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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2008
No. 06 CVS 304
INGRID DIANE MARKS,
Appeal by plaintiff from judgment entered on or about 7
September 2007 and order entered 18 September 2007 by Judge John O.
Craig, III in Montgomery County Superior Court. Heard in the Court
of Appeals 19 August 2008.
Van Laningham & Associates, PLLC by R. Bradley Van Laningham,
Teague, Rotenstreich, Stanaland, Fox & Holt, by Paul A.
Daniels, for defendant-appellees.
Plaintiff Kor Xiong appeals from the judgment dismissing his
complaint with prejudice pursuant to a jury verdict on 7 September
2007 and from the order denying a new trial entered 18 September
2007. On appeal, plaintiff argues that the trial court erred by:
(1) improperly forc[ing] plaintiff to choose between excluding
relevant evidence regarding his injury or letting in irrelevant
evidence that no other person reported injury as a result of the
wreck[;] (2) improperly refus[ing] to allow plaintiff to show the
jury a copy of Rule 35[;] (3) refus[ing] to allow plaintiff totestify that he delayed seeking treatment for financial reasons[;]
and (4) failing to grant a new trial when [t]here was insufficient
evidence to justify the verdict and evidence was excluded from the
trial contrary to law. For the following reasons, we affirm.
I. Factual and Procedural Background
On 18 June 2005 Kor Xiong (plaintiff) was riding in the back
seat of a motor vehicle operated by his nephew, Xeng Pao Vang.
When Vang stopped on Highway 73 near Mt. Gilead to wait for traffic
to pass before making a left turn, a vehicle operated by Ingrid
Diane Marks (defendant) struck Vang's vehicle from behind.
Trooper Dale Walter arrived at the scene following the collision.
Trooper Walter completed an accident report (the accident
On 13 July 2005, nearly a month after the accident, plaintiff
sought medical treatment at Stanly Memorial Hospital. The treating
physician at the hospital diagnosed plaintiff as having facial
nerve palsy and neck and back pain secondary to trauma. The
next day, 14 July 2005, plaintiff was seen by Dr. John Kilde, an
ear, nose & throat specialist. Dr. Kilde confirmed the earlier
diagnosis of facial nerve palsy and prescribed prednisone and eye
On 7 June 2006 plaintiff filed a complaint in Superior Court,
Montgomery County, alleging personal injury resulting from the 18
June 2005 collision. In an answer filed on or about 18 September
2006, defendant admitted that she failed to reduce her speed as she
approached Vang's vehicle and conceded she was careless in theoperation of her vehicle. However, defendant denied that the
collision was the proximate cause of plaintiff's injuries.
On or about 21 August 2007 plaintiff filed a document
containing six motions in limine. The first four motions are not
at issue in this appeal. The fifth motion sought permission to use
an enlarged copy of Rule 35 of the North Carolina Rules of Civil
Procedure during closing arguments. The sixth motion sought to
prohibit defendant from asking witnesses other than Plaintiff if
they or anyone else in the collision was injured. By a written
notation at the bottom of the document, the trial court granted the
first four motions, denied the fifth, and granted the sixth, with
some modification by consent of atty's[.]
The case was tried before a jury in Montgomery County Superior
Court on 20 and 21 August 2007. The jury returned a verdict in
favor of defendant on 21 August 2007. On 27 August 2007, plaintiff
filed a motion for new trial pursuant to Rule 59. Judgment
pursuant to the jury verdict was entered on 7 September 2007.
Following a hearing on 10 September 2007, the trial court entered
an order on 18 September 2007 denying plaintiff's motion for a new
trial. Plaintiff appeals.
II. Motions in Limine
A. Use of Rule 35 During Closing Arguments
Plaintiff argues that the trial court improperly denied his
motion in limine requesting permission to show the jury a
poster-size copy of Rule 35 during closing arguments. However,
plaintiff did not seek to offer the poster at trial. A ruling on a motion in limine is merely preliminary and not
final. State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274
(1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998). A
trial court's ruling on a motion in limine is subject to change
during the course of trial, depending upon the actual evidence
offered at trial. Hill, 347 N.C. at 293, 493 S.E.2d at 274
(citation and quotation marks omitted). For this reason, a motion
in limine is insufficient to preserve for appeal the question of
the admissibility of evidence. State v. Conaway, 339 N.C. 487,
521, 453 S.E.2d 824, 845, cert. denied, 516 U.S. 884, 133 L. Ed. 2d
153 (1995). It follows that
[a] party objecting to an order granting or
denying a motion in limine, in order to
preserve the evidentiary issue for appeal, is
required to object to the evidence at the time
it is offered at the trial (where the motion
was denied) or attempt to introduce the
evidence at the trial (where the motion was
Hill, 347 N.C. at 293, 493 S.E.2d at 274 (citation and quotation
This Court has applied this rule to closing arguments even
though they are not evidence. State v. Williams, 127 N.C. App.
464, 468-69, 490 S.E.2d 583, 586-87 (1997) (declining to consider
alleged impropriety in the State's closing argument when the
defendant moved in limine to prevent the State from including
certain statements during closing and the State included those
statements in its closing argument but defendant did not object).
Accordingly, we conclude that plaintiff waived appellate review of
this issue when he failed to make an offer of proof of an enlargedcopy of Rule 35 to the trial court during trial. This assignment
of error is dismissed.
B. Evidence of Other Person's Injury or Lack Thereof
Plaintiff moved in limine to prohibit defendant from asking
witnesses other than Plaintiff if they or anyone else in the
collision was injured on the grounds that [e]vidence of another
person's injury or lack thereof . . . is . . . irrelevant under
Rule 401. Plaintiff contends the trial judge erred in response to
this motion when he (1) ruled . . . that he would exclude evidence
as to the injury status of people other than Plaintiff only if
Plaintiff agreed to redact the injury code showing that Plaintiff
reported injury to the Trooper at the scene of the accident and
(2) forced Plaintiff to either redact relevant and properly
admissible evidence of Plaintiff's report of injury at the accident
scene or agree to allow irrelevant and prejudicial evidence as to
the supposed injury status of others. (Emphasis added.)
However, plaintiff's contention does not square with the
record on appeal. The record shows that before the trial court's
ruling on the motion, the parties' attorneys discussed the issue
and their forecasts of evidence with the trial judge at a pre-trial
conference. After the discussion, according to the trial court's
notation at the bottom of the motion in limine, the parties
modified the motion by mutual consent. While it would have been
extremely helpful to our review if the parties had expressly
stipulated on the record to the provision that they consented to,
we can reasonably infer from the record that defendant agreed torefrain from asking witnesses other than Plaintiff if they or
anyone else in the collision was injured in exchange for plaintiff
agreeing to redact all the injury codes from the accident report.
At trial, plaintiff did redact the injury codes before introducing
the accident report into evidence, and defendant refrained from
asking whether anyone else had been injured in the accident.
Our statutory mandate is to review rulings of the trial court
which aggrieve the party seeking review. See N.C. Gen. Stat. § 1-
277 (2007) (allowing appeal only from a judicial order or
determination); N.C. Gen. Stat. § 1-271 (2007) (allowing appeal
only by an aggrieved party); N.C.R. App. P. 10(b)(1) (In order to
preserve a question for appellate review, . . . the complaining
party [must] obtain a ruling [from the trial court] upon the
party's request, objection or motion.); see also Fayetteville
Publishing Co. v. Advanced Internet, ___ N.C. App. ___, ___, 665
S.E.2d 518, 522 (2008) (The trial judge's comments during the
hearing . . . are not controlling; the written court order as
entered is controlling.).
In the case sub judice, plaintiff speculated as to evidence
which might be offered by defendant at trial and requested a
preliminary ruling from the trial court to exclude that evidence.
The trial court then reviewed the parties' forecasts of evidence,
and determined preliminarily, subject to a final determination
after the presentation of evidence at trial, that evidence of other
persons' injuries or lack thereof would be relevant only if
plaintiff introduced into evidence the accident report whichcontained the injury codes. See, e.g., State v. Albert, 303 N.C.
173, 177, 277 S.E.2d 439, 441 (1981) (Where one party introduces
evidence as to a particular fact or transaction, the other party is
entitled to introduce evidence in explanation or rebuttal thereof,
even though such latter evidence would be incompetent or irrelevant
had it been offered initially.). Plaintiff and defendant then
reached an agreement - defendant would not seek to put on evidence
of the lack of injury to other passengers in the car and plaintiff
would redact the injury codes from the accident report. At trial,
both parties abided by the pre-trial agreement.
Plaintiff in effect sought to fish in [the] judicial pond
for legal advice. National Travel Servs., Inc. v. State ex rel.
Cooper, 153 N.C. App. 289, 294, 569 S.E.2d 667, 670 (2002)
(citation and quotation marks omitted) (disapproving the use of a
declaratory judgment action to determine prospectively whether a
certain act would violate an injunction). Plaintiff's counsel
weighed the advice and made a conscious trial strategy decision to
redact the injury codes from the accident report in order to keep
from opening the door to defendant presenting evidence of the lack
of injuries to others that the jury might well have considered
persuasive against plaintiff. Plaintiff lived up to his end of the
bargain at trial, as did defendant.
Plaintiff has therefore not presented a question which can be
reviewed by this Court. The record contains no order or ruling of
the trial court forcing plaintiff to redact the injury codes.
Plaintiff cannot be considered aggrieved by the trial court when heconsciously made a bargain with defendant and then received the
benefit of it. Furthermore, this Court does not second-guess
matters of trial strategy. See State v. Prevatte, 356 N.C. 178,
236, 570 S.E.2d 440, 472 (2002) (Decisions concerning which
defenses to pursue are matters of trial strategy and are not
generally second-guessed by this Court.), cert. denied, 538 U.S.
986, 155 L. Ed. 2d 681. Accordingly, we dismiss this assignment of
III. Exclusion of Evidence of Plaintiff's Finances
In his next argument, plaintiff contends that the trial court
improperly excluded evidence of his financial status at the time of
the accident. We disagree.
On direct examination plaintiff's counsel asked and plaintiff
answered, without objection from defendant, questions as to
plaintiff's age and marital status. When plaintiff's counsel asked
plaintiff what his wages were at the time of the accident,
defendant's counsel objected to the question on relevancy grounds.
The trial court allowed the question and answer concerning
plaintiff's wages. Defendant requested a bench conference to
discuss the admissibility of further evidence of plaintiff's
financial condition. The bench conference was not transcribed by
the court reporter, but the record includes a narrative per N.C.R.
App. P. 9(c):
Plaintiff argued that the jury needed to
understand that plaintiff was young, married
and made only $8.50 per hour. Plaintiff
argued to Judge Craig that this was very
relevant evidence as it explains why plaintiff
waited for several weeks before seekingmedical attention despite his symptoms.
Defendant argued that . . . evidence of
plaintiff's ability to pay medical bills [was
prohibited by] the reverse collateral source
(See footnote 1)
After hearing from both parties, the trial court instructed
plaintiff's counsel not to ask further questions regarding
plaintiff's financial status.
On appeal, plaintiff argues
Judge Craig ruled at the bench that
Plaintiff could not present evidence of
Plaintiff's inability to pay medical bills or
financial hardship to explain his delay in
treatment. Judge Craig also ruled that
Plaintiff could not present evidence of
Plaintiff's other financial obligations at the
time of the accident.
In a civil case, appellate review is limited to questions
actually presented to and ruled on by the trial court. N.C.R. App.
P. 10(b)(1), Rhyne v. K-Mart Corp.
, 149 N.C. App. 672, 690, 562
S.E.2d 82, 95 (2002) (It is a long-standing rule that a party in
a civil case may not raise an issue on appeal that was not raised
at the trial level.), aff'd
, 358 N.C. 160, 190, 594 S.E.2d 1, 21
(2004). Additionally, a party must preserve the exclusion of
evidence for appellate review by making a specific offer of proofunless the significance of the evidence is ascertainable from the
record. In re Dennis v. Duke Power Co.
, 341 N.C. 91, 102, 459
S.E.2d 707, 714 (1995).
The record contains no indication that plaintiff made an offer
of proof as to any evidence of plaintiff's financial condition
beyond evidence that he was young, married, and earned only $8.50
per hour. In fact, plaintiff's argument to the trial judge in
favor of admission of evidence of plaintiff's financial condition,
quoted above, sought only the admission of evidence of exactly
those three facts. Evidence that plaintiff was young and married
was admitted without objection by defendant; evidence of
plaintiff's hourly wage was admitted over defendant's objection.
Because evidence as to all three items requested by plaintiff was
before the jury and because plaintiff failed to make an offer of
proof as to any further evidence of defendant's financial condition
we conclude that there is nothing for this Court to review.
Accordingly, we dismiss this argument.
IV. Plaintiff's Rule 59 Motion
As a threshold matter, defendant moves this Court to dismiss
plaintiff's appeal from the trial court's denial of plaintiff's
Rule 59 motion on the grounds that plaintiff's motion for new trial
was filed before judgment was entered, and therefore not properly
before the trial court. However, defendant did not file a separate
motion to dismiss plaintiff's appeal, first raising this issue in
her brief. Accordingly, defendant's motion to dismiss plaintiff'sappeal from the trial court's Rule 59 ruling is denied. Smithers
v. Tru-Pak Moving Systems
, 121 N.C. App. 542, 545, 468 S.E.2d 410,
412 (A motion to dismiss an appeal must be filed in accord with
Appellate Rule 37, not raised for the first time in the brief[.]),
disc. review denied
, 343 N.C. 514, 472 S.E.2d 20 (1996).
However, an appellate court has the power to inquire into
jurisdiction in a case before it at any time, even sua sponte
Hedgepeth v. N.C. Div. of Servs. for the Blind
, 142 N.C. App. 338,
341, 543 S.E.2d 169, 171 (2001). Jurisdiction is the power to
hear and determine causes. McCullough v. Scott
, 182 N.C. 865,
871, 109 S.E. 789, 793 (1921) (citation and quotation marks
omitted). The question of whether a trial court has jurisdiction
to hear and determine a Rule 59 motion for new trial which was
filed before the entry of judgment appears to be an issue of first
impression in North Carolina. Rule 59 requires that [a] motion
for a new trial shall be served not later than 10 days after
of the judgment[,] but does not speak directly to whether a motion
for new trial may be filed before entry of judgment. N.C. Gen.
Stat. § 1A-1, Rule 59(b).
A case from this Court, Watson v. Dixon
, states that Rules 50
and 59 of our Rules of Civil Procedure implicitly provide that
these post-trial motions cannot be filed until after entry of
judgment. . . . Thus, [the oral motions for j.n.o.v. and new trial]
were not properly before the trial court as post-trial motions
under Rules 50 and 59. 130 N.C. App. 47, 51, 502 S.E.2d 15, 19
(1998), reaff'd on reh'g
, 132 N.C. App. 329, 511 S.E.2d 37 (1999),aff'd
, 352 N.C. 343, 532 S.E.2d 175 (2000). However, this language
appears to be dicta because the dispositive question was
whether the 30-day time period for filing notice of appeal pursuant
to Rule 3(c) of the North Carolina Rules of Appellate Procedure
began to run when the order denying the motion for new trial was
rendered in open court, or began to run when the written order
denying the motion was entered. Rule 3 plainly states that the 30-
day period begins to run from the date of entry
of the order[.]
N.C.R. App. P. 3(c)(3). Furthermore, a requirement that a Rule 59
motion for new trial may not be made until after entry of judgment
is contrary to practice in our trial courts and to the greater
weight of authority in federal cases addressing this question.
(See footnote 2)
The federal circuits appear to be generally in accord as to
this issue, holding that a motion for new trial may be filed before
entry of judgment. See Dunn v. Truck World, Inc.
, 929 F.2d 311,
313 (7th Cir. 1991) (If . . . the question [is whether the loser
may file a motion for new trial] before the entry of judgment, then
the answer is easy. It may. Rule 59 says that the motion must
come 'not later than 10 days after entry of the judgment.' A
pre-judgment motion satisfies this requirement.); Douglas v. Union
, 311 F.2d 182, 184-85 (4th Cir. 1962) (The wording
of Rule 59(b) was designed to be broad enough to permit the motionto be made both before and after the entry of judgment. . . . [W]e
think the defendant's motion to set aside the verdicts and grant a
new trial [made before entry of judgment] was timely made and was
in substantial compliance with the pertinent Federal Rules of Civil
Procedure.); see also Lewis v. U. S. Postal Service
, 840 F.2d 712,
713-14 (9th Cir. 1988) (motion to reconsider pursuant to Rule 59(e)
was timely when filed before the entry of judgment); Fed. R. Civ.
P. 59 advisory committee's note, 161 F.R.D 160 (1995) (The phrase
'no later than' [in Rule 59] is used_rather than 'within'_to
include post-judgment motions that sometimes are filed before
actual entry of the judgment by the clerk.); 11 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure
§ 2812 at 135
(2d ed. 1995) ([T]here is nothing to prevent making a motion for
a new trial before judgment has been entered.). But see
Stephenson v. Calpine Conifers II, Ltd.
, 652 F.2d 808, 812 (9th
Cir. 1981) ([W]e do not think a Rule 59(e) motion could have been
entertained [in this case]. Our conclusion in this regard is based
on the fact that no judgments were ever entered in favor of
[defendants], and on the language of Rule 59(e), which we think
clearly contemplates entry of judgment as a predicate to any
motion.); Pedigo v. Unum Life Ins. Co. of America
, 180 F.R.D. 324,
328 (E.D. Tenn. 1997) (citing Rule 59 and declaring plaintiff's
motion for new trial a nullity because it was filed before entry of
judgment but subsequently denying the motion on its merits), aff'd
on other grounds
145 F.3d 804 (6th Cir. 1998). We reconcile Watson
with the federal authorities by concluding
that though a motion for new trial may be filed
before entry of
judgment, the trial court does not have jurisdiction to hear and
determine the motion until after entry of judgment. As Stephenson
, were we to permit Rule 59(e) motions without entry of
judgment, litigants could obtain appellate review of partial
judgments by simply appealing a Rule 59(e) order, completely
by-passing the requirements [that only final judgments may be
appealed from.] 652 F.2d at 811. This caution is well-taken when
the trial court rules on a motion for a new trial or to alter or
amend a judgment prior to entry of judgment in the cause. However,
no such concern arises here because the trial court first entered
the judgment on 7 September 2007, then heard the Rule 59 motion on
10 September 2007 and entered the order denying a new trial on 18
September 2007. Therefore we conclude that the trial court had
jurisdiction and the motion for new trial was properly before the
trial court. Accordingly, we will review on the merits the order
denying plaintiff's motion for a new trial.
B. Standard of Review
The standard of review for denial of a Rule 59 motion is well-
According to Rule 59, a new trial may
granted for the reasons enumerated in the
Rule. By using the word may
, Rule 59
expressly grants the trial court the
discretion to determine whether a new trial
should be granted. Generally, therefore, the
trial court's decision on a motion for a new
trial under Rule 59 will not be disturbed on
appeal, absent abuse of discretion. [This
Court] recognize[s] a narrow exception to thegeneral rule, applying a de novo
review to a motion for a new trial pursuant to
Rule 59(a)(8), which is an error in law
occurring at the trial and objected to by the
party making the motion.
Greene v. Royster
, ___ N.C. App. ___, ___, 652 S.E.2d 277, 282
(2007) (citations, quotation marks, brackets and footnote in
original omitted) (emphasis added).
C. Motion Pursuant to Rule 59(a)(7)
Plaintiff contends the trial court improperly denied his
motion for a new trial because the evidence was insufficient to
justify the jury's verdict. Plaintiff argues that the testimony
of plaintiff's designated expert witness, Dr. Kilde, was
unequivocal and conclusive. Plaintiff contends that because
defendant did not put forth any evidence, the testimony of Dr.
Kilde was determinative and the jury could not reasonably have
found in defendant's favor on the evidence before it. We disagree.
A motion for new trial pursuant to Rule 59(a)(7) does not
involve a question of law, therefore it is reviewed for abuse of
, ___ N.C. App. at ___, 652 S.E.2d at 282. The
trial court may be reversed for abuse of discretion only upon a
showing that its actions are manifestly unsupported by reason.
Davis v. Davis
, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006)
(citations and quotation marks omitted). In ruling on a Rule
59(a)(7) motion, the trial court should set aside a jury verdict
only in those exceptional situations where the verdict will result
in a miscarriage of justice[,] Strum v. Greenville Timberline,
, ___ N.C. App. ___, ___, 652 S.E.2d 307, 310 (2007) (citation,quotation marks and ellipses omitted), because [i]t is the jury's
function to weigh the evidence and to determine the credibility of
(citation and quotation marks omitted).
Even though evidence is uncontradicted, the credibility of
the evidence is exclusively for the jury. Coltrane v. Lamb
N.C. App. 654, 658, 257 S.E.2d 445, 447 (1979). Furthermore, the
jury is allowed to minimize or wholly disregard the testimony
given by plaintiffs' medical experts if they do not find it
credible. Albrecht v. Dorsett
, 131 N.C. App. 502, 506, 508 S.E.2d
319, 322 (1998). In Albrecht
, the defendant did not bring forth an
expert to contradict the testimony of the plaintiff's expert, but
on cross-examination the plaintiff's experts gave contradicting
responses to their direct testimony. Id.
Contrary to plaintiff's argument, Dr. Kilde's testimony was
not unequivocal. Dr. Kilde testified in a deposition that was
shown to the jury at trial regarding the causes of facial nerve
palsy and his examination of plaintiff as follows: Plaintiff was
diagnosed with facial nerve palsy, which is commonly known as
Bell's Palsy. Facial nerve palsy may be idiopathic, meaning it
occurs via virus without reason, or it may be trauma-induced. Dr.
Kilde testified that he could not differentiate between a classic
viral Bell's Palsy and a traumatic Bell's Palsy on a physical
exam. Dr. Kilde testified that there was no evidence plaintiff
sustained any fractures to his skull. Dr. Kilde did not
definitively state that plaintiff's facial nerve palsy was causedby the accident. On cross-examination Dr. Kilde admitted that the
majority of Bell's Palsy cases are not related to traumas.
While Dr. Kilde's testimony on cross-examination did not
directly contradict his previous statements, it did leave room for
doubt regarding the cause of plaintiff's nerve palsy, doubt which
the jury was free to resolve in defendant's favor. The equivocal
testimony of Dr. Kilde together with evidence that defendant waited
almost a month to seek medical treatment was sufficient to justify
the jury's verdict that defendant's actions were not the cause of
plaintiff's injuries. Even though reasonable minds might have
differed as to the cause of plaintiff's injuries, the trial court's
denial of the motion for new trial did not constitute an abuse of
, 42 N.C. App. at 658, 257 S.E.2d at 447-48.
D. Motion pursuant to Rule 59(a)(8)
Plaintiff claims the trial court erred in not granting his
motion for new trial on the basis of two evidentiary issues:
[p]laintiff [(1)] was forced to redact information from evidence
contrary to law and [(2)] was not allowed to testify as to his
reasons for not seeking treatment immediately following the
accident. He contends that a trial court's evidentiary rulings
are questions of law; therefore the evidentiary rulings should be
reviewed de novo
. However, we do not reach the merits of either
Rule 59(a)(8) provides that a new trial may be granted if an
error in law occurr[ed] at the trial and
[was] objected to
party making the motion. N.C. Gen. Stat. § 1A-1, Rule 59(a)(8)(emphasis added).
It is well-settled that a party must preserve
the exclusion of evidence for appellate review by making a specific
offer of proof unless the significance of the evidence is
ascertainable from the record. Dennis
, 341 N.C. at 102, 459
S.E.2d at 714. Applying the rule and reasoning of Dennis
59, we conclude that an offer of proof is required to constitute a
sufficient objection under Rule 59(a)(8) when the error alleged is
the exclusion of evidence.
, plaintiff made no offer of proof as to the other
testimony he contends was erroneously excluded by the trial court.
Nunn v. Allen
, 154 N.C. App. 523, 530, 574 S.E.2d 35, 40 (2002),
disc. review denied
, 356 N.C. 675, 577 S.E.2d 630 (2003).
Plaintiff did not offer Trooper Walter's unredacted accident report
into evidence at trial. Likewise, plaintiff made no offer of proof
as to any evidence of his financial condition other than what had
already been admitted by the trial court. Absent a sufficient
objection pursuant to Rule 59(a)(8) we conclude the trial court did
not err when it failed to grant plaintiff a new trial on either of
his evidentiary grounds.
We conclude that plaintiff did not preserve for appellate
review any of his assignments of error arising from the trial. As
to his Rule 59 motion, we conclude that the trial court did not
abuse its discretion when it denied plaintiff a new trial on the
grounds that there was insufficient evidence to support the jury's
verdict or err when it failed to grant plaintiff a new trial onevidentiary grounds. Accordingly, the judgment and order of the
trial court are affirmed.
Judge McCULLOUGH concurs.
Judge McGEE concurs with a separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2008
No. 06 CVS 304
INGRID DIANE MARKS,
McGEE, Judge, concurring.
I concur in the majority opinion in full and write separately
only to reiterate that our decision in this case should not be
perceived as being inconsistent with the holding in Watson v.
Dixon, 130 N.C. App. 47, 502 S.E.2d 15 (1998). To the extent that
the Watson Court's statement that "Rules 50 and 59 of our Rules of
Civil Procedure implicitly provide that these post-trial motions
cannot be filed until after entry of judgment" was not necessary to
a determination of the issue before the Court, Watson, N.C. App. at
51, 502 S.E.2d at 19, said statement was dicta and, therefore, is
not binding on the specific issue addressed in Section IV.A. of the
opinion in the present case.
We wish to emphasize that our ruling in defendant's favor
does not imply recognition of a reverse collateral
source rule in any way. As far as we can tell, no such rule
exists. While the well-established collateral source rule
excludes evidence that the plaintiff's injury was compensated from
another source, Badgett v. Davis
, 104 N.C. App. 760, 763, 411
S.E.2d 200, 202 (1991), disc. review denied
, 331 N.C. 284, 417
S.E.2d 248 (1992), we are not aware of a reverse collateral source
rule which categorically excludes evidence of a plaintiff's
overall financial condition or lack of another source for
compensation for his injuries.
The North Carolina Rules of Civil Procedure are, for the
most part, verbatim recitations of the federal rules. Decisions
under the federal rules are thus pertinent for guidance and
enlightenment in developing the philosophy of the North Carolina
rules. Turner v. Duke University
, 325 N.C. 152, 164, 381 S.E.2d
706, 713 (1989) (citations omitted).
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