An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04_1543


Filed: 16 August 2005


v .                         Warren County
                            No. 02 CVS 342

    Appeal by plaintiffs from judgment entered 4 June 2004 by Judge A. Leon Stanback, Jr., in Warren County Superior Court. Heard in the Court of Appeals 8 June 2005.

    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.

    GEER, Judge.

    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.

     This litigation arises out of a motor vehicle collision that occurred on 8 October 1999. A vehicle driven by defendant Lena Marie Hennigan and owned by defendant Mary Elizabeth Patillo, Ms. Hennigan's aunt, rear-ended a vehicle driven by Ms. Hash. Ms. Hash and her husband filed a negligence action against defendants on 17 September 2002. The jury awarded plaintiffs $5,000.00 on 29 May 2004.
    On 14 June 2004, plaintiffs filed a motion for a new trial, arguing that the damages were inadequate and were awarded under the influence of passion or prejudice. The trial court denied this motion on 12 July 2004. On 22 July 2004, plaintiffs timely appealed from the final judgment entered on the jury's verdict.
    Plaintiffs first assign as error "[t]he court's denial of plaintiff's Motion in Limine to prohibit the introduction of testimony regarding a letter of suspension received by plaintiff on the grounds that the letter contained double hearsay or compound hearsay." Likewise, plaintiff's first "Question Presented" asks whether the trial court committed reversible error by denying plaintiffs' motion in limine.
    Prior to trial, plaintiffs asked the trial court to exclude a letter received by Ms. Hash from her former employer suspending her with pay. After hearing from the parties regarding the letter, thetrial court stated, "Well, I think that it may be a proper subject for cross-examination. I'm going to withhold my ruling until I've heard the other evidence in the case." Subsequently, at trial, the court allowed defendants, over plaintiffs' objection, to cross- examine Ms. Hash regarding the letter, after Ms. Hash testified on direct examination that she had received a letter suspending her. Plaintiffs have not, however, assigned error to the ruling at trial. This Court's review "is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10." N.C.R. App. P. 10(a).
     The decision of a trial judge to defer ruling on a motion in limine is reviewed for abuse of discretion. State v. Barber, 120 N.C. App. 505, 510, 463 S.E.2d 405, 408 (1995), disc. review denied, 342 N.C. 896, 467 S.E.2d 906 (1996) . We hold that the trial judge acted reasonably in deciding to defer ruling until he had a better factual context for his ruling. At the motion in limine stage, he could not know whether plaintiffs would open the door regarding the subject of the letter or whether the letter would otherwise become pertinent to the issues before the jury. See State v. Lamb, 321 N.C. 633, 648, 365 S.E.2d 600, 608 (1988) ("The trial court, at these early stages, had no factual context in which to make a decision and properly deferred its ruling. The Rules of Evidence are not to be applied in a vacuum; they are to be applied in a factual context. A trial court makes its decisions as that factual context unfolds and as the circumstances warrant.").     Plaintiffs also assign error to the trial court's "denial of plaintiff[s'] request for a curative instruction to strike any reference to a certain numerical value in plaintiffs' bankruptcy application on the grounds that the introduction of said value violated the collateral source rule." Defendants' Exhibit 17 was plaintiffs' Chapter 13 bankruptcy plan, which listed a figure of zero for average monthly medical and dental expenses. Plaintiffs have not, however, properly preserved this issue for appeal.
    Defendants questioned Ms. Hash without objection regarding the bankruptcy plan and the lack of any medical or dental expenses. On the next day of trial, plaintiffs' counsel stated prior to the jury being convened:
In chambers yesterday after an exhibit was shown to Ms. Hash dealing with the bankruptcy, I had indicated to the Court that I wanted to move to strike any reference to that form, because it, in a circuitous fashion, hinted at a collateral source issue.

    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 question.

    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 strike.
    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.

    No error.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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