Knollinger v. Oliver

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

Jeanne Knollinger, Appellant,

v.

Ryan Noel Oliver, Respondent.

Appellate Case No. 2018-002095

Appeal From Richland County
Jocelyn Newman, Circuit Court Judge

Unpublished Opinion No. 2021-UP-149
Submitted April 1, 2021 – Filed May 5, 2021

AFFIRMED

Ryan Christopher Andrews, of Cobb, Dill & Hammett,
LLC, of Mount Pleasant, for Appellant.

Langdon Cheves, III, of Turner Padget Graham & Laney,
PA, of Greenville, for Respondent.

PER CURIAM: Jeanne Knollinger appeals a jury verdict in favor of Ryan Noel
Oliver finding him not liable for negligence after she struck Oliver's rented moving
truck while he attempted a left-hand turn. Knollinger argues the trial court erred
by excluding an Enterprise Rent-A-Car (Enterprise) incident report, testimony
regarding a statement made by an unidentified witness following the accident, and
testimony regarding a dismissed counterclaim brought by Enterprise. She also
contends the trial court erroneously denied her motions for judgment
notwithstanding the verdict (JNOV) and for a new trial because the evidence
supported only one conclusion—that Oliver was negligent—and because Oliver
confused the jury by invoking a Golden Rule argument during his closing remarks.
We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. Knollinger's argument regarding the exclusion of Enterprise's incident report
was not preserved for appellate review because she substituted new arguments in
her Rule 59(e), SCRCP, motion and did not proffer the report or related testimony
following the trial court's ruling that the report should be excluded. See 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 [court] to be preserved for appellate review.");
Patterson v. Reid, 318 S.C. 183, 185, 456 S.E.2d 436, 437 (Ct. App. 1995) ("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."); Jamison v. Ford Motor Co., 373 S.C. 248, 260,
644 S.E.2d 755, 761 (Ct. App. 2007) ("The failure to make a proffer of excluded
evidence will preclude review on appeal.").

2. Knollinger's argument regarding the exclusion of a statement made by an
unknown witness was not preserved for appellate review because Knollinger failed
to proffer any evidence regarding the statement following the trial court's ruling
that the statement should be excluded. See Jamison, 373 S.C. at 260, 644 S.E.2d at
761 ("The failure to make a proffer of excluded evidence will preclude review on
appeal.").

3. The trial court did not err in excluding testimony regarding Enterprise's
dismissed counterclaim against Knollinger because the counterclaim was not
relevant to the negligence claim. See Vaught v. A.O. Hardee & Sons, Inc., 366
S.C. 475, 480, 623 S.E.2d 373, 375 (2005) ("The admission of evidence is within
the sound discretion of the trial [court], and absent a clear abuse of discretion
amounting to an error of law, the trial court's ruling will not be disturbed on
appeal."); id. ("An abuse of discretion occurs when the ruling is based on an error
of law or a factual conclusion without evidentiary support."); 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."); Rule 402, SCRE
("Evidence which is not relevant is not admissible."). The only action at trial was
Knollinger's original claim of negligence against Oliver, and any mention of the
counterclaim would not have made Oliver's liability to Knollinger more or less
probable. Therefore, testimony regarding Enterprise's counterclaim was
inadmissible because it was not relevant to issue of liability, and the trial court did
not err when it excluded the evidence.

4. The trial court did not err when it denied Knollinger's motions for JNOV and
for a new trial because evidence supported the trial court's ruling. See Burns v.
Universal Health Servs., Inc., 361 S.C. 221, 232, 603 S.E.2d 605, 611 (Ct. App.
2004) ("The appellate court will reverse the trial court's ruling on a JNOV motion
only when there is no evidence to support the ruling or where the ruling is
controlled by an error of law."); Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C.
96, 112, 512 S.E.2d 510, 518 (Ct. App. 1998) (holding a JNOV motion "should not
be granted unless only one reasonable inference can be drawn from the evidence");
Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002)
("Upon review, a trial [court's] order granting or denying a new trial will be upheld
unless the order is 'wholly unsupported by the evidence, or the conclusion reached
was controlled by an error of law.'" (quoting Folkens v. Hunt, 300 S.C. 251, 255,
387 S.E.2d 265, 267 (1990))). We find evidence supported the trial court's denial
of both motions. Specifically, Knollinger testified Oliver's truck was stationary
when she reached the intersection and began to merge. Oliver, however, testified
the cab of his truck was either in the median or had traveled over the median when
he first became aware of Knollinger's vehicle in the road and saw Knollinger turn
her head forward and notice him in the seconds before the accident. Because these
facts raise more than one reasonable inference and support the trial court's denial of
Knollinger's new trial and JNOV motions, we find the trial court did not err in
denying these motions.1

AFFIRMED.2

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.

1
We find Knollinger's argument that the trial court erred by refusing her request
for a curative instruction following Oliver's Golden Rule argument was not
preserved for appellate review. See Murray v. Bank of Am., N.A., 354 S.C. 337,
347, 580 S.E.2d 194, 200 (Ct. App. 2003) (holding the appellant failed to preserve
an objection when it did not request a curative instruction after the trial court
sustained the objection); Solley v. Navy Fed. Credit Union, Inc., 397 S.C. 192,
214-15, 723 S.E.2d 597, 609 (Ct. App. 2012) (finding a motion was not preserved
for appellate review when the special referee alluded to the motion but the record
did not contain either side's argument or the actual ruling).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.