HOLLY G. HASH and
No. 02 CVS 342
LENA MARIE HENNIGAN and
MARY ELIZABETH PATILLO,
The Law Offices of Charles M. Putterman, P.C., by Charles M.
Putterman, for plaintiffs-appellants.
Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for defendants-appellees.
Plaintiffs Holly G. Hash and her husband Thomas Hash appeal from a jury verdict in their favor against defendants Lena Marie Hennigan and Mary Elizabeth Patillo in the amount of $5,000.00. Plaintiffs contend on appeal that the trial court erred (1) in denying their motion in limine to exclude a suspension letter received by Ms. Hash from her employer and (2) in failing to give a limiting or curative instruction with respect to an exhibit. Because the trial court simply deferred ruling on the motion in limine rather than denying the motion and because plaintiffs failedto properly preserve for appellate review any objection with respect to the exhibit, we uphold the decision below.
The Court may recall that conversation.
There was a zero listed under medical expenses
on that bankruptcy form, 2002, and yet there
was a six hundred something dollar number
listed on the medical _ medical insurance
expense line. And I indicated to the Court at
that time that I although I had not objected
at that moment that I felt that there should _
and I didn't want to draw further attention to
the issue, I felt that the Court could
instruct the jury not to _ well, could strike
any reference to that bankruptcy form and the
zero in that answer to that particular
The reason being that it would give the
jury the impression that there were no medical
expenses. That plaintiff cannot explain the
zero without opening the door to collateral
sources, and _ and the Court indicated at that
time that _ we were not on the record, but theCourt indicated at the time that you would not
grant that motion to strike and subsequently I
requested that the Court instruct counsel for
defendant not to make any reference to that
document or the zero in that _ in response to
that question. And I believe the Court denied
that request as well, and I wanted to take the
opportunity to put that on the record.
Defendants' counsel responded that plaintiffs' objection was too
late because the exhibit had already been discussed before the jury
and that, in any event, there had been no discussion of insurance.
The trial court then reiterated its denial of plaintiffs' motion to
Following the conclusion of defendants' evidence, counsel for defendants moved the admission of their exhibits, including Exhibit 17. The exhibits were admitted without any objection by plaintiffs. During a recess, counsel for plaintiffs then stated that he objected to Exhibit 17 and asked "that there be some redaction of the document to eliminate that number," referring to the zero listed next to the medical expenses. Defendants' attorney responded, "Your Honor, I won't _ I won't show it to the jury. I won't discuss that number. If they want to see it when they deliberate, we can redact it then." Plaintiffs' attorney replied, "All right. That's my only concern," whereupon the trial judge said, "All right. We'll have that stipulation for the record."
Plaintiffs waived any objection to introduction of evidence of the zero figure on Exhibit 17 by failing to object at the time the exhibit was shown to Ms. Hash and questions were asked of her regarding the zero figure. N.C.R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must havepresented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . ."). Because plaintiffs' counsel made a strategic decision not to object, he cannot now complain about the admission of the evidence or the denial of his motion to strike. See State v. Canady, 330 N.C. 398, 401-02, 410 S.E.2d 875, 878 (1991) ("If we did not have [N.C.R. App. P. 10], a party could allow evidence to be introduced or other things to happen during a trial as a matter of trial strategy and then assign error to them if the strategy does not work.").
Further, with respect to plaintiffs' contention that the trial court should have given a curative or limiting instruction to the jury, plaintiffs never made such a request. While initially suggesting that he had asked for an instruction to the jury, plaintiffs' counsel then clarified that he had actually moved to strike the evidence. The absence of a request at trial for a limiting or curative instruction precludes review of the issue on appeal. State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992) ("A trial court does not err by failing to give a curative jury instruction when, as here, it is not requested by the defense. . . . Defense counsel could well conclude that a curative instruction would do more harm than good by highlighting the matter in the jury's eyes."); State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991) ("The defendant, having failed to specifically request or tender a limiting instruction at the time the evidence was admitted, is not entitled to have the trialcourt's failure to give limiting instructions reviewed on appeal."). Accordingly, this assignment of error is overruled.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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