An unpublished opinion of the North Carolina Court of Appeals does not constitute 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.

NO. COA12-1366

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

ANNE BLANCHARD, EXECUTRIX OF THE 

ESTATE OF MARY LOU BARTHAZON,

 Plaintiff,

v. Orange County

No. 09 CVS 1109

BRITTHAVEN, INC. and HILLCO, 

LTD.,

 Defendants.

Appeal by plaintiff from judgment and order entered 12 

October 2011 and 13 January 2012 by Judge Shannon R. Joseph in 

Orange County Superior Court. Heard in the Court of Appeals 23 

May 2013.

Henson & Fuerst, P.A., by Anne Duvoisin; Connor & Connor, 

LLC, by Kenneth L. Connor; and Brian G. Brooks, Attorney at 

Law, PLLC, by Brian G. Brooks, for plaintiff-appellant.

Hurley Law Office, by Michael C. Hurley and Katherine L. 

Jones, for defendants-appellees.

GEER, Judge.

Plaintiff Anne Blanchard, executrix of the Estate of Mary 

Lou Barthazon, appeals from the trial court's entry of a final 

judgment following a jury verdict in favor of defendants 
-2-

Britthaven, Inc. and Hillco, Ltd. Plaintiff had asserted claims 

for ordinary and medical negligence arising out Britthaven's 

allegedly improper care of Ms. Barthazon while she was a 

resident at Britthaven's Chapel Hill, North Carolina nursing 

home, which, plaintiff contended, resulted in Ms. Barthazon's

death. 

On appeal, plaintiff primarily argues that the trial court 

erred in excluding evidence of (1) documents produced by the 

North Carolina Department of Health and Human Services ("NC 

DHHS") following inspections of Britthaven's Chapel Hill, North 

Carolina nursing home and (2) decisions resulting from 

administrative appeals related to Ms. Barthazon's death. 

Plaintiff's arguments on appeal regarding the admissibility of 

the exhibits all hinge on plaintiff's assertion that the 

documents were relevant to prove causation. However, plaintiff

did not, at trial, seek admission of the exhibits on that basis. 

Plaintiff's appellate arguments were not, therefore, properly 

preserved at trial for appeal.

Facts

On 21 June 2004, Ms. Barthazon was admitted as a resident

to a nursing home in Chapel Hill operated by Britthaven, a 

wholly owned subsidiary of Hillco. At that time, Ms. Barthazon 

was 95 years old, was non-ambulatory, and had severe Alzheimer's 
-3-

dementia and osteoporosis, making her at risk for broken bones 

from falls. Pursuant to her resident care plan, Ms. Barthazon 

was only to be transferred from a chair to her bed by use of a 

certain mechanical lift. On 30 September 2007, Mack Weldon 

Jones, Jr., who was working for Britthaven as a certified 

nursing assistant, manually transferred Ms. Barthazon from a 

chair to her bed without the use of a mechanical lift, in 

violation of Ms. Barthazon's care plan.

Due to swelling and bruising in Ms. Barthazon's knees, 

Britthaven staff ordered an x-ray of Ms. Barthazon's knees on 13 

October 2007. The 13 October 2007 x-rays revealed that Ms. 

Barthazon had two broken femurs. Because of her condition, Ms. 

Barthazon was admitted to the University of North Carolina 

Hospital's Emergency Department on 14 October 2007. Ms. 

Barthazon died on 18 October 2007. 

On 13 July 2009, plaintiff, Ms. Barthazon's daughter, filed 

suit against defendants, asserting claims for (1) "ORDINARY 

CORPORATE NEGLIGENCE" causing Ms. Barthazon's broken femurs but 

not causing her death; (2) medical negligence causing various 

lifetime injuries and Ms. Barthazon's death; and (3) "ORDINARY 

NEGLIGENCE (NON-ADMINISTRATIVE BASIC CARE)" causing various 

lifetime injuries and Ms. Barthazon's death. The complaint also

sought to pierce the corporate veil and obtain relief against 
-4-

Britthaven's parent company, Hillco, on the basis that Hillco 

also owed duties of care to Ms. Barthazon and its breach of 

those duties caused Ms. Barthazon's injury. 

On 17 June 2011, defendants filed a motion for partial 

summary judgment on plaintiff's claims for corporate negligence, 

ordinary negligence, piercing the corporate veil, and punitive 

damages. On or about 2 August 2011, defendants filed a "MOTION 

FOR FINAL SUMMARY JUDGMENT" as to all of plaintiff's claims. 

The trial court granted in part and denied in part 

defendants' motion for summary judgment as to corporate 

negligence and granted defendants' motion for summary judgment 

as to all of plaintiff's ordinary negligence claims other than 

the corporate negligence claim.1 On or about 1 September 2011, 

the trial court entered an order deferring a ruling on 

defendants' motion for partial summary judgment as to 

 

1On 29 August 2011, the court entered an order on 

defendants' motion for partial summary judgment on the ordinary 

negligence claims which provided that "Defendants' Motion for 

Partial Summary Judgment is granted as to all of Plaintiff's 

claims for ordinary negligence that were not adjudicated as part 

of this Court's Order of August 5, 2011." The 5 August 2011 

partial summary judgment order does not appear to be included in 

the record on appeal. However, a 14 August 2011 email from the 

trial court to counsel regarding defendants' summary judgment 

motions indicates that, on 5 August 2011, the court entered an 

order granting in part and denying in part defendants' partial 

summary judgment motion as to the corporate negligence claim. 

That email also indicated that the court took defendants' 

summary judgment motion as to plaintiff's claim for punitive 

damages under advisement at that time. The trial court restated 

the content of the email during a pretrial hearing.
-5-

plaintiff's claim based on piercing the corporate veil and 

denying defendant's motion for final summary judgment. 

Although the record is not entirely clear, it appears that 

the case proceeded to trial on plaintiff's claims for medical 

negligence, corporate negligence, and liability against Hillco 

based on piercing the corporate veil. During the charge 

conference, following the presentation of all the parties' 

evidence, the trial court, on its own initiative, suggested that 

the verdict sheet set out an initial question of whether "any 

conduct" of defendants proximately caused Ms. Barthazon's 

injuries before asking the jury to decide whether defendants 

breached any duty of care towards Ms. Barthazon. 

In accordance with the court's suggestion, the first 

question on the verdict sheet asked: "Was any conduct of 

defendant Britthaven, Inc. a proximate cause of any injury to, 

or the death of, Mary Lou Barthazon?" Following deliberation, 

the jury answered that first question in the negative. The 

trial court, therefore, entered final judgment in favor of 

defendants on 12 October 2011. 

On 19 October 2011, plaintiff filed a motion for a new 

trial pursuant to Rule 59(a) of the Rules of Civil Procedure. 

The trial court denied plaintiff's motion for a new trial in an 
-6-

order entered 13 January 2012. Plaintiff timely appealed to 

this Court. 

I

Plaintiff first argues that the trial court erred by 

excluding (1) evidence of inspections (called "surveys")

conducted at Britthaven's Chapel Hill nursing home pursuant to 

state and federal regulations and (2) evidence arising out of 

Britthaven's administrative appeals from those surveys. 

Plaintiff contends that this evidence was relevant to the issue 

of causation and admissible under Rule 803(8)(c) of the Rules of 

Evidence. 

Britthaven is a long-term care facility that participates 

in the federal Medicare program. Pursuant to state and federal 

regulations, NC DHHS inspects, or "surveys," long-term care 

facilities to ensure compliance with Medicare regulations. See 

N.C. Admin. Code, tit. 10A, r. 13D.2109(a) (October 2013); 42 

C.F.R. § 488.330(a)(1)(i) (2013); 42 C.F.R. § 488.330(b)(1).

If NC DHHS finds noncompliance with federal regulations

after a survey, NC DHHS produces a statement of deficiencies 

("SOD") that outlines the specific instances of noncompliance

and the evidence on which the findings are made. NC DHHS also

certifies its findings to the federal Centers for Medicare & 

Medicaid Services ("CMS"). 42 C.F.R. § 488.330(a)(1)(i)(C).
-7-

The findings of NC DHHS surveyors are recommendations to CMS, 

which then makes its own determination regarding the long-term 

care facility's compliance with federal regulations. 42 C.F.R. 

§ 488.12 (2013).

In this case, NC DHHS conducted surveys at Britthaven's 

Chapel Hill nursing home on 19 October 2007 and 29 November 

2007. NC DHHS reported its results from the October and 

November 2007 surveys on "FORM CMS-2567" documents. Both forms

contained a summary SOD with supporting findings, and the 

November 2007 form further contained a plan of correction for 

the deficiencies found. In each form's SOD, NC DHHS reported 

noncompliance with federal Medicare regulations. 

CMS adopted NC DHHS' recommendations based on the November 

2007 survey and resulting SOD, which CMS determined superseded 

the SOD for the October 2007 survey. Findings of noncompliance 

in both surveys were based upon Mr. Jones' manual transfer of 

Ms. Barthazon from a chair to her bed in violation of Ms. 

Barthazon's care plan. 

Following completion of a survey and SOD, a facility 

subject to CMS-imposed sanctions for noncompliance may appeal, 

under certain conditions, to a federal administrative law judge 

("ALJ"). See 42 C.F.R. § 498.5 (2013). A dissatisfied party 

may further appeal the ALJ's decision to the United States 
-8-

Department of Health and Human Service's Departmental Appeals 

Board (the "Board"). See 42 C.F.R. § 498.80 (2013).

Utilizing this process, Britthaven appealed CMS' decision 

to an ALJ, and the ALJ issued a decision affirming CMS' findings 

of noncompliance with two Medicare regulations, which resulted

in immediate jeopardy to resident health and safety at the 

facility (the "ALJ decision"). Britthaven then appealed a 

single legal issue to the Board, and the Board issued a decision 

affirming the ALJ decision (the "Board decision"). 

In arguing that the trial court erred in excluding evidence 

of the surveys and the ALJ and Board decisions, plaintiff argues 

that the evidence was admissible to prove causation under Rule 

803(8)(c). We need not address whether such evidence, if 

relevant, would be admissible under the Rules of Evidence 

because review of the record shows that plaintiff never argued 

to the trial court that the exhibits were admissible to show 

causation, the sole argument made on appeal.2

 

2We note that our review of the record has revealed no 

ruling by the trial court on the admissibility of the ALJ and 

Board decisions. Although plaintiff contends that, when ruling 

upon the admissibility of the "surveys" during the 15 and 16 

August 2011 pretrial hearings, the trial court was, in fact, 

ruling upon the admissibility of not only the surveys, but also 

the ALJ and Board decisions, the specific arguments of the 

parties at trial and the trial court's rulings indicate that 

references to "surveys" were limited to the surveys alone. By 

failing to obtain a ruling from the trial court on the 

admissibility of the ALJ and Board decisions, plaintiff failed 
-9-

On 9 August 2011, defendants filed a motion in limine

seeking to exclude evidence of the findings and conclusions from 

the surveys, while on 10 August 2011, plaintiff filed a motion 

requesting that the trial court judicially notice and "admit[]

into evidence" the "surveys and ALJ opinions relating to Ms. 

Barthazon's transfer by Mack Jones." Plaintiff asserted that 

the records were "important public documents," but made no 

argument that they were relevant to causation in the written 

motion for judicial notice.

The trial court heard arguments on defendants' motion in 

limine at a 15 August 2011 pretrial hearing. At the hearing, 

the parties only argued regarding whether the surveys were 

admissible to show the applicable standard of care. Plaintiff 

did not argue at the hearing that the surveys were admissible to 

show causation. The trial court announced at the hearing that 

it was "inclined to exclude" the surveys. 

At a continuation of the hearing on the following day, 16 

August 2011, the court again addressed the admissibility of the 

 

to preserve that issue for appeal. N.C.R. App. P. 10(a)(1) 

(requiring, in order to preserve issue for appeal, that 

"complaining party . . . obtain a ruling upon the party's 

request, objection, or motion"). Nonetheless, even assuming 

that the trial court ruled that the ALJ and Board decisions were 

inadmissible, we hold that, as with the surveys, plaintiff 

failed to preserve the specific argument made on appeal since 

she failed to argue at trial that the ALJ and Board decisions

were admissible to show causation. 
-10-

surveys. Consistent with the fact that the parties had debated 

only the relevance of the surveys to the standard of care, the 

court explained that Rule 702, which addresses expert testimony 

regarding the standard of care, "gave me some pause." At the 16 

August 2011 hearing, plaintiff again failed to argue that the 

surveys and the ALJ and Board decisions were admissible to show 

causation. The trial court deferred any ruling on plaintiff's 

motion for judicial notice.3 

Plaintiff filed a motion for reconsideration of the rulings 

on defendants' motion in limine on or about 19 August 2011. The 

motion addressed admissibility of the "survey documents" and 

asserted no arguments pertaining to causation. Plaintiff has 

pointed to -- and we have found -- no ruling on the motion to 

reconsider.

Thus, although plaintiff argued, both in support of her 

motion for judicial notice and in opposition to defendants' 

motion in limine, that the surveys were admissible as evidence, 

plaintiff argued only that the surveys were admissible to show 

the applicable standard of care and any breach of that standard 

by defendants. In addition, we have found no indication in the 

 

3The record on appeal does not contain written orders 

addressing either defendant's motion in limine or plaintiff's 

motion for judicial notice.
-11-

record that plaintiff argued at trial that the surveys should be 

admitted to prove causation.4 

Rule 10(a)(1) of the Rules of Appellate Procedure provides 

that "[i]n order to preserve an issue 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 . . . ." (Emphasis 

added.) The purpose of the rule "'is to require a party to call 

the [trial] court's attention to a matter upon which he or she 

wants a ruling before he or she can assign error to the matter 

on appeal.'" Lathon v. Cumberland Cnty., 184 N.C. App. 62, 68, 

646 S.E.2d 565, 568 (2007) (quoting Reep v. Beck, 360 N.C. 34, 

37, 619 S.E.2d 497, 499 (2005)). Because plaintiff did not 

specifically argue to the trial court that the surveys should be 

 

4Plaintiff filed a motion, which was denied by the trial 

court, requesting that the trial court apply the doctrine of 

collateral estoppel to findings made in the ALJ decision as 

affirmed by the Board decision, including findings related to 

causation. This motion did not, however, address the 

admissibility of the surveys, the ALJ decision, or the Board 

decision at trial. See Rymer v. Estate of Sorrells, 127 N.C. 

App. 266, 268, 488 S.E.2d 838, 840 (1997) ("'Collateral estoppel 

precludes relitigation of an issue decided previously in 

judicial or administrative proceedings provided the party 

against whom the prior decision was asserted enjoyed a full and 

fair opportunity to litigate that issue in an earlier 

proceeding.'" (quoting In re McNallen, 62 F.3d 619, 624 (4th 

Cir. 1995))). Consequently, the collateral estoppel motion was 

not sufficient to preserve the issue raised on appeal.
-12-

admitted as relevant to causation, plaintiff did not preserve 

this issue for appeal.

We note, however, that plaintiff's motion for a new trial 

sought a new trial based upon the court's exclusion of the 

surveys and ALJ and Board decisions since findings in those 

documents supported plaintiff's "core allegations" at trial. 

Among other findings, the motion specifically referenced the 

ALJ's findings of fact regarding causation. Even if we assume -

- although it is not entirely clear from the record -- that 

plaintiff was making the same argument in the motion for a new 

trial as made on appeal, the motion for a new trial, standing 

alone, is not sufficient to preserve the issue for appeal. 

Rule 10(a)(1) of the Rules of Appellate Procedure provides 

that in order to preserve an issue for appellate review, a party 

must present a "timely request, objection, or motion," and an 

issue raised for the first time in a post-trial motion is not 

considered a timely request sufficient for appellate 

preservation. (Emphasis added.) See Hanna v. Brady, 73 N.C. 

App. 521, 528, 327 S.E.2d 22, 26 (1985) ("We do not feel that a 

motion for a new trial made under Rule 59 [of the Rules of Civil 

Procedure] is intended to serve as a substitute for the 

obligation of counsel to timely object to the jury instructions.

The obvious purpose behind the requirement of a timely objection 
-13-

is to avoid the need to completely retry a case when a judge 

could merely correct the instructions."). 

However, even if plaintiff had preserved her causation 

argument for appeal, plaintiff does not challenge in her brief 

the trial court's ruling, pursuant to Rule 403 of the Rules of 

Evidence, that any probative value of the surveys was 

substantially outweighed by the danger of confusion of the 

issues at trial. See id. ("Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by 

the danger of . . . confusion of the issues . . . ."). Because 

plaintiff has made no showing that the trial court abused its 

discretion in excluding the evidence under Rule 403, see State 

v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) ("We 

review a trial court's decision to exclude evidence under Rule 

403 for abuse of discretion."), she cannot show prejudice from 

the error she asserts on appeal. 

In sum, plaintiff failed to argue at trial that the surveys 

and the ALJ and Board decisions were admissible to show 

causation and, consequently, failed to preserve that issue for 

review. Moreover, plaintiff has not shown prejudice because she 

has failed, on appeal, to challenge the trial court's ruling 

excluding the evidence under Rule 403.
-14-

II

Plaintiff next argues that even if the surveys and the ALJ 

and Board decisions were not otherwise admissible as evidence, 

the trial court erred by not allowing plaintiff to cross-examine 

defendants' expert witness on causation, Dr. Alexander Doman, 

with those documents. Plaintiff contends that because Dr. Doman 

stated on voir dire that he had taken the documents into 

consideration when reaching his opinions, plaintiff was entitled 

to cross-examine Dr. Doman with the surveys and the ALJ and 

Board decisions. 

Rule 705 of the Rules of Evidence provides that an expert 

"may testify in terms of opinion or inference and give his 

reasons therefor without prior disclosure of the underlying 

facts or data, unless an adverse party requests otherwise, in 

which event the expert will be required to disclose such 

underlying facts or data on direct examination or voir dire 

before stating the opinion." Rule 705 states further: "The 

expert may in any event be required to disclose the underlying 

facts or data on cross-examination." 

In this case, plaintiff questioned Dr. Doman on voir dire 

regarding whether Dr. Doman had reviewed the surveys:

Q. Have you taken into account in this 

case, in arriving at your opinions, the 

conclusions of the interdisciplinary survey 

team that cited the nursing home in this 
-15-

case for multiple violations of the federal 

regulations as it related to the care of 

Mary Lou Barthazon?

A. Yes.

Q. What were the opinions that the State 

arrived at in that regard?

A. That there were some deficiencies.

Q. And on what basis do you conclude that 

that was in error?

A. I'm not expressing an opinion regarding 

federal investigations. I'm expressing 

opinions today regarding the cause of the 

fractures.

Q. What qualifies you to express opinions 

about the basis for confusion about these 

issues as opposed to merely offering your 

opinions about the cause of the injuries?

A. There is no difference. . . . I'm 

expressing an opinion as to the cause of the 

injury; and someone else is expressing the

opinion that's different from my opinion, 

apparently. People -- the jury can reach 

their conclusion as to which opinion . . . 

they choose to accept.

Plaintiff then asked the court to permit cross-examination 

of Dr. Doman before the jury regarding the content of the 

surveys:

[PLAINTIFF'S COUNSEL]: In view of the 

fact that the witness has indicated that he 

has taken into account the survey issued by 

the State and the conclusions reached 

therein with respect to his opinion, 

respectfully I ask that I be permitted to 

query him in the presence of the jury on the

contents of the survey.
-16-

THE COURT: Denied at this point.

(Emphasis added.)

On appeal, plaintiff asserts that the trial court erred in 

excluding evidence of the surveys and the ALJ and Board 

decisions because "Dr. Doman admitted on voir dire that he 

considered and reviewed the surveys and the ALJ record in 

forming his opinions." However, plaintiff questioned Dr. Doman 

only as to whether he had taken into account "the conclusions of 

the interdisciplinary survey team" and "the State." He did not 

testify whether he considered the ALJ and Board decisions. 

Plaintiff then moved the court only for permission to crossexamine Dr. Doman with "the survey issued by the State and the 

conclusions reached therein." Since plaintiff did not ask the 

court for leave to cross-examine Dr. Doman with the ALJ and 

Board decisions, plaintiff has failed to preserve for appeal any 

argument regarding cross-examination of Dr. Doman with those 

records. N.C.R. App. P. 10(a)(1). 

With respect to the surveys, we initially observe that "'an 

expert may be . . . cross-examined with respect to material 

reviewed by the expert but upon which the expert does not 

rely.'" Dep't of Transp. v. Blevins, 194 N.C. App. 637, 644, 

670 S.E.2d 621, 626 (quoting Williams v. CSX Transp., Inc., 176 

N.C. App. 330, 336, 626 S.E.2d 716, 723 (2006)), aff'd per 
-17-

curiam as modified on other grounds sub nom. N.C. Dep't of 

Transp. v. Blevins, 363 N.C. 649, 686 S.E.2d 134 (2009). Dr. 

Doman's voir dire testimony indicating he had taken into account 

the surveys was, therefore, sufficient to lay a foundation for 

plaintiff to cross-examine him regarding the contents of the 

surveys.

However, despite laying a sufficient foundation at the 

trial level for use of the evidence, plaintiff then failed to 

make any offer of proof as to what Dr. Doman's testimony would 

have been before the jury if cross-examined regarding the 

surveys. "'In order to preserve an argument on appeal which 

relates to the exclusion of evidence, including evidence 

solicited on cross-examination, the defendant must make an offer 

of proof so that the substance and significance of the excluded 

evidence is in the record.'" State v. Ryals, 179 N.C. App. 733, 

740-41, 635 S.E.2d 470, 475 (2006) (quoting State v. Ginyard,

122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996)). 

Without an offer of proof -- which could have been 

accomplished by plaintiff's counsel asking during voir dire the 

questions that he wanted to ask before the jury -- we cannot 

determine whether plaintiff was prejudiced by the trial court's 

ruling. As our Supreme Court has explained, "'the essential 

content or substance of the witness' testimony must be shown 
-18-

before we can ascertain whether prejudicial error occurred.'" 

State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010)

(quoting State v. Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138 

(2007)). See also State v. Williams, 355 N.C. 501, 534-35, 565 

S.E.2d 609, 629 (2002) (holding defendant failed to preserve for 

appeal argument that trial court erroneously sustained State's 

objection to question during cross-examination of witness when, 

on voir dire, defendant failed to make offer of proof as to what 

witness would have testified to on cross-examination had 

objection been overruled).

III

Plaintiff also argues that several other "developments in 

the conduct of the trial" made evidence of the surveys and the 

ALJ and Board decisions admissible. Specifically, plaintiff 

argues that five statements by defense counsel during jury 

selection -- four asserting that no one had decided whether 

there was any truth in plaintiff's allegations and one asserting 

that no one had made any decision about this case -- were untrue 

in light of the surveys and the ALJ and Board decisions. 

Plaintiff also argues that defense counsel's opening statement 

incorrectly framed plaintiff's allegations as, in plaintiff's 

words, "those of hysterical, over-reacting family members" when 
-19-

the evidence of the surveys and the ALJ and Board decisions 

showed her allegations to be sound. 

Plaintiff did not, however, argue at trial that the jury 

selection questions or defendants' opening statement opened the 

door for admission of the surveys and the ALJ and Board 

decisions. Although plaintiff did argue in her motion for a new 

trial that defendants' jury selection statements opened the door 

for admissibility of the evidence, her argument made for the 

first time in that motion did not give the trial court an 

opportunity to revisit, during trial, its pretrial ruling 

excluding the surveys or to make, during trial, a ruling on 

whether to exclude the ALJ and Board decisions. The argument in 

her motion for a new trial did not, therefore, preserve the 

issue for appeal. See Hanna, 73 N.C. App. at 528, 327 S.E.2d at

26. 

Plaintiff additionally contends that prejudice to her from 

exclusion of the surveys and the ALJ and Board decisions was 

compounded by defense counsel's closing argument assertion that 

Mr. Jones was fired as a scapegoat for not transferring Ms. 

Barthazon with a mechanical lift. Plaintiff objected to

defendants' closing argument in front of the jury, asserting

that the challenged statement "misstates the evidence," and the 

trial court sustained the objection. 
-20-

Because plaintiff's argument on appeal regarding whether 

the evidence was erroneously excluded was not preserved for 

appeal, the question whether the exclusion prejudiced plaintiff 

is immaterial. Moreover, the trial court sustained the 

objection, and plaintiff did not request a limiting instruction 

from the court or seek a mistrial. See Smith v. Hamrick, 159 

N.C. App. 696, 699, 583 S.E.2d 676, 679 (2003) ("[T]his Court 

has held that when an objection is made to an improper argument 

of counsel and the court sustains the objection, that court does 

not err by failing to give a curative instruction if one is not 

requested."). 

Given plaintiff's failure to request a limiting instruction 

and failure to move for a mistrial on this issue, we are not 

persuaded by plaintiff's argument that she was unduly prejudiced 

even though the trial court sustained her objection. See State 

v. Barber, 93 N.C. App. 42, 49, 376 S.E.2d 497, 501 (1989)

(rejecting argument defendant was entitled to new trial based on 

prosecutor's improper closing argument since defendant failed to 

request limiting instruction when court sustained objection to 

argument and since evidence against defendant was overwhelming).

IV

Plaintiff's final argument is that "[t]he undue prejudice 

to Plaintiff's case by the exclusion of [the surveys and the ALJ 
-21-

and Board decisions] [were] compounded and made exponentially 

greater when combined with the trial court's decision to place 

causation in a verdict sheet all by itself and outside the 

context of negligence by asking whether any 'conduct' caused 

injury to Mrs. Barthazon." While, as with the above remarks by 

defense counsel, the question of prejudice is not material given 

our determination that plaintiff failed to preserve at trial her 

arguments regarding admissibility, plaintiff's brief arguably 

challenges the propriety of the trial court's verdict sheet. 

It is well established that "[t]he form and the number of 

issues submitted to the jury is within the trial court's 

discretion." Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 80, 

598 S.E.2d 396, 404 (2004). In this case, the verdict sheet 

included eight interrogatories. The first two interrogatories 

appeared as follows:

ISSUE ONE

Was any conduct of defendant Britthaven, 

Inc. a proximate cause of any injury to, or 

the death of, Mary Lou Barthazon?

ANSWER: ____________

(If you answer Issue One "Yes," you are to 

proceed to Issue Two. If you answer Issue 

One "No," stop here. You have reached your 

verdict.)

ISSUE TWO
-22-

Was any injury to, or the death of, Mary Lou 

Barthazon proximately caused by any medical 

negligence of defendant Britthaven, Inc.?

Answer: ______________

(Proceed to Issue Three.)

The remaining six interrogatories asked: (1) whether any 

injury or death to Ms. Barthazon was caused by any "corporate 

negligence" of Britthaven; (2) whether Ms. Barthazon's death was 

proximately caused by any medical negligence of Britthaven; (3) 

what amount, if any, was Ms. Barthazon's estate entitled to 

recover by reason of her death; (4) other than injuries 

resulting in her death, was any injury to Ms. Barthazon 

proximately caused by any medical or corporate negligence of 

Britthaven; (5) what amount, if any, was Ms. Barthazon's estate

entitled to recover for injury to Ms. Barthazon other than 

injuries resulting in her death; and (6) did Hillco control 

Britthaven with regard to the acts or omissions that injured Ms. 

Barthazon.

The jury answered the first interrogatory in the negative

and, accordingly, proceeded no further. Plaintiff contends that 

by making the causation issue the first interrogatory, the trial 

court placed "substantial and unwarranted emphasis" on 

causation. She further asserts that the verdict sheet's

organization harmed her since it allowed the jury to decide 

causation first, without first addressing duty and breach, and 
-23-

therefore "truncated" the "collective sharing process that 

allows for correction of errors in memory or factual errors and 

that may lead to changes of opinion or strengthening of initial 

opinions." 

We initially note that plaintiff cites no authority in 

support of her arguments. However, Rule 28(b)(6) of the Rules 

of Appellate Procedure provides that "[t]he body of the argument 

. . . shall contain citations of the authorities upon which the 

appellant relies." Because of the omission of any authority, 

this Court would be entitled under the Rules of Appellate 

Procedure to decline to address this issue. See Works v. Works, 

___ N.C. App. ___, ___, 719 S.E.2d 218, 222 (2011) ("Moreover, 

we decline to consider the remaining assertions raised in wife's 

brief for which wife failed to present supporting legal 

authority. See N.C.R.App. P. 28(b)(6).").

In any event, this Court has previously rejected the 

argument that a defendant was prejudiced by the "order of the 

charges on the verdict form" when the form "began with the most 

serious charge and listed alternative verdicts in descending 

order of severity, contrary to defendant's request that the 

possible verdicts be listed in the opposite order." State v. 

Bates, 70 N.C. App. 477, 480, 319 S.E.2d 683, 685 (1984), aff'd 

on other grounds, 313 N.C. 580, 330 S.E.2d 200 (1985). The 
-24-

Court in Bates reasoned that the defendant "cite[d] no authority 

in support of this contention and we know of none." Id. 

Here, we similarly find plaintiff's unsupported argument 

regarding the order of interrogatories on the verdict sheet to 

be unpersuasive. See also State v. Watson, 169 N.C. App. 331, 

339, 610 S.E.2d 472, 478 (2005) ("There is no rule in North 

Carolina indicating the order choices must be listed on verdict 

sheets."). 

Plaintiff additionally argues that the first interrogatory

-- asking whether any "conduct" of Britthaven caused Ms. 

Barthazon's injury or death -- was improper since "conduct" is 

not part of the three-part negligence inquiry of duty, breach, 

and causation. As with the prior argument regarding the order 

of the interrogatories, plaintiff cites no authority for this 

contention. Nevertheless, we fail to see how the wording of the 

first interrogatory prejudiced plaintiff. We find that the 

language -- asking broadly whether any "conduct" of Britthaven 

caused Ms. Barthazon injury -- was actually helpful to plaintiff 

since it did not limit the question to one or more acts of 

negligence but rather allowed the jury to consider any conduct 

at all of Britthaven. Plaintiff has not, therefore, shown 

prejudicial error.
-25-

No error.

Judges ELMORE and DILLON concur.

Report per Rule 30(e).