Samples v. Mitchell

Decision Date19 December 1997
Docket NumberNo. 2747,2747
Citation329 S.C. 105,495 S.E.2d 213
PartiesRose Marie SAMPLES, Appellant, v. Vincent Louis MITCHELL, Respondent.
CourtSouth Carolina Court of Appeals

Joseph S. Lyles, of Howard, Howard, Francis & Reid, Greenville, for appellant.

Amy M. Snyder and Boyd B. Nicholson, Jr., both of Haynsworth, Marion, McKay & Guerard, Greenville, for respondent.

CONNOR, Judge:

Rose Marie Samples moved for a new trial after she received an unfavorable jury verdict. The trial court denied her motion. She appeals. We reverse and remand for a new trial.


Vincent Louis Mitchell rear-ended Samples in April 1990. Mitchell admitted negligence, but contested proximate cause and damages. On April 12 and 15, 1993, Mitchell's investigator filmed a video which showed Samples removing laundry from a clothesline, watching a ball game, and using her left hand to open a gate.

Two months later, on June 10, 1993, Samples served Mitchell with standard interrogatories. Mitchell's attorney first answered the interrogatories on July 13, 1993, and subsequently sent a second set of answers on November 17, 1993. In neither did she disclose the existence of the video tape nor the name of the investigator as a potential witness.

On October 24, 1995, a week before trial, Mitchell's lawyer deposed Samples' mother, June Marie Moser, de bene esse, because she would not be available at trial. Mitchell's attorney specifically questioned Moser about Samples' ability to hang out clothes, to attend her children's sporting events, and to use the left side of her body. Immediately after the deposition, Mitchell's lawyer told Samples' lawyer about the video. That afternoon she sent him a copy.

At trial Samples' lawyer offered Moser's deposition into evidence. Subsequently, Mitchell's attorney offered the video tape, and Samples' attorney objected. The trial judge allowed the video tape over Samples' objection, but refused to allow the investigator to interpret it.


Mitchell argues in a footnote Samples failed to preserve her argument concerning the video because her counsel failed to object immediately prior to the introduction of the video tape.

Making a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997).

Despite the fact the judge in this case called the motion one in limine, he ruled on it during the trial, immediately prior to the introduction of the evidence in question. Our court has held:

Because no evidence was presented between the ruling and [the] testimony, there was no basis for the trial court to change its ruling. Thus, ... [the] motion was not a motion in limine. The trial court's ruling in this instance was in no way preliminary, but to the contrary, was a final ruling.

Accordingly, [the defendant] was not required to renew her objection to the admission of the testimony in order to preserve the issue for appeal. 1

State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410 (Ct.App.1995).

Here no opportunity existed for the court to change its ruling. Therefore, the issue was properly preserved for review.

We next inquire whether or not the surveillance video was discoverable evidence. Mitchell first claims the video was not discoverable because the standard interrogatory asked for photographs, not video tapes. The South Carolina Rules of Evidence clearly define photographs in evidentiary matters to include video tapes. Rule 1001(2), SCRE (" 'Photographs' include still photographs, X-ray films, video tapes, motion pictures or other similar methods of recording information."). These rules became effective September 3, 1995. Rule 1103(b), SCRE. Therefore, they were clearly in effect when this case was tried on October 30-31, 1995. 2

Mitchell's lawyer further alleges she did not have to disclose the tape because she did not believe it related to Mitchell's defense. If the tape related to the claim, Mitchell had a duty to at least disclose the existence of it. Rule 26(b)(1), SCRCP. In South Carolina the scope of discovery is very broad and "an objection on relevance grounds is likely to limit only the most excessive discovery request." J. Flanagan, South Carolina Civil Procedure 216 (2d ed.1996).

Although the specific question of the discovery of surveillance videos has never been raised in South Carolina, it has been dealt with elsewhere. Professor Moore comments:

This question seems to arise most often when the defendant in a personal injury case has videotaped or collected some other visual evidence of the plaintiff after the accident to impeach the plaintiff on the extent of his or her injuries. Discovery of the evidence is generally permitted.

6 James Wm. Moore et al., Moore's Federal Practice, § 26.41[b] (3d ed.1997).

Many states that have wrestled with the question have held at least the existence of the video tape must be revealed in response to discovery requests. Florida has held "upon request a party must reveal the existence of any surveillance information he possesses whether or not it is intended to be presented at trial." Dodson v. Persell, 390 So.2d 704 (Fla.1980). Similarly, the Supreme Court of Appeals of West Virginia reasoned, "[k]nowledge of the mere existence of this tape would have substantially contributed to the quality of the plaintiffs' trial strategy and their specific preparation of their star witness...." McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788, 796 n. 9 (1995).

Given the broad interpretation of relevancy by our courts, a defendant's surveillance video of the plaintiff was clearly relevant to a personal injury claim in which negligence was admitted and damages were contested. A review of the record makes it clear Mitchell's counsel found the video useful in drafting her questions for Moser, yet she denied this benefit to Samples' counsel. Furthermore, in this case, Mitchell failed to disclose even the existence of the video tape, thereby providing an inaccurate response to Samples' interrogatories. 3

Some states have discussed whether or not surveillance tapes which will not be introduced at trial constitute work product. 6 James Wm. Moore et. al., Moore's Federal Practice, § 26.41[b] (3d ed. 1997). The tape in this case, however, was admitted into evidence, and Mitchell has never claimed protection under the work product rule.

Furthermore, the work product rule would not excuse the failure to disclose the existence of the video tape here. If Mitchell's attorney believed Samples had no right to this evidence, either because of relevancy or because of the work product rule, she should have either objected to the interrogatory or disclosed the existence, but not the content, of the evidence and moved for a protective order. 4 Rule 33(a), SCRCP; Rule 26(c), SCRCP. 5

Having determined Mitchell's conduct was sanctionable, we must now decide if the trial judge abused his discretion in choosing a sanction. Jackson v. H. & S. Oil Co., Inc., 263 S.C. 407, 211 S.E.2d 223 (1975); Laney v. Hefley, 262 S.C. 54, 202 S.E.2d 12 (1974); Downey v. Dixon, 294 S.C. 42, 362 S.E.2d 317 (Ct.App.1987).

In deciding what sanction to impose for failure to disclose evidence during the discovery process, the trial court should weigh the nature of the interrogatories, the discovery posture of the case, willfulness, and the degree of prejudice. Laney, 262 S.C. at 60, 202 S.E.2d at 15; Moran v. Jones, 281 S.C. 270, 276, 315 S.E.2d 136, 139-40 (Ct.App.1984).

Although the trial judge in this case correctly framed the issue as discovery abuse, he did not weigh the required factors. A failure to exercise discretion amounts to an abuse of that discretion. Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred."); Balloon Plantation v. Head Balloons, 303 S.C. 152, 155, 399 S.E.2d 439, 441 (Ct.App.1990) (quoting State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) ("It is an equal abuse of discretion to refuse to exercise discretionary authority when it is warranted as it is to exercise the discretion improperly.")).

Mitchell argues the trial judge's decision to limit the testimony of the investigator evidences discretion. This decision in and of itself does not show the judge exercised discretion especially where the Supreme Court has articulated the legal analysis which should be utilized. State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) ("[T]he mere recital of the discretionary decision is not sufficient to bring into operation a determination that discretion was exercised. It should be stated on what basis that discretion was exercised.").

Precedent reveals a more meaningful sanction was required in this case. Cf. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991) (Plaintiffs properly responded with information known at time, and promptly notified defendant once expert's identity became known.); Bramlette v. Charter Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990) (error to exclude witness's testimony where witness called to rebut unanticipated trial testimony, which was not revealed to other side despite specific inquiries during discovery); Brandi v. Brandi, 302 S.C. 353, 396 S.E.2d 124 (Ct.App.1990) (does not appear counsel willfully violated the rule by failing to supplement interrogatories when record supports witness was discovered the night before trial); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982) (no abuse of discretion in trial judge disallowing unexpected expert witness where no reason...

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