Norton v. Newberry Home Center

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

Billy Norton
and Donna Norton, Appellants,

v.

Newberry Home
Center, Inc. and Wayne Turner, Defendants,

Of whom, Robert
A. Turner and William B. Ackerman III, as Personal Representatives of the
Estate of Wayne Turner, are the, Respondents.

Appeal From Newberry County

D. Garrison Hill, Circuit Court Judge

Unpublished Opinion No. 2011-UP-563 

Heard November 2, 2011 – Filed December
13, 2011

AFFIRMED

Dorothy F. Reed, of Columbia, for
Appellants.

Mindy Westbrook Zimmerman, of Newberry,
for Respondent.

PER CURIAM: Billy
and Donna Norton appeal the trial court's ruling in favor of Wayne Turner on
their negligence cause of action arising from the delivery and set-up of their
mobile home.  We affirm. 

1) Duty:  The Nortons
argue the trial court erred in ruling they presented insufficient evidence that
Turner was an agent of Newberry Home Center (NHC).  "An agent is one
appointed by a principal as his representative and to whom the principal
confides the management of some business to be transacted in the principal's
name, or on his account, and who brings about or effects legal relationships
between the principal and third parties."  Colleton Cnty. Taxpayers
Ass'n v. Sch. Dist. of Colleton Cnty., 371 S.C. 224, 239, 638 S.E.2d 685,
693 (2006) (quoting Thompson v. Ford Motor Co., 200 S.C. 393, 414, 21
S.E.2d 34, 43 (1942)).  The trial court did not find Turner was not acting on
behalf of NHC, but rather was explaining there was insufficient evidence Turner
was acting pursuant to a separate agreement with the Nortons.  There is no
evidence in the record whether Turner was an employee of NHC or an independent
contractor.  We find no error in that ruling. 

The Nortons argue that even
as an agent of NHC, Turner can be held liable for his own negligent acts.  The
court recognized this principle of law in its order on Turner's motion to alter
or amend. 

Finally, the Nortons assert under
this issue that because Turner undertook the responsibility of moving and
setting up the Nortons' home, he owed them a duty of care.  The Turners never
argued to the trial court a duty by undertaking.  This issue is not preserved.  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 judge to be
preserved for appellate review.").

2)  Breach of Duty:  The
Nortons assert Turner breached his duty of care by not properly setting up the
mobile home and completing the trim work, and the home was damaged as a
result.  The record is devoid of any evidence of the scope of Turner's
responsibilities in the delivery and set up of the home.  Although Mr. Norton
stated three men worked for Turner, the trial court may not have believed this
testimony.  "The fact that testimony is not contradicted directly does not
render it undisputed."  Okatie River, L.L.C. v. Southeastern Site Prep,
L.L.C., 353 S.C. 327, 338, 577 S.E.2d 468, 474 (Ct. App. 2003).  The
Nortons provided no clarification if the other men working with Turner were
Turner's employees or NHC's employees.  In addition, Mr. Norton stated one of
the other men was supposed to work on the trimming.  "An employee may not
generally be held liable to a third party for a fellow employee's acts unless he
or she was directly involved in some way that would support the imposition of
liability."  27 Am. Jur. 2d Employment Relationship § 410 (2004). 

There is no evidence Turner
prepared the home for transport and chose to move the home without plastic over
the open side.  In addition, we find no error in the trial court's ruling that
there was no evidence in the record to support the Nortons' claims that
Turner's acts proximately damaged the home.  As fact finder, the trial court
was free to disregard Mr. Norton's opinion that the move caused the damage.  See Okatie River, L.L.C., 353 S.C. at 338, 577 S.E.2d at 474 ("The
court is not required to accept undisputed evidence as establishing the truth
where there is reason for disbelief.").  Furthermore, "expert
evidence is required where a factual issue must be resolved with scientific,
technical, or any other specialized knowledge. . . .  [A] lay witness may only
testify as to matters within his personal knowledge and may not offer opinion
testimony which requires special knowledge, skill, experience, or training."
 Watson v. Ford Motor Co., 389 S.C. 434, 445-46, 699 S.E.2d 169, 175
(2010). 

AFFIRMED.

HUFF, PIEPER, and LOCKEMY,
JJ., concur.