Converted WP file 070067-1

NO. COA07-67

NORTH CAROLINA COURT OF APPEALS

Filed: 2 October 2007

JONG SUNG PARK and
KYUNG OK PARK,

Plaintiffs,

v . Wake County
No. 03 CVS 15252
YOUNG HOMES, INC.,

    Defendant/Third Party
    Plaintiff,

    v.

SCHLUTER-SYSTEMS, L.P.; and
DIAMOND EDGE TILE, INC.;

Third-Party Defendants.

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 - appellants.

    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, L.P.

    Young Moore and Henderson, P.A., by Jay P. Tobin, for third- party defendant-appellee Diamond Edge Tile, Inc.

    WYNN, Judge.

    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 complaint, 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 flooring.
    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 disagree.
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.
    Dismissed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1

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 no.]

        . . .
        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.]

Footnote: 4