Lachenbruch v. Barnett

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

Charles A.
Lachenbruch and Normotherm, LLC, a South Carolina Limited Liability Company, Appellants/Respondents,

v.

Richard I.
Barnett, Respondent/Appellant.

Charles A.
Lachenbruch and Normotherm, LLC, a South Carolina Limited Liability Company, Appellants/Respondents,

v.

Judy C.
Barnett, Defendant,

and
TranScience, LLC Respondent/Appellant.

Appeal From Georgetown County

Alexander S. Macaulay, Circuit Court
Judge

Unpublished Opinion No. 2010-UP-526

Heard September 15, 2010 – Filed December
13, 2010

AFFIRMED

M. Dawes Cooke, Jr. and K. Michael
Barfield, both of Charleston; for Appellants/Respondents.

J. Edward Bell, III and Vanessa A.
Richardson, both of Georgetown; for Respondent/Appellant.

PER CURIAM: This case is decided pursuant to Rule
220(b), SCACR.  Charles Lachenbruch and Normotherm, LLC initially appealed an
order granting a directed verdict as to several of their claims against
Respondents Richard Barnett and Judy Barnett.  During oral argument Appellants
abandoned their appeal against Respondent Richard Barnett and pursued claims
only against Judy Barnett.  Richard and Judy Barnett cross-appeal the trial
court’s denial of their motion for a new trial.  We affirm.

1. Appellants
contend the trial court erred in granting a directed verdict on their
fraudulent conveyance claim against Judy Barnett.  At oral argument, Appellants
stated that the success of this claim was "wrapped up in" the success
of their claim for constructive trust.  However, Appellants concede that their
constructive trust claim is not preserved for our review because they failed to
indicate in the record that the issue was raised and ruled on by the trial
court.  See S.C. Dept. of
Transp. v. First Carolina Corp. of S.C.,
372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (holding that an issue must be
raised and ruled upon by the trial court in order to preserve the issue for
appellate review); see also Helms Realty, Inc. v. Gibson-Wall Co.,
363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (holding that Appellant has
the burden of presenting a sufficient record to allow review); Rule 210(h),
SCACR ("[T]he appellate court will not consider any fact which does not
appear in the Record on Appeal.").  Thus, we affirm as to both of these claims.

2. Appellants
contend the trial court erred in granting a directed verdict on their civil
conspiracy claim against Judy Barnett.  A plaintiff must demonstrate all three
elements of civil conspiracy in order to maintain a claim.  Pye v. Estate of
Fox, 369 S.C. 555, 566-68, 633 S.E.2d 505, 511-12 (2006) (listing the elements of civil conspiracy as 1) the combination of two or more people; 2) for the
purpose of injuring the plaintiff;  3) which causes special damages).  Appellants presented no evidence of
special damages.  Because the Appellants failed to present evidence of an
element of this claim, the trial judge did not err in directing a verdict.

3. On
cross-appeal, Richard and Judy Barnett contend that the trial court erred in
denying their motion for a new trial.  We hold that the trial court acted
within its discretion in denying the motion.  Swicegood v. Lott, 379
S.C. 346, 355-56, 665 S.E.2d 211, 216 (Ct. App. 2008) ("The grant or denial of new trial motions
rests within the discretion of the circuit court, and its decision will not be
disturbed on appeal unless its findings are wholly unsupported by the evidence,
or the conclusions reached are controlled by error of law.").

AFFIRMED.

FEW, C.J., HUFF and
GEATHERS, JJ., concur.