Ex Parte Kent

• Citation: 379 S.C. 633,666 S.E.2d 921
• Decision Date: 28 August 2008
• Docket Number: No. 4434.,4434.
• Court: Court of Appeals of South Carolina
• Parties: Ex parte Joe W. KENT, Appellant/Respondent. Leroy E. Capps and Harriette Capps, Respondents, v. South Carolina Department of Transportation, Respondent/Appellant.

666 S.E.2d 921

379 S.C. 633

Ex parte Joe W. KENT, Appellant/Respondent.

Leroy E. Capps and Harriette Capps, Respondents, v. South Carolina Department of Transportation, Respondent/Appellant.

No. 4434.

Court of Appeals of South Carolina.

Submitted May 1, 2008.

Decided August 28, 2008.

Charles E. Carpenter, Jr., and Carmen V. Ganjehsani, both of Columbia, for Appellant-Respondent.

William P. Hatfield, of Florence, for Respondents.

D. Malloy McEachin, of Florence, for Respondent-Appellants.

WILLIAMS, J.

In this case, the trial court granted a new trial and issued sanctions for contempt. We affirm in part and reverse in part.

FACTS

This case arises from a motor vehicle accident. A tractor trailer truck driven by Bobby Connor (Connor)¹ made a turn while on a detour road. While making the turn, Connor traversed into the opposing lane of travel. Leroy E. Capps and Harriette Capps (collectively the Capps) were traveling in the opposing lane when the tractor trailer collided with the Capps' vehicle. The Capps filed suit against Connor and the South Carolina Department of Transportation (the SCDOT).²

As a basis of their suit, the Capps alleged the SCDOT: (1) knowingly selected a route which could not safely accommodate tractor trailers because the tractor trailers would encroach into the opposing lane of travel; (2) failed to place advance warning signs alerting oncoming motorists of this danger; and (3) failed to modify the detour route to make it safer or failed to choose a safer alternative route.

During the trial, the SCDOT attempted to assert Connor's superseding negligence as a defense. In support of this defense, the SCDOT retained the services of Joe Kent (Kent). Kent is an expert in accident reconstruction and highway engineering related to accidents. Kent testified that an accident report was important in forming the foundation for his opinions.

When asked what factors within the accident report he relied on in arriving at his conclusion, Kent responded, "The orientation of the vehicles and the motion of the vehicles .... There was also an estimated speed ... of 45 [MPH] for Mr. Capps and five [MPH] for Mr. Conner.... I also noted (sic) that from this report that Mr. Conner was cited for failure to yield right of way." The Capps immediately moved for a mistrial, arguing evidence of whether Connor received a ticket was inadmissible. The trial court denied the Capps' motion for a mistrial but did issue a curative instruction to the jury. Additionally, the trial court issued contempt sanctions in the amount of $1,500 against Kent. Initially, the trial court ordered Kent to pay this amount to the Florence County Humane Society. Subsequently, the trial court determined that payment to the Humane Society did "not further the ends of justice" and ordered payment be made to the Capps' counsel.

The jury returned a verdict in favor of the SCDOT. The Capps moved for a new trial pursuant to Rule 59, SCRCP, and separately under the thirteenth juror doctrine. The Capps specifically asked the trial court to reconsider its denial of the Capps' motion for a mistrial. The trial court granted the Capps' motion for a new trial. Kent and the SCDOT appeal the trial court's rulings. We address each parties' argument in turn.

A. Kent's appeal

Kent argues the trial court committed reversible error when it issued contempt sanctions against him. We agree.³

The determination of contempt ordinarily rests within the sound discretion of the trial judge. State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct.App.1994). Contempt is an extreme measure and the power to find an individual in contempt is not to be lightly asserted. Id. at 128, 447 S.E.2d at 216. Contempt results from the willful disobedience of a court order and before a person may be held in contempt, the record must be clear and specific as to acts or conduct upon which the contempt is based. Id. at 129, 447 S.E.2d at 217. A willful act is an act "done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say with bad purpose either to disobey or disregard the law." Id. (internal quotations omitted). If the primary purpose of the sanctions imposed is to preserve the court's authority and to punish for disobedience of its orders, the contempt is considered criminal. Id. at 128, 447 S.E.2d at 217. Conversely, if the purpose of the sanctions is to coerce obedience to a court order, the contempt is civil. Id. at 129, 447 S.E.2d at 217.

In the instant case, the trial court issued contempt sanctions upon Kent on the basis that Kent deliberately gave inadmissible testimony in the form of Connor's citation. In issuing contempt sanctions, the trial court reasoned that Kent had substantial and continuous involvement in court proceedings as an expert witness over a number of years and should have known that evidence regarding a citation was inadmissible. The following colloquy during the trial indicates the trial court made no inquiry to determine Kent's knowledge regarding the admissibility or inadmissibility of a citation.

Q: Did you ... review ... the accident report in regard to this case?

[Kent]: I did.

Q: Did that ... have any significance to you in your evaluation?

A: It does. It has basically a description of the vehicles. It has a description of the motions of the vehicles and also it helps clarify the pictures of the accident scene taken by the State Patrol right after that accident that I reviewed. And it reveals in the narrative portion— [Counsel for the Capps]: I'm going to object. That's hearsay, if your honor please.

[Counsel for the SCDOT]: Your honor, may I respond now?

The Court: Yes, sir.

[Counsel for the SCDOT]: Let me get the rule out but under the rule an expert is entitled to rely on hearsay.

The Court: There is a distinction between relying on it and publishing it counsel.

[Counsel for the Capps]: Plus there's a specific statute.

The Court: What says [sic] you? What say you to that?

[Counsel for the SCDOT]: Your honor I think he would be entitled to testify if he had figures regarding speed for instance. I think he would be able to rely on that and say that's what he relied on in regard to—to a speed. I think he would be able to testify as to how he arrived at his opinion just as the plaintiff's expert testified relying on hearsay.

The Court: All right. Counsel, I'm going to overrule your objection and allow that. Again the basis of his opinion is for the jury to determine whether or not that opinion is credible or believable. The court will allow that. You may proceed [Counsel for the SCDOT].

[Counsel for the SCDOT]: Thank you, your honor.

Q: In ... examining the accident report were there factors that you relied on in arriving at your conclusion in this case?

A: There were.

Q: All right, sir. And ... what were those?

A: The orientation of the vehicles and the motion of the vehicles as described in the narrative portion and as shown in the diagram. There also was an estimated speed listed by the investigating officer of 45 miles per hour for Mr. Capps and fives miles an hour for Mr. Conner who was driving the tractor trailer who pulled out onto Highway 51. I also noted that—from this report that Mr. Conner was cited for failure to yield right of way.

(emphasis added)

Based upon the testimony at trial and the evidence in the record, we find there is not sufficient evidence to suggest that Kent, in fact, knew the testimony was inadmissible or that he willfully disobeyed a court order. See Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982) ("Contempt results from the willful disobedience of an order of the court, and before a person may be held in contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based."); see also State v. Passmore, 363 S.C. 568, 571-72, 611 S.E.2d 273, 275 (Ct.App.2005) (applying the requirement of willfulness in the context of criminal contempt). Furthermore, there was no court order forbidding Kent's testimony. In fact, the trial court allowed Kent to testify after overruling the Capps' objection regarding Kent's ability to rely on the narrative portion of the accident report. Kent was not asked a question to which there was a sustained objection and thereafter answered without a ruling from the trial court. Rather, the trial court overruled the objection and allowed Kent to testify.

While we are mindful of the trial court's concern and recognize the possibility of such knowledge of inadmissible evidence by an individual who regularly appears in court, we nonetheless find the extent of such knowledge for the purposes of determining willfulness must be sufficiently established by the record prior to an imposition of a contempt sanction. The extent of Kent's knowledge was not established in the record and may not be established by speculation. Accordingly, we must confine our review to the record presented. Thus, we hold the trial court's decision to impose contempt sanctions upon Kent lacks evidentiary support and we reverse the sanction.⁴ Having adjudicated Kent's appeal, we now turn our attention to the SCDOT's appeal.

B. The SCDOT's appeal

The SCDOT appeals the trial court's grant of a new trial arguing the court misapplied the thirteenth juror doctrine and the court's application of the thirteenth juror doctrine was controlled by an error of law. We need not address this issue.

In the instant case, the trial court granted a new trial based on two separate grounds: (1) pursuant to Rule 59, SCRCP; and (2) pursuant to the court's authority under the thirteenth juror doctrine. On appeal, the SCDOT challenges only one of these grounds: the trial court's reliance on the thirteenth juror doctrine. Since the trial court granted a new trial based on Rule 59, SCRCP, and separately under the thirteenth juror...