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2010-UP-526 - Lachenbruch v. Barnett

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

Charles A. Lachenbruch and Normotherm, LLC, a South Carolina Limited Liability Company, Appellants/Respondents,

v.

Richard I. Barnett, Respondent/Appellant.

Charles A. Lachenbruch and Normotherm, LLC, a South Carolina Limited Liability Company, Appellants/Respondents,

v.

Judy C. Barnett, Defendant,

and TranScience, LLC Respondent/Appellant.


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


Unpublished Opinion No. 2010-UP-526
Heard September 15, 2010 – Filed December 13, 2010


AFFIRMED


M. Dawes Cooke, Jr. and K. Michael Barfield, both of Charleston; for Appellants/Respondents.

J. Edward Bell, III and Vanessa A. Richardson, both of Georgetown; for Respondent/Appellant.

PER CURIAM: This case is decided pursuant to Rule 220(b), SCACR.  Charles Lachenbruch and Normotherm, LLC initially appealed an order granting a directed verdict as to several of their claims against Respondents Richard Barnett and Judy Barnett.  During oral argument Appellants abandoned their appeal against Respondent Richard Barnett and pursued claims only against Judy Barnett.  Richard and Judy Barnett cross-appeal the trial court’s denial of their motion for a new trial.  We affirm.

1. Appellants contend the trial court erred in granting a directed verdict on their fraudulent conveyance claim against Judy Barnett.  At oral argument, Appellants stated that the success of this claim was "wrapped up in" the success of their claim for constructive trust.  However, Appellants concede that their constructive trust claim is not preserved for our review because they failed to indicate in the record that the issue was raised and ruled on by the trial court.  See S.C. Dept. of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (holding that an issue must be raised and ruled upon by the trial court in order to preserve the issue for appellate review); see also Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (holding that Appellant has the burden of presenting a sufficient record to allow review); Rule 210(h), SCACR ("[T]he appellate court will not consider any fact which does not appear in the Record on Appeal.").  Thus, we affirm as to both of these claims.

2. Appellants contend the trial court erred in granting a directed verdict on their civil conspiracy claim against Judy Barnett.  A plaintiff must demonstrate all three elements of civil conspiracy in order to maintain a claim.  Pye v. Estate of Fox, 369 S.C. 555, 566-68, 633 S.E.2d 505, 511-12 (2006) (listing the elements of civil conspiracy as 1) the combination of two or more people; 2) for the purpose of injuring the plaintiff;  3) which causes special damages).  Appellants presented no evidence of special damages.  Because the Appellants failed to present evidence of an element of this claim, the trial judge did not err in directing a verdict.

3. On cross-appeal, Richard and Judy Barnett contend that the trial court erred in denying their motion for a new trial.  We hold that the trial court acted within its discretion in denying the motion.  Swicegood v. Lott, 379 S.C. 346, 355-56, 665 S.E.2d 211, 216 (Ct. App. 2008) ("The grant or denial of new trial motions rests within the discretion of the circuit court, and its decision will not be disturbed on appeal unless its findings are wholly unsupported by the evidence, or the conclusions reached are controlled by error of law.").

AFFIRMED.

FEW, C.J., HUFF and GEATHERS, JJ., concur.