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2009-UP-045 - Phillips v. Horry County

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

Diane B. Phillips, Appellant,

v.

Horry County, Respondent.

____________________

Richard Kevin Phillips, Appellant,

v.

Horry County, Respondent.


Appeal From Horry County
 Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2009-UP-045
Submitted December 12, 2008 – Filed January 15, 2009   


AFFIRMED


James P. Stevens, Jr., of Loris, for Appellants.

Victoria T. Vaught, of Conway, for Respondent.

PER CURIAM: Dianne B. Phillips and Richard Kevin Phillips appeal the order of the trial court granting summary judgment to Horry County.  They assert the trial court erred in holding the federal court’s finding of probable cause in their 42 U.S.C.A. § 1983 (2000) claim collaterally estopped them from claiming a lack of probable cause in their remanded state law claims for malicious prosecution, false imprisonment, and assault and battery. 

This action arises from the Phillips’ arrest by Horry County law enforcement officer Kevin Jordan for breach of peace.  The charge against Mrs. Phillips was later dismissed.  The charge against Mr. Phillips was also dismissed after he performed community service. 

The Phillips brought separate actions against Horry County and Officer Jordan for assault and battery, malicious prosecution, false imprisonment, and violation of the civil rights under color of state law pursuant to 42 U.S.C.A § 1983.  The defendants removed the action to federal court on the basis of federal question jurisdiction.  The federal court granted the defendants’ summary judgment finding, among other issues, that the officers had probable cause to arrest the Phillips and did not use excessive force.  It declined to exercise supplemental jurisdiction of the remaining state law claims and remanded the case to the Court of Common Pleas for Horry County.  The circuit court held that because the issues of probable cause and reasonable force had already been fully and fairly litigated in federal court and the Phillips had presented no additional evidence, they were precluded from relitigating the issues.  It held summary judgment was appropriate as the determination of those issues foreclosed the Phillips’ claims for assault and battery, false imprisonment, and malicious prosecution.  This appeal followed. 

On appeal, the Phillips assert for the first time that the circuit court mistakenly applied the federal test required by § 1983 for “arguable probable cause” while our state law requires “probable cause in fact.”  As this argument was neither raised to nor ruled on by the circuit court, it is not properly before this court.  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“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 trial judge to be preserved for appellate review.”). 

In their reply brief, the Phillips argue the circuit court erred in granting summary judgment because it:

(1) adopted the federal test or standard for granting summary judgment in the applicable state law claims, (2) applied a subjective test, instead of an objective test, to determine whether the arresting officer had probable cause to arrest, (3) ignored the South Carolina “minority” rule that probable cause is ordinarily a question of fact for the jury, (4) ignored the issue that the appellants were arrested in their home which requires a higher standard of probable cause, (5) ignored several genuine issues of material fact and apparently viewed the evidence in the light most favorable to the Respondents, and finally (6) ignored issues bearing on the credibility of the witness. 

From the record before the court, we cannot discern whether any of these issues were raised to or ruled upon by the circuit court.  See Wilder Corp. v. Wilke, 330 S.C. at 76, 497 S.E.2d at 733 (1998) (stating an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review); Enriquez v. S.C. Dep’t of Corrections, 374 S.C. 165, 167, 648 S.E.2d 582, 583 (2007) (appellant has the burden to provide an adequate record for review);  Shealy v. Aiken County, 341 S.C. 448, 460, 535 S.E.2d 438, 444-45 (2000) (trial court’s general ruling insufficient to preserve specific issue for appellate review; where trial court does not explicitly rule on argument raised, and no Rule 59 motion filed, appellate court may not address the issue); Grant v. S.C. Coastal Council, 319 S.C. 348, 355-56, 461 S.E.2d 388, 392 (1995) (finding that an inaccuracy in the trial court’s order must be raised to the trial court by way of a motion to alter or amend a judgment before the inaccuracy may be challenged on appeal).  Furthermore, many of these arguments were raised for the first time in the reply brief.  See Continental Ins. Co. v. Shives, 328 S.C. 470, 474 n.2, 492 S.E.2d 808, 811 n.2 (Ct. App. 1997) (stating an appellant may not use the reply brief to argue issues not raised in the initial brief).  Accordingly we find the Phillips’ arguments are not properly before this court.  As the Phillips have not presented this court with any preserved arguments challenging the circuit court’s ruling, we must affirm. 

AFFIRMED.[1]

ANDERSON, HUFF, and THOMAS, JJ. concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.