendant began withholding rent due to plaintiffs' alleged failure to make necessary repairs to the home, plaintiffs filed a complaint in small claims court against defendant for summary ejectment and past-due rent. On 14 May 2001, the small claims court entered judgment against defendant for $219.00 and awarded possession to plaintiffs.
    On 24 May 2001, defendant filed notice of appeal to district court from the judgment of the small claims court. Defendant also filed an answer and counterclaims, alleging that the mobile home was in poor condition, that plaintiffs failed to make necessary repairs, and that plaintiffs had harassed defendant.
    At the bench trial beginning 20 February 2002, the trial judge first dismissed plaintiffs' complaint as to rent owed for failure to prove the amount of rent due. Defendant then presented evidencein support of his counterclaims, contending that when he moved into the mobile home in October 1995, he found wet and mildewed carpets, faulty windows, and soft spots in the floor. According to defendant, during his tenancy, a hot water leak caused a bedroom floor to give way, an inadequate septic tank overflowed, water pressure failed, and the windows leaked. Defendant claimed that because plaintiffs refused to make necessary repairs, he was required to make the repairs himself without compensation or rent abatement.
    Plaintiffs began presenting their evidence on 20 February 2002 with one out-of-state witness allowed to testify on 21 February 2002. The matter was then continued to 18 March 2002. During the presentation of plaintiffs' evidence, both Ms. McGuire and her daughter Sandra Springer testified that Ms. Springer had lived in the mobile home shortly before defendant moved in during October 1995; that the tenant immediately prior to defendant, William Carpenter, had only lived there three months; and that the home was in very good condition at the time both Carpenter and defendant took possession.
    Plaintiffs' evidence concluded earlier than anticipated on 18 March 2002 when two of plaintiff's witnesses, although subpoenaed, failed to appear. Defense counsel explained to the court that certain rebuttal witnesses were not yet present and requested abreak. The trial judge denied the request. After defendant and another witness testified in rebuttal, counsel requested time to contact the two rebuttal witnesses who had been subpoenaed for 2:00 p.m. The trial court refused the second request and heard closing arguments, which concluded at approximately 11:20 a.m. The court made no ruling on the case from the bench, but indicated that an order would be forthcoming in a week.
    Twenty-five minutes later, at 11:45 a.m., defense counsel asked the trial judge for an opportunity to make an offer of proof as to the testimony that his rebuttal witnesses would have offered. Because plaintiffs' counsel was not still present in the courtroom, the trial judge agreed to reconvene at 2:00 p.m. that afternoon.
    At 2:00 p.m., the trial court denied counsel's request to make an offer of proof, even though the proposed rebuttal witnesses were present in the courtroom, stating:
        I'm not going to allow it. [Counsel for plaintiffs] had asked for more time to get his witnesses here. As I indicated it was a three-day trial. Everyone should have had their witnesses here at that time. We heard voluminous evidence, one witness after the other, a lot of which was just cumulative evidence. . . . I'm not going to -- no more -- no more evidence. That may be an issue for you on appeal, but I'm not going to allow any further evidence today. . . . As I indicated, a number of the witnesses that we heard this morning were just cumulative. Three days worth of evidence and everyone . . . wassaying the same thing over and over again. I've got three tablets worth of evidence.

Later that same day, defendant filed a written offer of proof in the form of affidavits from his two rebuttal witnesses, William A. Carpenter, Jr. and Lana B. Curlee, setting out their expected testimony.
    Mr. Carpenter's affidavit stated that he rented the mobile home at issue from late 1994 until October 1995, that Ms. McGuire generally refused to make necessary repairs despite his requests, and that when he moved out of the home in October 1995, there were numerous defects in the home, including a soft floor in a bathroom and dysfunctional windows. The affidavit of Ms. Curlee, an employee of Union Power Cooperative, stated that the electric service at the mobile home was in Mr. Carpenter's name from 8 December 1994 until 31 October 1995. The evidence of these two witnesses would have contradicted the testimony of Ms. McGuire and her daughter that the daughter had lived in the mobile home until shortly before defendant moved into the home in October 1995 and that the mobile home was, at that time, in good condition.
    On 16 April 2002, the district court entered an order finding that defendant had failed to meet his burden of proof, dismissing defendant's counterclaims, and taxing defendant with the costs ofthe action. Defendant filed notice of appeal to this Court on 16 May 2002.

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    Defendant contends that the trial court's refusal to allow him to make an offer of proof as to the substance of the excluded rebuttal testimony violated Rule 43(c) of the North Carolina Rules of Civil Procedure. We agree given the circumstances of this case.
    Rule 43(c) provides:
        Record of excluded evidence. _ In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any grounds or that the witness is privileged.

N.C.R. Civ. P. 43(c) (emphasis added). See also N.C.R. Evid. 103(a)(2) (providing that reversible error may not be predicated on a ruling excluding evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context"). In accordance with these rules, "[i]t is obvious that the judge should ordinarily allow . . . a record [of excludedevidence] to be made . . . ." 1 Henry Brandis, Jr. & Kenneth S. Broun, North Carolina Evidence § 18 (1998). Indeed, this Court has held that "Rule 43(c) . . . requires the trial court, upon request, to allow the insertion of excluded evidence in the record." Nix v. Allstate Ins. Co., 68 N.C. App. 280, 282, 314 S.E.2d 562, 564 (1984) (emphasis added). Although the evidence was closed when defendant asked to make an offer of proof, this case involved a bench trial, the request was made very shortly after the trial court had effectively excluded the witnesses, the court had not yet rendered its decision, and the court chose to reconvene court with the proposed witnesses present. Under these circumstances, we believe the trial judge erred in refusing to allow defendant to make an offer of proof. We must still consider whether this error was harmless.
    The reported cases reviewing a trial court's rejection of an offer of proof have focused on the inability of the appellant to make a record sufficient for appellate review in the absence of an offer of proof. See, e.g., Nix, 68 N.C. App. at 283, 314 S.E.2d at 564 (remanding for new trial where trial court refused an offer of proof and appellate court was "unable to determine whether the exclusion of the proffered testimony constituted prejudicial error"). In this case, defendant was able to include the substance of the excluded testimony in the record on appeal by filing anoffer of proof and supporting affidavits after the trial. Because of the purpose of an offer of proof, this action by defense counsel did not, however, necessarily eliminate any prejudice.
    A leading commentator on the Federal Rules of Evidence, while discussing Federal Rule of Evidence 103 (which is essentially identical to the North Carolina rule), has explained the function of an offer of proof:
        The offer of proof has an important function at both the trial and appellate level. At trial, the offer of proof informs the Judge what the proponent expected to prove by the evidence, thereby enabling the Judge to determine whether the evidence would be admissible for any purpose. On appeal, the offer of proof ensures that the record will provide enough detail with which to determine whether the Trial Court committed reversible error by excluding the evidence.

1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 103.02[7], at 103-14 to 103-15 (8th ed. 2002). Thus, an offer of proof serves a dual purpose:
        An offer of proof is intended to inform the court what the party making the offer intends to prove, so that the court may rule intelligently upon the objections to questions which have been asked, and to make such record that the appellate court can determine whether there was reversible error in excluding the question.

Annotation, Ruling on Offer of Proof as Error, 89 A.L.R.2d 279 (1963). In short, at the trial level, the offer of proof ensuresthat the trial judge is fully informed when making his or her ruling excluding evidence.
    The offer of proof thus serves an important purpose beyond facilitating appellate review. The trial court's refusal in this case to accept the offer of proof was made without regard for the vital function that the offer of proof plays at the trial level: enabling the trial judge to make an informed decision regarding evidence sought to be admitted. Here, the trial court's ruling deprived defendant of the opportunity to demonstrate to the court that the testimony of his proposed rebuttal witnesses was non- cumulative and important to his case at a point when the evidence could still make a difference in the final determination. Given the trial court's conviction that the rebuttal witnesses would merely be cumulative _ a conviction reached without benefit of any information as to the nature of the excluded testimony _ we cannot conclude that the trial court's action was harmless and must remand for a new trial. Nix, 68 N.C. App. at 283, 314 S.E.2d at 564-65 (remanding for new trial when offer of proof not allowed).
    Because of our disposition of this case, we find it unnecessary to address defendant's argument regarding the trial court's refusal to grant a recess.    
    
    New trial.
    Chief Judge EAGLES and Judge HUNTER concur.
    Report per Rule 30(e).

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