{ "id": 8359021, "name": "ASHEVILLE MALL, INC. v. F. W. WOOLWORTH COMPANY", "name_abbreviation": "Asheville Mall, Inc. v. F. W. Woolworth Co.", "decision_date": "1986-12-16", "docket_number": "No. 8628SC700", "first_page": "532", "last_page": "535", "citations": [ { "type": "official", "cite": "83 N.C. App. 532" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "152 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562898 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0259-01" ] }, { "cite": "331 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526759 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0130-01" ] } ], "analysis": { "cardinality": 298, "char_count": 5697, "ocr_confidence": 0.779, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.751739966306916 }, "sha256": "6cc3c9313fccea36881c079022da50e473b3a6b228c055b34480ba16b8212006", "simhash": "1:870fd021d8875d18", "word_count": 921 }, "last_updated": "2023-07-14T16:07:52.921422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Eagles concur." ], "parties": [ "ASHEVILLE MALL, INC. v. F. W. WOOLWORTH COMPANY" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiff contends that \u201cthe trial court erred in ruling that the defendant\u2019s expert witness, attorney Gwynn Radeker, was \u2018unavailable\u2019 and in admitting into evidence the witness Radeker\u2019s testimony given at the first trial of this action.\u201d We agree that the trial court erred in ruling that Radeker was unavailable and in admitting his testimony, but we find that plaintiff was not prejudiced by the admission of this testimony.\nUnder Rule 804 of the North Carolina Rules of Evidence, the exception to the rule against hearsay for former testimony requires that the declarant be unavailable. Unavailability includes situations where the court exempts the declarant from testifying on grounds of privilege. G.S. 8C-1, Rule 804(a)(1).\nBecause Radeker\u2019s law firm had been retained by plaintiff subsequent to the first trial, the trial judge, over plaintiffs objection, concluded that Radeker\u2019s testimony at the second trial would create a conflict of interest and require Radeker to violate the code of ethics of an attorney. On the basis of this conclusion, the trial judge found Radeker to be an unavailable witness under 804(a)(1) and admitted his testimony from the first trial.\nWe hold that the assertion of the conflict of interest in this case is not a privilege under Rule 804(a)(1). The trial court erred in finding Radeker to be unavailable and in admitting his testimony from the first trial.\nPlaintiff asserts that the admission of Radeker\u2019s prior trial testimony was prejudicial because he testified that the lease was not ambiguous. Plaintiff argues that it was prejudiced by the testimony because this Court subsequently held that the lease was ambiguous in Asheville Mall, Inc. v. F. W. Woolworth Co., 76 N.C. App. 130, 331 S.E. 2d 772 (1985).\nWe find that any possible prejudice to plaintiff was cured by the trial judge\u2019s charge to the jury in which he stated that the lease agreement was in fact ambiguous.\nPlaintiff also argues that it was prejudiced because Radeker\u2019s testimony at the first trial was based on an expurgated version of the lease rather than the original lease. After reviewing the record and accompanying exhibits, we find no prejudicial error in the admission of Radeker\u2019s prior trial testimony.\nTherefore, even though it was error for the trial court to admit Radeker\u2019s testimony, the error was harmless and resulted in no prejudice to plaintiff.\nMoreover, we are not persuaded by plaintiffs contention that the trial court erred in denying plaintiff the right to cross-examine Radeker. Plaintiff was not denied its right of cross-examination. The cross-examination portion of Radeker\u2019s testimony was admitted into evidence. Therefore, plaintiffs argument that it was deprived of the right to cross-examine Radeker is without merit.\nPlaintiff also contends that the trial court erred in striking certain testimony of plaintiffs witness, R. L. Coleman.\nThe exclusion of testimony is not prejudicial when the same witness has testified to facts with substantially the same meaning. See Terrell v. Life Ins. Co. of Va., 269 N.C. 259, 152 S.E. 2d 196 (1967).\nAssuming arguendo that it was error for the trial court to strike the testimony, we find said error to be harmless inasmuch as substantially the same information was placed before the jury by Coleman\u2019s further testimony.\nWe have examined plaintiffs remaining assignments of error and find them to be without merit.\nNo error.\nJudges Johnson and Eagles concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Riddle, Kelly & Cagle, by E. Glenn Kelly, for plaintiff appellant.", "Van Winkle, Buck, Wall, Starnes & Davis, by Larry McDevitt and Michelle Rippon, for defendant appellee." ], "corrections": "", "head_matter": "ASHEVILLE MALL, INC. v. F. W. WOOLWORTH COMPANY\nNo. 8628SC700\n(Filed 16 December 1986)\nEvidence \u00a7 22\u2014 testimony at former trial \u2014 conflict of interest \u2014 witness not unavailable-harmless error\nThe trial court erred in ruling that an attorney was \u201cunavailable\u201d and in admitting the attorney\u2019s testimony given at a previous trial on the ground that the attorney\u2019s testimony at the second trial would create a conflict of interest because his firm had been retained by plaintiff subsequent to the first trial, since the assertion of a conflict of interest does not constitute a privilege under N.C.6.S. \u00a7 8C-1, Rule 804(a)(1). However, any possible prejudice to plaintiff from the attorney\u2019s testimony that a lease between the parties was unambiguous was cured by the trial judge\u2019s charge to the jury in which he stated that the lease was in fact ambiguous.\nAppeal by plaintiff from Ferrell, Judge. Judgment entered 3 March 1986 in Superior Court, Buncombe County. Heard in the Court of Appeals 29 October 1986.\nPlaintiff brought this action seeking to enjoin defendant-lessee from altering the north wall of the leased premises. Defendant alleged that under the terms of the lease, alterations of the north wall are permitted. Plaintiff alleged that the wall is not part of the demised premises and that defendant has no right to make alterations.\nThe first trial in this case resulted in a judgment for defendant. On appeal, however, this Court held that the lease was ambiguous and ordered a new trial in which parol testimony concerning the parties\u2019 negotiations could be admitted.\nAt the second trial, plaintiff and defendant presented witnesses who testified as to the intended meaning of the terms of the lease. Defendant also presented the prior trial testimony of Gwynn Radeker, a real estate attorney, who, due to a perceived conflict of interest, was reluctant to testify at the second trial.\nAt the conclusion of the evidence, the jury determined that the north wall was in fact leased to defendant. From the judgment for defendant, plaintiff appeals.\nRiddle, Kelly & Cagle, by E. Glenn Kelly, for plaintiff appellant.\nVan Winkle, Buck, Wall, Starnes & Davis, by Larry McDevitt and Michelle Rippon, for defendant appellee." }, "file_name": "0532-01", "first_page_order": 560, "last_page_order": 563 }