Opinion
No. COA11–724.
2012-05-1
ALLEN DESIGN ASSOCIATES, INC., Plaintiff, v. Amanda COMBS, Defendant.
Griffin, Brunson & Wood, L.L.P., by Gregory J. Wood, for plaintiff-appellee. Helfing & Jones, P.C., by Kenneth I. Helfing, for defendant-appellant.
Appeal by defendant from judgment entered 2 November 2010 by Judge Charles C. Lamm in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 November 2011. Griffin, Brunson & Wood, L.L.P., by Gregory J. Wood, for plaintiff-appellee. Helfing & Jones, P.C., by Kenneth I. Helfing, for defendant-appellant.
GEER, Judge.
This appeal arises out of a dispute between plaintiff Allen Design Associates, Inc. (“Allen Design”) and defendant Amanda Combs over a contract to perform remodeling work on a residence located in Charlotte, North Carolina. Ms. Combs appeals from a jury verdict awarding Allen Design damages for breach of contract. Ms. Combs argues only that the trial court improperly excluded evidence that Allen Design's president had been arrested for assault on a female. Because Ms. Combs failed to preserve the issue for appeal and because she has, in any event, failed to demonstrate that the evidence was admissible under Rule 404(b) of the North Carolina Rules of Evidence, we find no error in Ms. Combs' trial.
Facts
On 16 June 2009, Ms. Combs and Allen Design, acting through its president Robert Allen, signed a contract for remodeling work on Ms. Combs' home with an expected total cost of $64,790.00. With a change order, the cost for the work to be performed decreased to $61,836.00.
Construction began on about 21 June 2009. By 11 November 2009, the work performed had passed all applicable city inspections, and the Certificate of Occupancy (“CO”) had been issued. Ms. Combs moved back into the home the week of 23 November 2009.
Allen Design claims that once the CO was issued, the contract work was complete. Ms. Combs testified, however, that despite the issuance of the CO, work still remained to be completed, including tiling on the back of the stove and in the shower; work under the vanities where there were exposed pipes; exposed insulation where wood “doesn't go flush to the walls”; and the re-sanding and re-polyurethaning of the floors.
At some point, Mr. Allen and Ms. Combs met at the house to discuss a punch list. Mr. Allen testified this meeting occurred sometime between mid-October and 10 November 2009. According to Mr. Allen, the punch list included cabinets and drawers that were not closing properly, moving a showerhead, moving a thermostat, painting the walls, and adding more polyurethane on the floors. According to Mr. Allen, Allen Design received no requests for additional work after 11 November 2009, and all the punch list work was completed except moving the thermostat and repairing some crown molding. The thermostat had to be moved later because the HVAC person had difficulties getting in touch with Ms. Combs. Mr. Allen testified that Ms. Combs never mentioned any of the defects that she raised at trial, and he did not have any contact with Ms. Combs in December.
Ms. Combs, however, testified that the punch list meeting occurred on an unspecified date in December. She testified that the last time one of the workers was in her house was 19 December 2009, when the thermostat was moved. She said she also called Mr. Allen on that day because the worker tripped and fell in the attic, causing a piece of crown molding to be damaged, and she wanted it fixed before the holidays. She testified she also notified him of multiple electrical problems sometime in December. Ms. Combs acknowledged that there was nothing in writing dated 11 November 2009 or later requesting that Allen Design perform any corrective work.
On 21 December 2009, Ms. Combs placed a $10,000.00 check in Mr. Allen's mailbox, but she subsequently stopped payment on that check. Neither party presented any evidence of any contact between the parties between 21 December 2009 and 12 January 2010.
Because $16,656.00 remained due under the contract, Allen Design demanded full payment in writing on 12 January 2010 and placed a lien on the property on 13 January 2010. When Ms. Combs did not pay the demanded amount, Allen Design filed suit on 4 February 2010 for breach of contract, recovery in quantum meruit, and enforcement of the lien. On or about 11 March 2010, Ms. Combs filed an answer including a counterclaim for breach of contract. She alleged that Allen Design's work contained numerous flaws and defects as well as life and safety threatening conditions. Ms. Combs also claimed that she feared for her safety and, therefore, had refused to allow Allen Design to correct its work.
At trial, the jury found that Ms. Combs breached her contract with Allen Design and that Allen Design was entitled to $15,149.00. The jury also found that Allen Design did not breach the contract by failing to complete the construction project in a workmanlike manner. On 2 November 2010, the trial court entered the following judgment based on the jury's verdict:
6. From June 16, 2009 through November 20, 2009, the Plaintiff contracted with the Defendant for the furnishing of labor and materials on the Property.
7. The Plaintiff has furnished all labor and materials during this period.
8. Despite due demand from Plaintiff, the Defendant has failed and refused to pay the Plaintiff for the furnishing of labor and materials incorporated into the Property. The Plaintiff's first date of furnishing of labor and materials on the Property was June 16, 2009.
9. The Plaintiff's last date of furnishing of labor and materials on the Property was November 20, 2009.
The trial court then concluded as a matter of law that Allen Design had a lien on Ms. Combs' property that related back to 16 June 2009 and that Allen Design was entitled to foreclose on the lien. Ms. Combs timely appealed to this Court.
Discussion
Ms. Combs' sole contention on appeal is that the trial court erred in “excluding evidence concerning Robert Allen's arrest and evidence which tended to show Robert Allen may have engaged in the acts of communication of a threat or assault, the details of which were known to [Ms. Combs].” She contends that this “evidence was relevant and material to [Ms. Combs'] state of mind and showed why [she] did not allow [Allen Design] back on her property to complete work in December 2009.” Had this evidence been allowed, Ms. Combs argues, the jury would likely have concluded that Allen Design did not perform its work in a workmanlike manner.
Allen Design filed a motion in limine on 8 October 2010 seeking an order excluding any evidence of Mr. Allen's arrest on 19 December 2009. The State had since dismissed the charges, and a petition for order of expunction was pending. Allen Design argued that the evidence was inadmissible under Rule 401 and Rule 404(b) of the Rules of Evidence.
Before trial, the trial court heard argument on the motion in limine. Allen Design's counsel noted that Ms. Combs' witness list included Mr. Allen's wife (Alice Allen) and Ms. Shannon Turner. Ms. Combs' counsel explained to the trial court that Ms. Turner is an acquaintance of Ms. Combs, and she texted Ms. Combs that Mr. Allen had been arrested on 19 December 2009 for assaulting Ms. Turner. After the texts, Ms. Turner also spoke with Ms. Combs regarding the alleged assault.
Ms. Combs' counsel argued that evidence of Ms. Combs' knowledge of the assault and arrest was relevant because Mr. Allen had been scaring her throughout the remodeling project and this information confirmed to Ms. Combs that Mr. Allen was prone to attacking women. For that reason, Ms. Combs did not allow Mr. Allen to return to the house to perform any corrective work. Allen Design's counsel responded that the work on the house was completed five weeks before the arrest, and there was no request for additional or corrective work once the job was completed.
After hearing that there was a factual disagreement regarding when work was last done at the house, the trial court ruled:
Well, I'm going to allow the motion in limine except with to the extent that Defendant may testify that—depending on how the evidence goes, what it shows as to her state of mind. Before you intend to ask her about that, Mr. Helfing [defense counsel], I'm going to require you to alert the Court first so the Court can make a ruling on that at that time, after I've heard the evidence.
The trial court further ruled that voir dire would occur if either Ms. Turner or Ms. Allen were called to testify and that any specifics regarding the alleged assault or anything about Mr. Allen and his wife's personal relationship was not relevant.
After carefully reviewing Ms. Combs' brief on appeal, it is not clear to us whether Ms. Combs is arguing that the trial court erred in excluding Ms. Turner's and Ms. Allen's testimony regarding the assault. In any event, any issue regarding the two women's testimony was not preserved for review because Ms. Combs did not seek to admit that testimony at trial. As this Court has explained, “[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 granted).” T & T Dev. Co. v. Southern Nat'l Bank of S.C., 125 N.C.App. 600, 602, 481 S .E.2d 347, 349 (1997).
Ms. Turner was not called as a witness at all. Although Ms. Allen did testify, she addressed only bookkeeping matters and was not asked about the arrest.
With respect to Ms. Combs' own testimony, she began by testifying that Allen Design did not perform its work properly; that when she voiced her concerns, Mr. Allen did not react professionally; and that Mr. Allen became defensive, agitated, loud, boisterous, and once, during a discussion, pounded on the shower faucet. She continued:
Q. Was there ever a time that you were actually concerned for your safety?
A. Yes, there was.
Q. What happened?
A. Mr.
MR. WOOD: Objection, Your Honor. Could we be heard?
The jury was then excused.
Allen Design's counsel requested voir dire if any of the topics covered by the motion in limine were going to be discussed. Ms. Combs' counsel responded, however: “The line of questioning that we're about to go into is Mr. [sic] Combs' perception of her own safety, based on what she actually observed from Mr. Allen and not regarding Shannon Turner's incident or the fight with the girlfriend, Your Honor.” In other words, counsel expressly denied any intent to elicit information from Ms. Combs regarding what she had heard from Ms. Turner regarding the assault and arrest. Based on defense counsel's representation, Allen Design's counsel did not conduct voir dire, and the trial court recalled the jury without making any ruling.
When the jury returned, Ms. Combs' attorney renewed Ms. Combs' direct examination:
Q. Ms. Combs, going back to what we were discussing. We were talking about your personal safety and your experiences with Mr. Allen. Did there come a time that you personally became concerned about your safety?
A. Yes.
Q. Okay. Can you tell us about how you became concerned? I'll rephrase that.
What led you to believe that your safety might be in jeopardy?
A. I had known of Robert Allen to be confrontational in recent history with someone that I was very familiar with.
MR. WOOD: Objection.
THE COURT: Objection sustained. Members of the jury, do not consider. He asked you what you observed in your interaction with Mr. Allen that caused you to be concerned about your personal safety.
A. Robert Allen was very confrontational with myself on the job and would raise his voice and be very belligerent at times when I would question his work.
During the hearing on the motion in limine, the trial court had ruled that it might allow Ms. Combs to testify about her state of mind depending on the evidence presented. The court directed counsel to alert it before asking questions so that it could make its ruling on the admissibility of the testimony. Nevertheless, following the above testimony, Ms. Combs' attorney did not address the trial court's rephrasing of the question and never advised the trial court that he was intending to specifically question Ms. Combs about the text and phone call from Ms. Turner. Ms. Combs, therefore, never obtained any actual ruling on the admissibility of her testimony in violation of Rule 10(a)(1) of the Rules of Appellate Procedure, which requires not only that a party make an objection or motion, but also that “the complaining party ... obtain a ruling upon the party's request, objection, or motion.”
Moreover, the record contains no offer of proof regarding what Ms. Combs would testify if asked. The issue of the admissibility of Ms. Combs' testimony regarding her knowledge of the assault and arrest was not preserved for appeal. See Xiong v. Marks, 193 N.C.App. 644, 648, 668 S.E.2d 594, 597 (2008) (holding plaintiff waived appellate review of grant of a motion in limine when he failed to make offer of proof during trial). Compare State v. Hernendez, 184 N.C.App. 344, 347 n. 3, 646 S.E.2d 579, 582 n. 3 (2007) (noting that defendant properly preserved his objection to trial court's grant of the State's motion in limine where he “requested voir dire examination of the challenged witnesses and made offers of proof of the testimony he sought to have admitted into evidence”).
Because of the failure to properly preserve the issue, we do not know what the trial court would have ruled if the issue was squarely before it. Even if the issue were properly before us, Ms. Combs has failed to show that such testimony would have been admissible.
The admissibility of the evidence is governed by Rule 404(b) of the Rules of Evidence, which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Our Supreme Court has held that evidence of other crimes “is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.” State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852–53 (1995).
The determination whether evidence was properly admitted under Rule 404(b) involves a three-step test. First, is the evidence relevant for some purpose other than to show that a witness has the propensity for the type of conduct for which he is being tried? Second, is that purpose relevant to an issue material to the pending case? Third, is the probative value of the evidence substantially outweighed by the danger of unfair prejudice pursuant to Rule 403? State v. Foust, ––– N.C.App. ––––, ––––, ––– S.E.2d ––––, ––––, 2012 WL 1293213, *4, 2012 N.C.App. LEXIS 512, *9–*10 (Apr. 17, 2012).
Ms. Combs argues that her testimony was admissible for a proper purpose under Rule 404(b): showing her state of mind when refusing to allow Allen Design to re-enter the house. We agree that is a proper purpose. See, e.g., State v. Bynum, 111 N.C.App. 845, 849, 433 S.E.2d 778, 780–81 (1993) (finding admissible testimony that incest victim was scared of her stepfather and that was reason for her delay in reporting incidents to her mother); State v. Scarborough, 92 N.C.App. 422, 429, 374 S.E.2d 620, 624 (1988) (Greene, J., dissenting) (concluding that victim's statement that she did not scream or fight because she knew “ ‘what [defendant] had done to other girls' “ was admissible not as propensity evidence but to show that “her will had been overcome in part by her fears for her safety”), rev'd for reasons stated in the dissent,324 N.C. 542, 379 S.E.2d 857 (1989).
It is also apparent that Ms. Combs' reason for not allowing Allen Design an opportunity to correct its work was relevant. The judge instructed the jury:
In this case the plaintiff contends and the defendant denies that the plaintiff performed his obligations under the contract; that there were no material conditions precedent to the defendant's obligation to perform; that the defendant had prevented ... the plaintiff performing a condition precedent to the defendant's obligation to perform by refusing to allow him to return and correct items that were on the punch list without reasonable excuse.
The plaintiff further contends and the defendant denies that the defendant failed to abide by a material term of the contract by not allowing Plaintiff to complete the punch list and make final payment on the contract.
(Emphasis added.) The jury instructions—focusing on whether Ms. Combs wrongfully refused to allow Allen Design to return and correct any problems—placed in issue whether Ms. Combs had a reasonable excuse. Consequently, her explanation and her state of mind were relevant to the issue of who breached the contract.
The question remains, however, whether Ms. Combs showed that her testimony regarding her receiving on 20 December 2009 information about the assault and arrest was relevant to the issue of Ms. Combs' explanation for not allowing Allen Design to return to her home. Ms. Combs' testimony was somewhat confusing.
In some of her testimony, she seemed to be complaining that Allen Design did not come back on the property to make repairs, such as when she complained of broken crown molding on 19 December, which she testified she wanted repaired prior to the holidays. She stated at another point:
Q. Ms. Combs, did Mr. Allen ever attempt to come back to repair any of the work after December?
A. No, he did not.
Q. Did he ever send anyone to come inspect the home?
A. No, he did not.
Q. Did he ever ask to come back and see the home?
A. No, he did not.
On the other hand, Ms. Combs also testified that she did not want Allen Design to return, but gave an explanation unrelated to any fear for her safety. When asked why she stopped payment on the check delivered on 21 December—after she knew about the assault arrest—Ms. Combs explained: “When you pay for work to be done, you expect it to be right. It's like taking your car in to have it fixed at a shop. If they installed the door upside down, yes, they completed the work and they installed the door, but it's upside down. Do you want that shop to continue to work on your vehicle? No.”
On cross examination, Ms. Combs was asked several times about requesting corrective work and about specific issues she had complained about at trial:
Q. Okay. Did either you and/or your attorney send anything in writing to Mr. Allen or Mr. Allen's counsel requesting that any work be performed?
A. No. Because as I stated before, when work is done faulty, I don't want someone coming back to the house to attempt to remedy it.
....
Q. My question is, at any time did you ever request corrective work to be done with respect to the heating and air conditioning?
A. When the work is so poor to begin with—
In short, when Ms. Combs acknowledged not allowing Allen Design to return, her explanation was that their work was so poor, she did not want them to come back.
Her attorney then tried to resurrect the safety issue:
Q. Were there other reasons why you didn't want him back on the property?
A. Yes.
Q. What were those other reasons?
A. Him being very antagonistic.
Thus, even when prompted by her counsel, Ms. Combs did not testify that she did not let Mr. Allen back on the property because she was afraid for her safety. Without any testimony that Ms. Combs feared for her safety—as opposed to finding Mr. Allen “antagonistic”—testimony that she had heard Mr. Allen was arrested for assault on a female was not relevant.
Even if Ms. Combs' characterization of Mr. Allen as “very antagonistic” could be viewed as saying she feared him, she was still required to show that the particular “bad act” information that she sought to admit—her knowledge of the arrest—had a “tendency to make [her fear for her safety] more probable or less probable than it would be without the evidence.” N.C.R. Evid. 401. This Court reviews questions of relevancy de novo, but accords deference to the trial court's ruling. State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (“A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.”), cert. denied,––– U.S. ––––, 181 L.Ed.2d 529, 132 S.Ct. 816 (2011).
Although Ms. Combs argues that her state of mind is relevant, she does not specifically demonstrate why her knowledge on 20 December 2009—when she learned of the arrest for assault—was pertinent. On appeal, Ms. Combs states that work halted in December 2009 and that she learned of the arrest in December 2009, but she does not specify any particular dates in December. She does not point to any testimony or any other basis for a court to conclude that she learned of the arrest prior to her halting Allen Design's work or prior to refusing to allow them to return. Given this lack of evidence temporally relating Ms. Combs' knowledge of the arrest to her decision not to allow Allen Design to return, she has failed to show how her state of mind on 20 December 2009 was relevant. No basis exists for disturbing the jury's verdict.
No error. Judges ROBERT C. HUNTER and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).