Busillo v. City of N. Charleston
| Decision Date | 03 July 2013 |
| Docket Number | No. 5155.,Appellate Case No. 2012–206986.,5155. |
| Court | South Carolina Court of Appeals |
| Parties | Kristin A. BUSILLO, Respondent, v. CITY OF NORTH CHARLESTON, Appellant. |
OPINION TEXT STARTS HERE
Christopher Thomas Dorsel, Senn Legal, LLC, of Charleston, for Appellant.
Keith Edward Robinson, Law Offices of William A. Green, of North Charleston, for Respondent.
Kristin Busillo won a jury verdict of $16,500.00 for damages arising out of an automobile accident with a City of North Charleston police officer. The city argues on appeal that the trial court erred in making two evidentiary rulings and in not using a special verdict form. We affirm.
Officer Ryan Terrell attempted a U-turn after a traffic stop and collided with a vehicle driven by Busillo. Busillo filed a claim for property damage with the city's insurance company. An arbitration panel ruled the city was responsible for $4,184.70 in repairs to Busillo's vehicle and for the cost of a rental car.
Busillo also filed this action in circuit court. At trial, she submitted evidence of bodily injuries and medical costs. She also submitted evidence of property damage to her car. This evidence included a summary of expenses showing $6,034.70 in property damage, and the testimony of an expert witness, Frank Troy, who testified to the extent of the depreciation to Busillo's vehicle caused by the wreck. Following the charge to the jury but before the jury began deliberations, the city asked the trial court to consider using a special verdict form. The court denied this request. After the jury returned a verdict for Busillo, the trial court applied the arbitration award as a setoff against the verdict, but denied the city's motions for a new trial and judgment notwithstanding the verdict.
The city argues on appeal that the trial court erred in admitting the testimony of Frank Troy. Specifically, the city argues the trial court abused its discretion by (1) not “consider[ing] that the type of witness and content of the witness's testimony were not disclosed until the day of trial,” (2) not “inquir[ing] into [Busillo's] excuse for [her] Rule 33(b) [SCRCP] violation,” and (3) not “consider[ing] the surprise and prejudice to [the city].” The first of these arguments was not adequately presented to the trial court, and the second and third were not presented to the trial court at all. Therefore, we find the city's arguments are not preserved for appellate review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (); Armstrong v. Collins, 366 S.C. 204, 225, 621 S.E.2d 368, 378 (Ct.App.2005) ().
During a pretrial hearing, the city's lawyer stated, “The ... last thing we have is our second motion in limine ... to exclude any testimony of Frank Troy.” The trial court responded, “Who is that?” and the city's lawyer stated, “He was never listed in discovery.” The court said, “Oh, this is the depreciation guy,” and the city responded, “Yeah, a fact witness or an expert witness.” The trial court stated it would “probably” let Busillo introduce Troy's testimony. The court then stated, “Let's just see how nimble you are on your feet.” The city responded, “Very good, your Honor,” and asked if the trial court intended to apply the arbitration award as a setoff. The court indicated it would, “somehow or another,” but that it would think about the issue during trial. Nothing further was mentioned regarding Troy before the trial began.
When Busillo called Troy to testify, the trial court acknowledged the city's pretrial objection by stating, “Now, this is over your objection.” During Troy's testimony, he was asked “what was your determination regarding the depreciation on Ms. Busillo's vehicle due to this automobile collision?” At that point, the city's lawyer stated only, “Objection,” but offered no grounds for the objection and did not reference his pretrial motion. The trial court overruled the objection without reference to any basis on which the objection was made. The city made no other objections during Troy's testimony.
The mere statement “objection” during a witness's testimony does not preserve any argument for appeal because such a general statement does not bring the specific grounds for the objection to the attention of the trial court. SeeRule 103(a)(1), SCRE ; State v. Byers, 392 S.C. 438, 444, 710 S.E.2d 55, 58 (2011) (); Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 ().
It is possible, however, that the context of the proceeding may make the specific ground for the objection sufficiently apparent to the trial court so that a general statement such as “objection” is enough to preserve an argument for appeal. SeeRule 103(a)(1) (); Byers, 392 S.C. at 446, 710 S.E.2d at 59 (). Because the trial court acknowledged the city's pretrial objection, we look back to that discussion as part of the context from which the trial court could have understood any specific ground for the city's objection.1
We find the grounds the city now argues on appeal were not apparent to the trial court from the context of the proceedings, including the pretrial hearing. Not only was the statement “objection” insufficient to preserve any issue, the city's statements in the pretrial hearing also were not sufficiently specific. Of the three arguments the city makes on appeal, the only one even remotely presented to the trial court in the pretrial hearing was the first—that Troy “was never listed in discovery.” However, the city (1) never indicated it served discovery on Busillo, (2) never identified which interrogatory Busillo supposedly did not answer, (3) never argued Busillo's failure to respond was intentional or willful, (4) never provided the court any basis for finding a Rule 33(b) violation,2 (5) never addressed any of the factors our courts have set out for considering the admissibility of testimony of a witness not named in discovery,3 and (6) never explained any basis on which the trial court could conclude the city was prejudiced by the late disclosure. Nor were any of these points apparent to the trial court during the pretrial hearing. Thus, the city did not provide the trial court any basis in the pretrial hearing on which the court could have excluded Troy's testimony for a discovery violation. Under these circumstances, even the pretrial objection was not “made ... with sufficient specificity to inform the circuit court judge of the point.” Byers, 392 S.C. at 444, 710 S.E.2d at 58.
Because none of the city's arguments on appeal as to the admissibility of Troy's testimony were properly raised to the trial court, the arguments are not preserved for appellate review.
The city also argues the trial court erred in admitting “evidence about [Busillo's] property damage” because “[t]hese damages had been resolved prior to trial.” During Busillo's testimony, she offered into evidence an exhibit entitled “Expenses for Kristin Busillo.” The exhibit summarized the damages Busillo claimed, breaking out “Property Damage” and “Medical Damages” in separate categories. Under the category of property damage, the exhibit read:
The city objected under Rules 402 and 403, SCRE, arguing the city's previous payment of the repair and rental car bills made property damages “not a proper element of damages.”
Like the objection to Troy's testimony, this objection was stated generally and imprecisely. We find, however, that it is preserved for appeal because the transcript reveals the trial court understood the nature of the objection and thus “the specific ground was ... apparent from the context” under Rule 103(a)(1).
The admission of evidence is within the discretion of the trial court, and the court's decision will not be reversed on appeal absent an abuse of that discretion. Weaver v. Lentz, 348 S.C. 672, 683, 561 S.E.2d 360, 366 (Ct.App.2002). “The trial court ... has wide discretion in determining the relevancy of evidence....” Davis v. Traylor, 340 S.C. 150, 155, 530 S.E.2d 385, 387 (Ct.App.2000). Similarly, a trial court has particularly wide discretion in ruling on Rule 403 objections....
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