Hall v. Hotel L'Europe, Inc. , 69 N.C. App. 664 ( 1984 )

318 S.E.2d 99 (1984)

David S. HALL
v.
HOTEL L'EUROPE, INC., d/b/a Hotel Europa.

No. 8314SC934.

Court of Appeals of North Carolina.

July 17, 1984.

Nye, Mitchell, Jarvis & Bugg by John E. Bugg, Durham, for plaintiff-appellee.

Powe, Porter & Alphin by Eugene F. Dauchert, Jr., Durham, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in denying its motion in limine seeking to prohibit the introduction of parol evidence establishing a fixed term of employment. A motion in limine is used to exclude prejudicial matter in advance of the trial and is addressed to the trial judge's discretion. State v. Rouf, 296 N.C. 623, 252 S.E.2d 720 (1979). No prejudice resulted from the trial judge's denial of the motion since the defendant retained his right to object to such evidence at trial.

Defendant contends that the motion should have been granted in order to prevent the introduction of evidence violative of the parol evidence rule. The parol evidence rule prohibits the admission of parol evidence to vary, add to, or contradict a written instrument intended to be the final integration of the transaction. 2 Brandis, North Carolina Evidence, § 251, at 266 (1982). In the event that a particular writing is only a partial integration of the agreement, "it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing." Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953).

The employment contract in question here was partly written, and partly parol in nature. The parties stipulated prior to trial, as well as admitted in their testimony, that there were numerous other significant and essential terms of the plaintiff's employment agreement with the defendant which had been agreed to by the parties, but were not contained in the "Employment Letter of Agreement," the alleged final employment contract. The parol evidence rule presumes finality with respect only to the written terms in the agreement. Other significant and essential terms, the presence of which was stipulated by the parties, can be established by using parol evidence without violating the rule. Brandis, supra, § 253 at 272. The "Employment Letter of Agreement" did not contain a definite term for the duration of the employment, but the evidence indicated that it was negotiated between the parties for the employment to last not less than one year. Thus, the term of employment was properly established with parol evidence. Additionally, the defendant effectively waived his defense of the inadmissibility of such evidence by failing to object during the trial to the admission of testimony and stipulations establishing these other essential facts. See Griffin v. Wheeler-Leonard & Co., Inc., 290 N.C. 185, 225 S.E.2d 557 (1976), and Brandis, supra, § 27 at 98.

This Court decided a remarkably similar case in Beal v. Supply Co., 36 N.C.App. 505, 244 S.E.2d 463 (1978). In Beal, the trial court was reversed for entering a judgment notwithstanding the verdict when the judge felt that certain testimony which should have been excluded under the parole evidence rule was erroneously considered by the jury. That jury determined, on the basis of parol evidence, that an enforceable employment agreement of a fixed duration was entered between the parties. Stipulations there indicated that the written document did not constitute the entire agreement between the parties. The only pertinent term given in the document was a specified annual salary. Admittedly, such a provision could not establish a fixed duration of employment, but it was determined to be evidence of an intent to fix a definite duration. The admission of parol evidence that tended to prove the fixed duration was, therefore, deemed proper. See Annot., 93 A.L.R. 3d 659, § 4 (1979). When confronted with the same circumstance in the trial at bar, Judge McLelland rightly permitted the introduction of the parol evidence.

In light of Beal, we find that defendant's motion in limine was properly denied and the parol evidence concerning the fixed duration of the employment agreement was properly admitted.

Defendant also contends that the trial court erred in granting the plaintiff's motion in limine excluding evidence of unemployment benefits received by the plaintiff. We find no merit in this contention. Since there is no applicable North Carolina authority, defendant relies on a "general rule" that an employer can deduct social security and annuity payments received by an employee from damages owed to that employee for wrongful discharge. This may be the case, however, we adopt the position of reliable authorities from other jurisdictions that relate directly to wrongful discharge issues and do not allow the employer to deduct such amounts from damages owed. See 22 Am.Jur.2d Damages § 209, p. 293 (1965) citing Bang v. International Sisal Co., 212 Minn. 135, 4 N.W.2d 113 (1942); Sporn v. Celebrity, Inc., 129 N.J.Super. 449, 324 A.2d 71 (1974); and Schwarze v. Solo Cup Co., 112 Ill.App.3d 632, 68 Ill. Dec. 228, 445 N.E.2d 872 (1983).

Finally, defendant contends that the trial court erred in denying its requested jury issues and instructions on mitigation of damages. After a careful examination of the requested jury instructions and the judge's charge to the jury, we find no merit to the contention. A close reading reveals that Judge McLelland instructed the jury on all issues submitted by defendant, at times quoting directly from the requested set of instructions.

No error.

JOHNSON and EAGLES, JJ., concur.