Schmoker v Land, 162 NC App 547 (03-265) 02/03/2004

Appeal by plaintiff from judgment entered 23 July 2002 by Judge Henry V. Barnette, Jr., in Superior Court, Granville County. Heard in the Court of Appeals 19 November 2003.

Browne, Flebott, Wilson & Horn, PLLC, by Martin J. Horn, for plaintiff-appellant.

Haywood, Denny & Miller, by George W. Miller, Jr., for defendant-appellee.

    McGEE, Judge.

    James Schmoker (plaintiff) filed suit against Gloria Land (defendant) on 6 August 2001. Plaintiff filed an amended complaint on 21 August 2001, pursuant to N.C. Gen. Stat. § 1A-1, Rule 15. Defendant filed an answer to the amended complaint on 18 September 2001. The case was tried before a jury and the jury returned a verdict in favor of defendant. Plaintiff appeals.
    This appeal arises from an automobile collision which occurred on 10 July 1996. Plaintiff was driving north on Highway 50 in Granville County in a four-wheel drive Chevrolet truck with a utility trailer attached. Plaintiff engaged his right turn signal and attempted to turn right into a private driveway immediately offHighway 50. The driver of a 1990 Pontiac van traveling directly behind plaintiff began to slow her vehicle, but noticed through her rearview mirror, that defendant's vehicle was quickly approaching. The driver, fearful that defendant's vehicle was going to hit the rear of her vehicle, decided she "better get out of the way." Her attempt failed and defendant's vehicle collided with both her vehicle and plaintiff's trailer.
    We note plaintiff has failed to present an argument in support of assignment of error number two and it is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Plaintiff first argues that the trial court abused its discretion in refusing to admit evidence of plaintiff's opinion regarding the fair market value of his truck. At trial, plaintiff's counsel asked plaintiff if plaintiff had an opinion as to the fair market value of his truck before the accident. Before plaintiff answered, defense counsel objected and the trial court sustained the objection. At that point, plaintiff's counsel simply continued questioning plaintiff as to other matters. The record does not show what plaintiff's answer would have been had he been allowed to respond to the question of the value of his truck. Therefore, this Court cannot determine whether or not the ruling was prejudicial to plaintiff.
    Our Supreme Court has addressed the exclusion of evidence in the following manner:
            "It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had hebeen permitted to testify." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) (citing State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983)). "[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record." Id. at 370, 334 S.E.2d at 60 (citing Currence v. Hardin, 296 N.C. 95, 249 S.E.2d 387 (1978)).

State v. Dale, 343 N.C. 71, 75, 468 S.E.2d 39, 42 (1996); see also State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 99, 181 S.E.2d 405, 414 (1971); State v. Poolos, 241 N.C. 382, 383, 85 S.E.2d 342, 343 (1955). "Where the record fails to show what the witness would have testified had he been permitted to answer questions objected to, the exclusion of such testimony is not shown to be prejudicial." State v. Kirby, 276 N.C. 123, 133, 171 S.E.2d 416, 423 (1970); see also State v. Wilhite, 308 N.C. 798, 801, 303 S.E.2d 788, 790-91 (1983).
    The question propounded by plaintiff's counsel was permissible; however, plaintiff failed to make an offer of proof as to his answer. Furthermore, the issue is rendered moot because the jury found that plaintiff's truck was not damaged in the 10 July 1996 accident. Plaintiff had claimed that the rear axle housing seal of his truck was broken loose by the impact of defendant's vehicle with plaintiff's trailer. Although plaintiff did present testimony concerning a repair estimate for his truck, the jury still found no damage to his truck. Thus, not only was the issue not properly preserved, it is also moot in light of the jury's finding. This argument is without merit.     Plaintiff next argues that the trial court erred by instructing the jury to award plaintiff the sum of one dollar for the property damage to his vehicle if they found that the truck was, in fact, damaged. For the reasons stated below, we also find this argument to be without merit.
    Pursuant to N.C. R. App. P. 10(b)(2), in order to assign as error any portion of a jury charge, a party must have "object[ed] thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection." Further, Rule 10(b)(2) provides that the party must be given an opportunity to object outside the hearing of the jury.
    In the case before us, plaintiff did not object when the trial court instructed the jury to award one dollar as nominal damages. Further, once the charge was given, the trial court gave the parties an opportunity to assert any objections outside the presence of the jury. When given the opportunity to object, plaintiff only objected to the trial court's statement to the jury that there was no competent evidence as to the measure of damages to plaintiff's truck. Plaintiff failed to object to the specific portion of the charge which he now argues on appeal was error. Accordingly, pursuant to N.C.R. App. P. 10(b)(2), plaintiff has waived his right to appellate review of this issue. See Donavant v. Hudspeth, 318 N.C. 1, 29, 347 S.E.2d 797, 814 (1986). Furthermore, this issue is also moot in light of the jury finding that plaintiff's truck was not damaged. We find this argument is without merit.    Affirmed.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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