John M. Burgess v. Katherine C. Hunter

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

John M. Burgess, Appellant,

v.

Katherine C. Hunter, Respondent.

Appellate Case No. 2018-001423

Appeal From Pickens County
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2022-UP-036
Heard September 15, 2021 – Filed February 2, 2022

AFFIRMED

Stephen N. Garcia, of Garcia Law Firm, LLC, of
Greenville, for Appellant.

Andrew F. Lindemann, of Lindemann & Davis, P.A., of
Columbia, for Respondent.

PER CURIAM: In this civil appeal, John M. Burgess asserts the trial court's
facial expressions and gestures directed towards his counsel during trial prejudiced
the jury and ultimately influenced the jury's verdict. Burgess also contends the
trial court erred in dismissing his motion for a new trial that followed the jury's
verdict and in dismissing his amended motion for new trial. We affirm.

1. We find Burgess failed to preserve the issue regarding the trial court's facial
expressions and gestures for appellate review. See 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, 254–55, 387 S.E.2d 265, 267
(1990))); id. at 478–79, 567 S.E.2d at 854 (stating an appellate court's "review is
limited to consideration of whether evidence exists to support the trial court's
order" (quoting Folkens, 300 S.C. at 255, 387 S.E.2d at 267)). In the present case,
although Burgess's counsel, Stephen Garcia, had a contentious exchange with the
trial court regarding the court's facial expressions, the exchange did not occur in
front of the jury and Garcia failed to point to any evidence in the record describing
the alleged prejudicial facial expressions and gestures or demonstrating actual bias
or prejudice from the judge or jury. Further, Burgess failed to request a remedy for
the prejudicial expressions and gestures—curative instructions, the court's recusal,
or a mistrial. The trial lasted five days—Monday through Friday—and the
expressions and gestures Burgess contends were prejudicial occurred on Monday.
The contentious exchange between the trial court and Garcia occurred on Tuesday
morning. Burgess failed to object or seek a remedy, orally or in writing, for the
purported facial expressions and gestures the remainder of trial. Finally, while the
tone and tenor of the trial court's question "are you threatening me" and the
remarks that followed would have been intimidating and uncomfortable to respond
to, they did not relieve Burgess of his duty to provide a sufficient record for this
court's review on appeal. See Parks v. Morris Homes Corp., 245 S.C. 461, 470,
141 S.E.2d 129, 134 (1965) ("The fact that counsel may have some hesitancy in
making objection[s] during the trial to remarks or conduct of the court, which are
considered prejudicial, does not excuse the failure to do so."); State v. Tyndall, 336
S.C. 8, 17, 518 S.E.2d 278, 283 (Ct. App. 1999) ("An appellant has a duty to
provide [an appellate court] with a record sufficient for review of the issues on
appeal."). Although Burgess contends a motion for a mistrial or the court's recusal
would have been futile following his contentious exchange with the court, the
record must contain an inkling of evidence describing the facial expressions being
objected to or showing the expressions or gestures were made. Cf. State v. Pace,
316 S.C. 71, 74, 447 S.E.2d 186, 187 (1994) (finding an issue preserved for
appellate review even though the attorney failed to object because the tone and
tenor of the trial court's remarks rendered an objection futile and the trial court
made the prejudicial remarks about the attorney's gender on the record and in front
of the jury).

2. Because we find Burgess failed to preserve for appellate review the issue related
to the trial court's facial expressions and gestures, we decline to address whether
the trial court erred in denying Burgess's motion for a new trial and his amended
motion for a new trial that were based on the same grounds. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (stating that appellate courts need not address remaining issues after
deciding an issue that is dispositive of the appeal).

CONCLUSION

Based on the foregoing, the trial court's rulings are

AFFIRMED.

WILLIAMS, A.C.J., MCDONALD, J., and LOCKEMY, A.J., concur.