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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
JONG SUNG PARK and
KYUNG OK PARK,
No. 03 CVS 15252
YOUNG HOMES, INC.,
SCHLUTER-SYSTEMS, L.P.; and
DIAMOND EDGE TILE, INC.;
Appeal by plaintiffs from judgment entered 24 April 2006 by
Judge Robert H. Hobgood in Superior Court, Wake County. Heard in
the Court of Appeals 28 August 2007.
Harris & Hilton, P.A., by Nelson G. Harris, for plaintiffs -
Bailey & Dixon, L.L.P., by David S. Coats and David S. Wisz,
for defendant-third party/plaintiff-appellee.
No brief filed for third-party defendant Schluter-Systems,
Young Moore and Henderson, P.A., by Jay P. Tobin, for third-
party defendant-appellee Diamond Edge Tile, Inc.
Where a party fails to object to jury instructions, it is
conclusively presumed that the instructions conformed to the issuessubmitted and were without legal error.
(See footnote 1)
Here, Plaintiffs contend
that the trial court erred by submitting to the jury the question
of whether the amended complaint complied with the statute of
limitations since the evidence did not support such an instruction.
Because Plaintiffs failed to object to the jury instructions at
trial, we find no error.
The relevant facts show that on 7 November 2003, Plaintiffs
Jong Sung Park and Kyung Ok Park commenced an action against
Defendant Young Homes, Inc., seeking to recover damages arising out
of the allegedly defective construction of their house located at
500 Pendleton Lake Drive in northern Wake County.
(See footnote 2)
In the original
Plaintiffs' breach of contract claim focused on the
installation of the tile flooring. On 14 November 2003, Defendant
filed a third-party complaint against Diamond Edge Tile, Inc., the
subcontractor who installed the tile flooring in the house, and
Schluter-Systems, L.P., the manufacturer of the underlayment called
DITRA, which was used in the installation of the interior tile
On 7 January 2004, Defendant filed an answer to the complaint
denying liability and raising numerous affirmative defenses,
including Plaintiffs' failure to mitigate.
Subsequently, Third-Party Defendant Diamond filed an answer to Defendant's third-party
complaint and cross claims against Third-Party Defendant Schluter.
On 6 October 2005, the trial court granted Plaintiffs' Consent
Motion for Leave to Amend Complaint in order to include the alleged
defects of the windows in the house. On 3 November 2005, Defendant
filed an answer to the amended complaint denying liability and
raising the affirmative defense of statute of limitations.
The trial for this matter was conducted from 28 March 2006
through 11 April 2006. Following a jury verdict,
(See footnote 3)
the trial court
ordered that Plaintiffs recover nothing from Defendant Young Homes,
dismissed the action with prejudice, dismissed with prejudice all
claims alleged against the third-party defendants, and taxed costs
to Plaintiffs. On 21 April 2006, Plaintiffs filed a motion for anew trial.
(See footnote 4)
Plaintiffs appeal to this Court, contending that the trial
court erred by: (I) submitting the statute of limitations issue to
the jury; (II) allowing questions concerning Plaintiffs' other
construction claims; and (III) failing to set aside the verdict.
Plaintiffs first argue that the trial court erred by allowing
the jury to determine whether Plaintiffs' amended complaint was
filed within the statute of limitations period for an action
pursuant to Section 1-52(16) of the North Carolina General
Statutes. Specifically, Plaintiffs contend that the amended
complaint should relate back to the original complaint, making a
jury instruction on statute of limitations unnecessary. We
Under our Rules of Appellate Procedure, a party cannot assign
error to any portion of a jury charge or omission therefrom, unless
that party objects to the charge or omission before the jury
retires to consider its verdict. N.C. R. App. P. 10(b)(2). Thus,
where a party in a civil case fails to object to jury instructions,
it is conclusively presumed that the instructions conformed to the
issues submitted and were without legal error. Dailey v. Integon
General Ins. Corp., 75 N.C. App. 387, 399, 331 S.E.2d 148, 156,
disc. review denied, 314 N.C. 664, 336 S.E.2d 399 (1985). During the charge conference, the trial court informed counsel
that the special interrogatories or instructions to the jury, in
part, would include the following: (1) statute of limitations
addressing the windows; (2)breach of contract damages, mitigation,
and additional mitigation instructions regarding the windows; and
(3) breach of contract, property damages, and mitigation regarding
the tiles. The only objection Plaintiffs made regarding the issue
of statute of limitations was to the phrasing of the interrogatory,
and not to the issue being submitted to the jury. Therefore,
pursuant to Rule 10(b)(2) of the North Carolina Rules of Appellate
Procedure, it is conclusively presumed that the instructions
conformed to the issues presented at trial. Hence, Plaintiff
cannot assign error to the jury instructions on the statute of
limitations. Accordingly, we dismiss this assignment of error.
Plaintiffs next argue that the trial court erred by allowing
questions concerning Plaintiffs' other construction claims.
Specifically, Plaintiffs contend that the probative value of the
testimony concerning the construction claims was substantially
outweighed by its unfair prejudice. Because Plaintiffs failed to
preserve this argument for appeal, we dismiss.
Our Supreme Court has held that [a] motion in limine is
insufficient to preserve for appeal the question of the
admissibility of evidence if the [movant] fails to further object
to that evidence at the time it is offered at trial. Martin v.
Benson, 348 N.C. 684, 684, 500 S.E.2d 664, 665 (1998). Here,Plaintiffs made a motion in limine to preclude Defendant and Third-
Party Defendants from introducing evidence concerning Plaintiffs'
other lawsuits. The trial court allowed Plaintiffs' motion in
part, in that neither Defendants nor Third-Party Defendants could
make any reference to any lawsuit or lawsuits, but denied the
motion in part, in that Defendants and Third-Party Defendants could
make reference to any claim or claims. During Plaintiff Kyung
Park's cross-examination, Plaintiffs failed to make any objection
to her testimony concerning the other construction claims.
Thus, by failing to object at trial, Plaintiffs waived
appellate review of this issue. Accordingly, we dismiss this
assignment of error.
Finally, Plaintiffs contend that the trial court erred by
failing to set aside the verdict. We also dismiss this assignment
of error because Plaintiff failed to include the order denying a
new trial in the record on appeal.
The omission of an order from the record precludes review by
this Court. See Beneficial Mortgage Co. v. Peterson
, 163 N.C. App.
73, 79, 592 S.E.2d 724, 728 (2004) (holding that absent the summary
judgment order this Court cannot review the question of whether the
trial court properly denied summary judgment). After a careful
examination of the record, we note that Plaintiffs failed to
include the trial court's order concerning Plaintiffs' motion for
a new trial. Additionally, Defendant contends that Plaintiffs'
notice of appeal did not include the trial court's order denyingPlaintiffs' motion. However, we are unable to make that
determination because the order is not before us. Accordingly,
Plaintiffs' assignment of error is dismissed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
Dailey v. Integon General Ins. Corp.
, 75 N.C. App. 387,
399, 331 S.E.2d 148, 156, disc. review denied
, 314 N.C. 664, 336
S.E.2d 399 (1985)
The parties had numerous other claims; however, all claims
were settled except the Plaintiffs' claims for damages relating
to the tile flooring and windows in the house.
The jury's verdict included the following:
1. Plaintiffs John and Kay Park amended their
Complaint on October 6, 2005, to include the
claim for the windows. Was the Plaintiffs
the Parks' amendment of their Complaint on
October 6, 2005, within three (3) years of
the date that they first knew or first
reasonably should have known that the windows
at the House were allegedly not the windows
agreed to by Plaintiffs the Parks and
Defendant Young Homes? [The jury answered
. . .
3. As to Plaintiffs the Parks' breach of
contract claim with respect to tile:
a. Did the Defendant Young Homes breach its
contract with Plaintiffs the Parks with
respect to the tiles? [The jury answered no.]
Plaintiff failed to include the order concerning the
motion for a new trial in the record on appeal. However, the
parties' briefs indicate that the trial court denied the motion
for a new trial.
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