Phillips v. Horry County

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Diane B.
Phillips, Appellant,

v.

Horry County, Respondent.

____________________

Richard Kevin
Phillips, Appellant,

v.

Horry County, Respondent.

Appeal From Horry County

 Alexander S. Macaulay, Circuit Court
Judge

Unpublished Opinion No. 2009-UP-045

Submitted December 12, 2008 – Filed
January 15, 2009   

AFFIRMED

James P. Stevens, Jr., of Loris, for Appellants.

Victoria T. Vaught, of Conway, for Respondent.

PER CURIAM: Dianne B. Phillips and Richard Kevin Phillips appeal
the order of the trial court granting summary judgment to Horry County.  They assert the trial court erred in holding the federal court’s finding of probable
cause in their 42 U.S.C.A. § 1983 (2000) claim collaterally estopped them from
claiming a lack of probable cause in their remanded state law claims for
malicious prosecution, false imprisonment, and assault and battery. 

This
action arises from the Phillips’ arrest by Horry County law enforcement officer
Kevin Jordan for breach of peace.  The charge against Mrs. Phillips was later dismissed. 
The charge against Mr. Phillips was also dismissed after he performed community
service. 

The
Phillips brought separate actions against Horry County and Officer Jordan for
assault and battery, malicious prosecution, false imprisonment, and violation
of the civil rights under color of state law pursuant to 42 U.S.C.A § 1983. 
The defendants removed the action to federal court on the basis of federal
question jurisdiction.  The federal court granted the defendants’ summary
judgment finding, among other issues, that the officers had probable cause to
arrest the Phillips and did not use excessive force.  It declined to exercise
supplemental jurisdiction of the remaining state law claims and remanded the
case to the Court of Common Pleas for Horry County.  The circuit court held
that because the issues of probable cause and reasonable force had already been
fully and fairly litigated in federal court and the Phillips had presented no
additional evidence, they were precluded from relitigating the issues.  It held
summary judgment was appropriate as the determination of those issues
foreclosed the Phillips’ claims for assault and battery, false imprisonment,
and malicious prosecution.  This appeal followed. 

On
appeal, the Phillips assert for the first time that the circuit court
mistakenly applied the federal test required by § 1983 for “arguable probable
cause” while our state law requires “probable cause in fact.”  As this argument
was neither raised to nor ruled on by the circuit court, it is not properly
before this court.  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.”). 

In
their reply brief, the Phillips argue the circuit court erred in granting
summary judgment because it:

(1)
adopted the federal test or standard for granting summary judgment in the
applicable state law claims, (2) applied a subjective test, instead of an
objective test, to determine whether the arresting officer had probable cause
to arrest, (3) ignored the South Carolina “minority” rule that probable cause
is ordinarily a question of fact for the jury, (4) ignored the issue that the
appellants were arrested in their home which requires a higher standard of
probable cause, (5) ignored several genuine issues of material fact and
apparently viewed the evidence in the light most favorable to the Respondents,
and finally (6) ignored issues bearing on the credibility of the witness. 

From
the record before the court, we cannot discern whether any of these issues were
raised to or ruled upon by the circuit court.  See Wilder Corp. v.
Wilke, 330 S.C. at 76, 497 S.E.2d at 733 (1998) (stating 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); Enriquez v.
S.C. Dep’t of Corrections, 374 S.C. 165, 167, 648 S.E.2d 582, 583 (2007)
(appellant has the burden to provide an adequate record for review);  Shealy
v. Aiken County, 341 S.C. 448, 460, 535 S.E.2d 438, 444-45 (2000) (trial
court’s general ruling insufficient to preserve specific issue for appellate
review; where trial court does not explicitly rule on argument raised, and no
Rule 59 motion filed, appellate court may not address the issue); Grant v.
S.C. Coastal Council, 319 S.C. 348, 355-56, 461 S.E.2d 388, 392 (1995)
(finding that an inaccuracy in the trial court’s order must be raised to the
trial court by way of a motion to alter or amend a judgment before the
inaccuracy may be challenged on appeal).  Furthermore, many of these arguments
were raised for the first time in the reply brief.  See Continental
Ins. Co. v. Shives, 328 S.C. 470, 474 n.2, 492 S.E.2d 808, 811 n.2 (Ct. App.
1997) (stating an appellant may not use the reply brief to argue issues not
raised in the initial brief).  Accordingly we find the Phillips’ arguments are
not properly before this court.  As the Phillips have not presented this court
with any preserved arguments challenging the circuit court’s ruling, we must
affirm. 

AFFIRMED.[1]

ANDERSON,
HUFF, and THOMAS, JJ. concur. 

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