Opinion
No. COA12–786.
2013-03-5
Lisa CRISWELL, Plaintiff v. Robert Hunter WHEATLEY, Ronald Wheatley and Robbie Lentz Scarboro, Defendants.
Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith for plaintiff-appellant. Robinson Elliott & Smith, by William C. Robinson and Katherine A. Tenfelde for defendants-appellees.
Appeal by plaintiff from judgment entered 11 October 2011 by Judge Anna Mills Wagoner in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 November 2012. Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith for plaintiff-appellant. Robinson Elliott & Smith, by William C. Robinson and Katherine A. Tenfelde for defendants-appellees.
STEELMAN, Judge.
Where the plaintiff on appeal complains that the trial court overruled her objection to the introduction of evidence as to her settlement with another defendant, but the same evidence was later presented without objection, the prior objection was waived. Where plaintiff cites no case authority and failed to object to her examination by defense counsel concerning allegations contained in her complaint, that argument is dismissed.
I. Factual and Procedural History
On 16 January 2007, Lisa Criswell (“plaintiff”) was a passenger in a motor vehicle being operated by Robbie Scarboro (“Scarboro”). There was a collision between the vehicle operated by Scarboro and another vehicle operated by Robert Wheatley, and owned by Ronald Wheatley. Plaintiff was injured as a result of the collision. Each driver contended that the light was green when they entered the intersection. Plaintiff and Scarboro married following the accident.
On 2 November 2009, plaintiff filed suit against Robert and Ronald Wheatley (collectively, “defendants”), and against Scarboro, seeking monetary damages for personal injuries. At the pretrial conference, plaintiff announced that she had reached a settlement with Scarboro, and he was dismissed as a defendant.
At the close of evidence, defendant, Ronald Wheatley, moved for directed verdict, which was granted by the trial court. On 25 August 2011, the jury found that plaintiff was injured by the negligence of Robert Wheatley, and awarded damages of $7,500.00. On 2 September 2011, plaintiff filed a motion for a new trial. On 11 October 2011, the trial court found that defendants were entitled to a $15,000.00 credit as a result of plaintiff's settlement with Scarboro. As a result of the credit, the trial court held that plaintiff was not entitled to recover anything from Ronald Wheatley, and awarded costs to defendants in the amount of $1,718.60. On 12 December 2011, the court denied plaintiff's motion for a new trial.
Plaintiff appeals.
II. Evidence of Settlement with Scarboro
In her first argument, plaintiff contends that the trial court erred in permitting defendants to elicit testimony of plaintiff's settlement with Scarboro. We disagree.
Although plaintiff's complaint alleged that plaintiff's injuries were caused by the negligence and gross negligence of both Scarboro and Robert Wheatley, at trial she testified that the light was green when the vehicle in which she was a passenger entered the intersection. When cross-examined about the apparent discrepancy, she blamed the allegations in the complaint on her prior counsel. Defense counsel then asked if plaintiff had in fact accepted money on behalf of Scarboro the week prior to trial. Plaintiff's counsel objected and the trial court overruled the objection.
Plaintiff on appeal contends that it was error to overrule her objection based upon the collateral source rule. Plaintiff's brief states that “plaintiff again objected when the defense attorney on re-cross made the same references of the plaintiff obtaining money from what was a collateral source.” We have reviewed the transcript of the re-cross examination of plaintiff by defense counsel. Plaintiff was asked whether she had sued Scarboro, and had received money from him. However, contrary to plaintiff's assertion, there was no objection made by plaintiff to any of the re-cross examination.
“[I]t is the well-established rule that the admission of evidence without objection waives any prior or subsequent objection to the admission of evidence of a similar character.” J.T. Russell & Sons, Inc. v. Silver Birch Pond L.L.C., ––– N.C.App. ––––, ––––, 721 S.E.2d 699, 702 (2011) (quoting Venters v. Albritton, 184 N.C.App. 230, 240, 645 S.E.2d 839, 846 (2007)); see also 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 22 (7th Ed.2011).
In the instant case, the question upon re-cross examination, to which plaintiff did not object, dealt with the identical subject matter as the previously objected-to question. This objection was waived by the admission of the later evidence without objection.
This argument is without merit.
III. Cross–Examination of Plaintiff Concerning Allegations in Complaint
In her second argument, plaintiff contends that the trial court erred in permitting defendants to impeach plaintiff with the allegations of negligence on the part of Scarboro contained in her complaint. We disagree.
Plaintiff cites no authority for this argument other than a vague reference to Rule 403 of the North Carolina Rules of Civil Procedure. During the cross-examination of plaintiff by defense counsel, the following exchange took place:
BY MR. ROBINSON
Q. Ms. Criswell, in your lawsuit against Mr. Scarboro, did you allege that he was negligent?
A. That's what the attorney put in there.
Q. That was your lawsuit? Yes?
MR. SMITH: Objection, Your Honor. It's not something she recognized at the time. It was served as an affidavit. It cannot be
THE COURT: All right. Rephrase your question so we can move long.
BY MR. ROBINSON
Q. Isn't it in fact true, Ms. Criswell, you sued Mr. Scarboro and in your lawsuit you alleged he was negligent and grossly negligent in his driving?
A. The attorney that I had before is the one that filed the lawsuit. And from my understanding, he said he did it only for the purposes of insurance.
There was no objection to the question following the directive of the trial court for defense counsel to rephrase the question. Without a subsequent objection, the issue of the admissibility of this evidence is not preserved for appellate review, and is dismissed. See Lathon v. Cumberland Cty., 184 N.C.App. 62, 68, 646 S.E.2d 565, 568 (2007) (holding that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”); see alsoN.C.R.App. P. 10(a)(1).
This argument is dismissed.
IV. Denial of Plaintiff's Motion for a New Trial
In her third argument, plaintiff contends that the trial court erred in denying plaintiff's motion for a new trial. We disagree.
Again, plaintiff cites no authority for this argument. Since this argument is based upon the arguments previously discussed in Parts II and III of this opinion, which we have held to be without merit, we also hold that this argument is without merit.
NO ERROR IN PART, DISMISSED IN PART. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).