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2009-UP-282 - Mozingo v. Ford Motor Co.

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Helen Ann Mozingo, as Personal Representative of the Estate of Junious Hoyt Stewart, deceased, Appellant,

v.

Ford Motor Company, Horne Ford, Inc., Autoliv, Inc., Autoliv North America, Inc., Autoliv Electronics America, Inc., Autoliv ASP, Inc., and Visteon Corporation, Defendants,

Of which Visteon Corporation is, Respondent.


Appeal From Florence County
Thomas A. Russo, Circuit Court Judge


Unpublished Opinion No. 2009-UP-282
Heard April 23, 2009 – Filed June 4, 2009


AFFIRMED


J. Edward Bell, III, of Georgetown and Rodney C. Jernigan, Jr., of Florence, for Appellant.

James H. Elliot, Jr., of Charleston, for Respondent.

PER CURIAM:  In this wrongful death and survivor action, Helen Ann Mozingo appeals the grant of summary judgment in favor of Visteon Corporation (Visteon) arguing the trial court erred in finding Visteon was not a successor corporation to Ford.  Specifically, while Visteon as a separate entity was not in existence at the time the vehicle was manufactured, Mozingo asserts Visteon's SEC Registration Statement and Master Transfer Agreement (MTA) evidenced an assumption of liability for component parts supplied to Ford and installed in 1997 and later year model Ford vehicles.  We affirm pursuant to Rule 220(b)(2).

As to whether the Registration Statement and MTA created a genuine issue of fact on the successor corporation claim, summary judgment was appropriate as neither the Registration Statement nor the MTA were submitted to the court prior to or at the summary judgment hearing.  See West v. Gladney, 341 S.C. 127, 135, 533 S.E.2d 334, 338 (Ct. App. 2000) (affirming summary judgment where statement of fact presented only in attorney's argument would not be considered by the court in determining whether a genuine issue of material fact exists sufficient to preclude summary judgment).  Moreover, while the Registration Statement was submitted after the hearing as an exhibit with the Rule 59(e) motion, a party cannot use Rule 59(e) to present new evidence to the court.  See Brailsford v. Brailsford, 380 S.C. 443, 448, 669 S.E.2d 342, 345 (Ct. App. 2008) (holding issue is not preserved for appeal where it was never presented to the trial court prior to the filing of the motion to alter or amend); Eaddy v. Oliver, 345 S.C. 39, 44, 545 S.E.2d 830, 833 (Ct. App. 2001) (a party cannot for the first time raise an issue by way of a Rule 59(e) motion which could have been raised at trial). 

Notwithstanding, even if we were to consider the untimely Registration Statement and MTA, summary judgment would still be appropriate as the provisions cited by Mozingo evidence, at most, a mere indemnification agreement between Ford and Visteon for auto parts.  Likewise, while the existence of an agreement to assume the debts of the predecessor or selling company is an exception to the general rule of nonliability, Visteon's willingness to assume liability to Ford for auto parts is not analogous to being a successor corporation to Ford.  See Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 312, 622 S.E.2d 213, 215 (2005) (stating in the absence of a statute, a successor or purchasing company ordinarily is not liable for the debts of a predecessor or selling company under a theory of successor liability unless: (1) there was an agreement to assume the debts of the predecessor or selling company; (2) the circumstances surrounding the transaction warrant a finding of a consolidation or merger of the two corporations; (3) the successor company was a mere continuation of the predecessor; or (4) the transaction was entered into fraudulently for the purpose of wrongfully defeating creditors' claims) (citing Brown v. Am. Ry. Express Co., 128 S.C. 428, 123 S.E. 97 (1924)).  The record is simply insufficient to establish any basis upon which to classify Visteon as a successor corporation to Ford.  Moreover, Mozingo does not challenge the trial court's additional finding that Visteon cannot be liable under an independent products liability theory since Visteon did not manufacture the vehicle; thus, this finding is the law of the case.  See Charleston Lumber Co., Inc. v. Miller Hous. Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (stating an unchallenged ruling, right or wrong, is the law of this case).

Accordingly, the order of the circuit court is

AFFIRMED.

HEARN, C.J., PIEPER, and LOCKEMY, JJ., concur.