Byerly v. Wesley

1

John Byerly, individually and as personal representative of the Estate of Susan B. Byerly, Appellant, v. Thomas Wesley, Respondent.

No. 2023-UP-282

Appellate Case No. 2019-002082

Court of Appeals of South Carolina

August 2, 2023

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR

Submitted November 1, 2022

Appeal from Horry County R. Markley Dennis, Jr., Circuit Court Judge

Joseph Clay Hopkins, Esquire, of Charleston, for Appellant.

Stephanie Anthony, Esquire, of Weston Craig Anthony, LLC, of Mount Pleasant, for Respondent.

PER CURIAM.

In this personal injury action, Appellant John Byerly (John) seeks review of the circuit court's decisions to (1) allow Respondent Thomas Wesley (Wesley) to cross-examine John using his deceased wife's medical records; and (2) deny John's request to instruct the jury about a landlord's non-delegable duty and potential vicarious liability for a contractor's improper repairs to a tenant's property. We affirm.

FACTS/PROCEDURAL HISTORY

John and his wife Susan Byerly (Susan) were tenants of half of a duplex owned by Wesley. On October 8, 2016, a hurricane caused a tree to fall on the roof of the duplex. Wesley contracted with Brown Rooftops, LLC (Brown), who subcontracted with Bay Service Contracting, LLC (Bay) to extract the tree and perform necessary repairs to the duplex. Six railroad ties, which were previously used on the property as a barrier for vehicles, were moved to facilitate access to the property as it underwent repairs. Three of the railroad ties were placed alongside the driveway where John and Susan regularly parked their vehicles.

On October 11, 2016, Susan tripped over the relocated railroad ties as she walked alongside the passenger side of one of the couple's vehicles. As a result of the fall, Susan fractured her ankle and tore the labrum in her hip.

On May 8, 2017, Susan brought a negligence action against Wesley Brown, and Bay, seeking actual and punitive damages.^[1] On May 26, 2018, Susan died of unrelated health problems, and John continued this action as the personal representative of her estate.

Before trial, John reached a settlement with Brown and Bay. John did not settle with Wesley, and the case proceeded to trial. At trial, John testified that he took Susan to the hospital from the duplex at 6:30 a.m. However, while cross-examining John Wesley's counsel represented that a medical record reflected a 12:50 p.m. check-in time.^[2] Wesley also expressed concern that John might attempt to argue a vicarious liability claim not pled in his complaint. John assured Wesley that his proposed charge to the jury did not contain language relating to vicarious liability.

John submitted a proposed jury charge stating that a landlord has a non-delegable duty to see that a repair is done properly and remains vicariously liable for injuries caused by a contractor's improper repairs to a tenant's property. The circuit court rejected John's proposed charge because it referenced (1) vicarious liability and (2) a duty to make and keep proper repairs rather than the duty not to create "dangerous, hazardous conditions."

At the trial's conclusion, the jury found that Wesley was not negligent and therefore not liable for Susan's injuries. This appeal followed.

STANDARD OF REVIEW

"[T]he admission or exclusion of evidence in general is within the sound discretion of the [circuit] court." Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506, 509 (2005). "[T]he [circuit] court's decision will not be disturbed on appeal absent an abuse of discretion." Id. Similarly, "[a]n appellate court will not reverse the [circuit] court's decision regarding jury instructions unless the trial court committed an abuse of discretion." Stephens v. CSX Transp., Inc., 415 S.C. 182, 197, 781 S.E.2d 534, 542 (2015) (quoting Cole v. Raut, 378 S.C. 398, 404, 663 S.E.2d 30, 33 (2008)). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law or is not supported by the evidence." Cole, 378 S.C. at 404, 663 S.E.2d at 33.

LAW/ANALYSIS

I. Admission of Evidence

John contends that the circuit court erred in allowing him to be cross-examined about Susan's medical records. John's arguments related to this issue are not preserved for review.

A. Impeachment

John first argues that the medical records at issue were not introduced into evidence and, thus, should not have been used to impeach John's testimony. We disagree and find that John failed to preserve this argument for appeal.

During the cross-examination of John, his counsel objected to Wesley's reference to a medical bill:

MR. HOPKINS: Your honor, I need to object. I don't believe she can impeach him on a document he didn't author.

THE COURT: You put it into evidence, it's subject to cross-examination. I overrule your objection.

John contends that the document noting the hospital arrival time is not the medical bill he previously introduced but rather a medical record. This contention stems from an exchange between John and counsel for Wesley in which counsel referred to both a "medical bill" and "medical records."

John argues that the medical bills introduced into evidence make no reference to the time Susan was admitted into the hospital. This assertion is not supported by the record. The medical bill and medical record are two separate documents that were combined as a single trial exhibit submitted by John as "Exhibit 2." The medical "record" portion of the exhibit references Susan's arrival time as 12:50 p.m. at three separate locations. We believe that Wesley's reference to "medical records" is referring to Exhibit 2 rather than another medical record not placed into evidence. Therefore, counsel's question referencing the "medical records" instead of the "medical bill" is irrelevant as they both were placed into evidence and marked together as "Exhibit 2."

The only stated basis for John's objection at trial was that the medical bill (or medical record) was not authored by John.^[3] This objection is only relevant if the document in question was not in evidence when Wesley asked about Susan's time of arrival. John concedes that the "Emergency Room bill for Susan Byerly was introduced into evidence, without exception." (emphasis removed). Whether John's counsel understood that the latter portion of the exhibit containing the introduced bill included a medical record is inconsequential. By placing the medical records into evidence, John "manifested an adoption or belief in [their] truth." Rule 801(d)(2), SCRE. Because the medical records had already been admitted into evidence, the circuit court was correct in ruling that their references to hospital arrival times are utilizable on cross-examination. See Rule 611(b), SCRE ("A witness may be cross-examined on any matter relevant to any issue in the case[.]"); see also State v. Sherard, 303 S.C. 172, 174399 S.E.2d 595, 596 (1991) ("It is well settled that the scope of cross-examination is within the trial judge's discretion[.]"). Accordingly, we believe John's concession that the medical documents were introduced without exception forecloses a contrary argument on appeal. Cf. TNS Mills, Inc. v.. S.C. Dep't of Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower court may not be argued on appeal.").

B. Hearsay / Prior Inconsistent Statement

John also raises arguments concerning hearsay and the failure to lay a foundation for a prior inconsistent statement. We find that these issues are not preserved on appeal.

"Issue preservation rules are designed to give the [circuit] court a fair opportunity to rule on the issues, and thus provide the [appellate c]ourt with a platform for meaningful appellate review." Stevens & Wilkinson of S.C., Inc. v. City of Columbia, 409 S.C. 563, 567, 762 S.E.2d 693, 695 (2014). "At a minimum, issue preservation requires that an issue be raised to and ruled upon by the [circuit] judge." Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011). "It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [circuit] judge to be preserved for appellate review." Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).

"In order to preserve for review an alleged error in admitting evidence[,] an objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the [circuit court]." State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001). "If a party fails to properly object, the party is procedurally barred from raising the issue on appeal." State v. Johnson, 363 S.C. 53, 58-59, 609 S.E.2d 520, 523 (2005).

John's hearsay and foundation arguments are not preserved for our review because they were not sufficiently alleged at trial with specificity. See Prioleau, 345 S.C. at 411, 548 S.E.2d at 216 (2001). ("In order to preserve for review an alleged error in admitting evidence[,] an objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the [circuit court]."). John's sole objection at trial concerned improper impeachment based on a document that John himself did not author. Because John did not raise hearsay and prior inconsistent statement issues at trial, the circuit court did not have an opportunity to rule on them.

In light of the foregoing, we find John's issues related to the medical records used in his cross-examination are not preserved for appeal.

II. Jury Instructions

John argues that the circuit...