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2012-UP-013 - Manley v. Fesperman

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

Evelyn Joyce Manley, both individually and as Guardian ad Litem for Tiara M., a minor under the age of eighteen, Natasha Manley, Howard Sampson, and Bryant Ward, Plaintiffs,

Of whom Evelyn Joyce Manley is the Appellant,

v.

John Richard Fesperman, Respondent.


Appeal From Horry County
Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2012-UP-013
Submitted January 3, 2012 – Filed January 25, 2012


AFFIRMED


Daniel A. Hunnicutt, of Conway, for Appellant.

Terra M. Futch, of Columbia, for Respondent.

PER CURIAM:  Evelyn Joyce Manley appeals the jury's verdict awarding her $977 for actual damages arising out of a car accident with John Richard Fesperman.  On appeal, Manley argues the trial court erred in admitting prejudicial statements concerning Manley's previous lawsuits, her retention of a lawyer, and visits to a chiropractor, and in denying her motion for a mistrial.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the trial court erred in allowing testimony concerning Manley's previous lawsuits:  State v. Patterson, 324 S.C. 5, 18, 482 S.E.2d 760, 766 (1997) (finding an issue is not preserved for review when the appellant failed to move to strike or request a curative instruction after the trial court sustained an objection in his favor); State v. Moyd, 321 S.C. 256, 263, 468 S.E.2d 7, 11 (Ct. App. 1996) ("[I]f the objecting party accepts the ruling of the trial [court] and does not contemporaneously object to the sufficiency of a curative instruction or move for mistrial, the error is deemed cured, and the issue is not preserved for appeal." (citation omitted)).   

2.  As to whether the trial court erred in allowing testimony regarding Manley's retention of a lawyer and visits to her chiropractor:  Rule 402, SCRE (providing relevant evidence is generally admissible); Rule 401, SCRE ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."); Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 25-26, 609 S.E.2d 506, 509 (2005) ("[T]he admission or exclusion of evidence in general is within the sound discretion of the trial court. . . .  [T]he trial court's decision will not be disturbed on appeal absent an abuse of discretion. An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion that is without evidentiary support. . . .  To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling and the resulting prejudice, i.e., that there is a reasonable probability the jury's verdict was influenced by the challenged evidence or the lack thereof." (citations omitted)). 

3. As to whether the trial court erred in denying Manley's motion for a mistrial:  Holly Woods Ass'n of Residence Owners v. Hiller, 392 S.C. 172, 187-88, 708 S.E.2d 787, 796 (Ct. App. 2011) ("The grant or refusal of a mistrial lies within the sound discretion of the trial court and the court's ruling will not be disturbed on appeal absent an abuse of discretion.  In order to receive a mistrial, the moving party must show error and resulting prejudice." (quotation marks and citation omitted)); State v. Knighton, 334 S.C. 125, 134, 512 S.E.2d 117, 122 (Ct. App. 1999) ("The burden is on the movant to show not only error, but resulting prejudice."). 

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


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