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2008-UP-328 - Meeks v. Goings

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David R. Meeks, Appellant,

v.

Bobby Lee Goings, Respondent.


Appeal From Spartanburg County
 Lee S. Alford, Circuit Court Judge


Unpublished Opinion No. 2008-UP-328
Submitted June 2, 2008 – Filed June 27, 2008   


AFFIRMED


Thomas A. Killoren, Jr., of Harrison, of Spartanburg, for Appellant.

Robert Eric Davis, of Spartanburg, for Respondent.

PER CURIAM: In this civil case, we affirm the trial court’s denial of David Meeks’ motion for a new trial nisi additur.  

FACTS

On February 23, 2000, David Meeks (Meeks) was stopped at the intersection of Floyd Road and Highway 221 in Spartanburg County, South Carolina.  Bobby Goings (Goings) was attempting to make a left turn onto Floyd Road from the southbound lane of Highway 221.  Goings collided with a vehicle traveling north on Highway 221.  As a result of this collision, Goings’ vehicle collided with Meeks’ vehicle. 

Meeks sought to recover medical expenses allegedly incurred as a result of the accident and the cost of a future, unscheduled surgery to his ribs.  In August 1998, Meeks was injured when he was kicked in his ribs by a deer.  The deer kick was in the same area as the alleged injury Meeks sustained in the automobile accident. 

In 2002, approximately four years after the deer kick and two years after the automobile accident, Meeks was referred to Dr. Michael Zhadkevich, a board certified heart, lung, and general surgeon.  Dr. Zhadkevich and Meeks discussed surgical options in 2002 and 2003 to correct his alleged injuries.  However, Meeks never scheduled surgery, but he did return to Dr. Zhadkevich in 2007, seven years after his automobile accident.  Dr. Zhadkevich testified Meeks was “doing pretty well.” 

During the trial, Meeks’ wife, Lucia, testified.  During cross- examination, Goings asked Lucia the cost of tuition associated with educating their child in a private school.  Meeks objected, arguing the question was irrelevant.  The trial court overruled this objection. 

At the close of the trial, the jury returned a verdict in favor of Meeks for $3,548.25.  This amount represented Meeks’ actual medical bills.  The jury did not award Meeks the approximate $24,430 he was seeking for the unscheduled, future surgery.  Meeks filed a motion for a new trial nisi additur.  Meeks argued the jury award was insufficient because the jury failed to award him the cost of the future surgery.  The trial court denied this motion.  This appeal follows.                                        

LAW/ANALYSIS

Meeks argues the trial court committed reversible error in two respects: (1) denying his motion for a new trial nisi additur, and (2) overruling his objection to questioning concerning the cost of his child’s tuition. 

A. New trial nisi additur[1]

Meeks first argues the trial court erred in denying his motion for a new trial nisi additur.  We disagree.  

Our decision in Howard v. Roberson succinctly sets out the law regarding a new trial nisi additur.

A new trial nisi is one in which a new trial will be granted unless the party opposing it complies with a condition set by the court.  The grant or denial of new trial motions rests within the discretion of the trial judge, and his decision will not be disturbed on appeal unless his findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law.  The trial court alone has the power to grant a new trial nisi when he finds the amount of the verdict to be merely inadequate or excessive.  However, compelling reasons must be given to justify invading the jury’s province by granting a new trial nisi additur or remittitur.  The consideration for a motion for a new trial nisi additur or remittitur requires the trial judge to consider the adequacy of the verdict in light of the evidence presented.  Great deference is given to the trial judge who heard the evidence and is more familiar with the evidentiary atmosphere at trial, and who thus possesses a better-informed view of the damages than this Court. 

376 S.C. 143, 155-56, 654 S.E.2d 877, 883-84 (Ct. App. 2007) (internal quotations and citations omitted).

The record contains ample evidence to demonstrate the trial court did not abuse its discretion in denying Meeks’ nisi additur motion.  Meeks was kicked in his left ribs in 1998 by a deer, which Meeks’ family physician noted may have caused “a rib fracture on [his] left side.”  This kick was in the same area as the alleged injury Meeks sustained in the automobile accident in 2000.  Based on this, the jury could have easily concluded Meeks’ injury was not the result of the automobile accident but rather a result of the deer kick. 

Additionally, from June 2003 to January 2007, Meeks was actively working and did not require any medical attention.  When Meeks returned to Dr. Zhadkevich in 2007, seven years after his automobile accident, Dr. Zhadkevich concluded Meeks’ “physical exam reveal[ed] a robust gentleman who look[ed] much younger than his age.  His pain in the area of the previous fracture has significantly improved with only minimal discomfort . . . .”  Relying on this evidence, the jury could have concluded Meeks would not need surgery in the future because he did not suffer any apparent injury from the automobile accident.  Based on the foregoing, we cannot say the trial court abused its discretion in denying Meeks’ nisi additur motion.  See id. (“The grant or denial of new trial motions rests within the discretion of the trial judge, and his decision will not be disturbed on appeal unless his findings are wholly unsupported by the evidence . . . .”).

B. Admission of evidence[2]

Meeks also argues the trial court improperly allowed Goings to inquire into the cost of tuition associated with educating his child in a private school.  We disagree.

The admission or exclusion of evidence is within the sound discretion of the trial court.  Burroughs v. Worsham, 352 S.C. 382, 391, 574 S.E.2d 215, 219-20 (Ct. App. 2002).  The exercise of this discretion will not be disturbed on appeal absent an abuse of that discretion.  Id.  We may reverse the trial court’s decision only if the appellant shows both an error in the ruling and resulting prejudice.  Id.

In this case, even if we assume the trial court’s decision was erroneous, Meeks has failed to show prejudice.  Meeks argues the jury envisioned him as an affluent individual who could afford to pay for his own surgery.  Meeks contends he was prejudiced because even though Goings was found liable, the jury failed to award him the cost of the surgery to correct his alleged injuries.  However, as explained above, the jury could have concluded Meeks’ injury to his ribs was not the result of the automobile accident.  Likewise, the jury could have concluded Meeks would not need surgery in the future.  Since we find no prejudice, we conclude there is no reversible error. 

CONCLUSION

Accordingly, the trial court’s decision is

AFFIRMED.[3]

WILLIAMS, THOMAS, and PIEPER, JJ., concur.


[1] Goings argues this issue is not preserved for our review.  We disagree. Meeks filed a motion for a new trial nisi additur, and the trial court ruled upon this motion.  Thus, this issue is preserved for our review.  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (holding for an issue to be preserved for appeal it must have been raised to and ruled upon by the trial court).

[2] Goings argues this issue is not preserved for our review because the trial court’s evidentiary ruling was not contained in Meeks’ notice of appeal.  We disagree because Meeks properly preserved this issue by objecting during the trial. Lancaster v. Fielder, 305 S.C. 418, 421, 409 S.E.2d 375, 377 (1991) (“[A] party need not challenge the final judgment itself in order to contest an intermediate judgment.”).

[3] We decide this case without oral arguments pursuant to Rule 215, SCACR.