In a 5–4 [correction: 4-5-1] decision in Wright v. Royal Carpet Services, the Mississippi Court of Appeals ruled on Tuesday that a party who loses a motion in limine waives their objection to the admission of the disputed evidence by being the first to refer to the evidence at trial. The case was an appeal from a defense verdict in the Lowndes County Circuit Court. The plaintiff alleged in the case that the defendant was responsible for mold that developed in her house.
The issue of whether the majority is really the majority is discussed here.
Before trial, the plaintiff moved to exclude evidence of liability insurance under the collateral source rule. The trial court denied the motion because the issue was relevant to the defendant’s defense that plaintiff failed to mitigate her damages. All nine judges agreed that this ruling by the trial court was proper and I have no criticism of it.
But the five judge majority ruled that plaintiff waived the issue on appeal by being the first to raise the subject of insurance at trial. Judge Roberts wrote for the majority and was joined by Judges Myers, Griffis, Ishee and Irving (in result only with no separate opinion). The Court ruled that Quinn v. State, 873 So. 2d 1033 (Miss. App. 2003) was on point and that the issue was “procedurally barred by her failure to raise a contemporaneous objection at trial.”
Judge Maxwell dissented in an opinion joined by Judges King, Lee, Barnes and Carlton. The dissent cited several Mississippi Supreme Court cases that held that where a judge has already ruled on the evidence, a party does not waive an objection by being the first to mention it at trial in order to attempt to take the sting out of the evidence. The dissent characterized the situation as one where the trial court makes an adverse ruling on the motion in limine and the party adjusts their trial strategy by introducing the evidence to limit its ill effects on the jury.
The dissent states:
I believe Wright was entitled to play the hand the court dealt her and that she is not procedurally barred from asserting these issues on appeal.
I agree with the dissent.
First, Quin is not “on point.” Quin did not deal with a situation where a party did not object at trial to the admissibility of evidence where the court had ruled it admissible in ruling on a motion in limine. Quin dealt with the opposite. In Quin, the State violated a motion in limine ruling at trial and the court found that the defendant waived the issue by not objecting at trial:
The State did in fact violate the motion in limine regarding the amount of money Quinn had on her person by specifically questioning Brister about the matter. However, the record is devoid of any objection by Quinn when such question was asked of Brister. Therefore we find that an issue that is not properly brought to the attention of the trial court by appropriate timely objection is waived. Carr v. State, 655 So. 2d 824, 832 (Miss. 1995). The supreme court has repeatedly held that "if no contemporaneous objection is made, the error, if any, is waived." Id.
There was no violation of a motion in limine in Wright. Instead, plaintiff adjusted her trial strategy to account for the court’s prior ruling.
Second, the dissent’s position has superior support in the case law than does the majority’s position. The majority cites one case that arguably does not apply at all. The dissent cites several Mississippi Supreme Court cases that support the dissent’s view.
Third, the majority ignores “reality on the ground” in the courtroom. it has been my experience that trial judges get annoyed fast when lawyers repeatedly object on the same issue. Trial judges seem to consider the issue to be preserved for appeal once an objection has been made and an adverse ruling issued. A motion in limine that has been ruled on should count as lodging an objection and in my experience, it has. I have seen plenty of times when a lawyer stands up and asks: “judge, I lost on my motion in limine, I don’t have to keep objecting do I?” Invariably the answer is “no—your objection is noted in the record” and usually the opposing attorney is shaking his/her head in agreement. Lawyers should not have to keep objecting repeatedly for fear of waiving the objection. It slows trials down and annoys both the judge and jury.
Finally, a valid reason for filing a motion in limine is to determine what evidence will be in play at trial. The party that loses should be entitled to adjust their trial strategy to account for the ruling. A party being the first to mention damning evidence is a trial strategy that is routinely taught in trial practice courses and practiced in the courtroom. According to the Court of Appeals, you cannot do it in Mississippi because if you do, you have waived your objection to the evidence.
That doesn’t seem fair. I agree with the dissent’s analogy that at that point, you are simply playing the hand that you are dealt.
I would like to hear what other trial attorneys think about this decision.
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