John Mayers v. Konan Henthorn

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 Mayers, Appellant,

v.

Konan Henthorn, Respondent.

Appellate Case No. 2020-000534

Appeal From Charleston County
Bentley Price, Circuit Court Judge

Unpublished Opinion No. 2023-UP-177
Heard March 15, 2023 – Filed May 11, 2023

AFFIRMED

Eric Marc Poulin and Roy T. Willey, IV, both of Poulin,
Willey, Anastopoulo, LLC, of Charleston; Angeline M.
Larrivee, of Poulin, Willey, Anastopoulo, LLC, of
Williamston; and Alexis Wimberly McCumber, of
Poulin, Willey, Anastopoulo, LLC, of Athens, GA, all for
Appellant.

Michael T. Coulter, of Clarkson, Walsh & Coulter, PA,
of Greenville and William Joseph Horvath, of Turner
Padget Graham & Laney, PA, of Charleston, both for
Respondent.
PER CURIAM: John Mayers appeals a jury verdict finding Konan Henthorn was
not negligent in causing the wreck between Mayers' bicycle and Henthorn's car.
Mayers contends the trial court erred in denying his argument that Henthorn did not
timely answer discovery and therefore admitted liability. Mayers also argues the
trial court erred in allowing evidence related to alcohol and in denying his new trial
and judgment notwithstanding the verdict (JNOV) motion.

DISCOVERY/CONTESTED LIABILITY

Rule 36(a), SCRCP, allows a party to serve requests for admission at the same time
the party serves the summons and complaint. It also specifies that the requests are
deemed admitted unless there is a timely response. Id.

Even so, and as the two circuit judges 1 who heard this same argument found, Rule
36(a) does not trump Rule 5(b)(1), SCRCP. That rule says, "Whenever under these
rules service is required or permitted to be made upon a party represented by an
attorney[,] the service shall be made upon the attorney unless service upon the party
himself is ordered by the court." We hold the rule is straightforward and that when
the rules are read together, they mandate service of discovery—even discovery
served with initial process—be served on a party's counsel if counsel has appeared
in the action.

Mayers claims he personally served requests for admission on Henthorn in March
2018, but there is no dispute Henthorn's counsel had already appeared in the action
by filing an answer on Henthorn's behalf in December 2017. Because Henthorn's
counsel was of record before Mayers personally served Henthorn, Rule 5 required
the discovery be served on Henthorn's counsel. 2 Thus, the initial service of
discovery was not valid. Mayers served Henthorn's counsel in January 2019.
Henthorn's counsel responded within a week.

EVIDENCE RELATED TO ALHOCOL

1
Judge Roger Young heard and rejected this argument in a pretrial hearing before
continuing the case. Almost a year later, Judge Bentley Price heard it as a summary
judgment motion at the beginning of trial.
2
We are concerned that the discovery personally served on Henthorn has a certificate
of service stamp indicating it was served on all counsel of record despite there being
no dispute the discovery was not served on Henthorn's counsel.
Mayers argues the trial court abused its discretion in allowing evidence that two
unopened beer cans were found near the site of the collision and evidence related to
alcohol consumption in Mayers' medical record. Mayers contends there was no duty
requiring him to abstain from consuming alcohol before riding a bicycle, there was
no evidence he had impaired judgment, and Mayers denied the contents of the
medical record (which he also contends was inadmissible hearsay).

"The admission of evidence is a matter addressed to the sound discretion of the trial
judge." Creed v. City of Columbia, 310 S.C. 342, 344, 426 S.E.2d 785, 786 (1993).
"Absent clear abuse of discretion amounting to an error of law, the trial court's ruling
will not be disturbed on appeal." Id.

First, the trial court did not abuse its discretion in allowing Mayers' medical record
into evidence. The statement in question—"Patient drank approximately 2 24 ounce
beers today"—came from an orthopedic consult note on the day of the accident in
the HPI (history; present illness) section of the record. Mayers sustained a broken
arm that was surgically repaired with a metal rod and eight screws. The trial court
did not err in finding that the statement was admissible as a statement made for the
purposes of medical treatment and concerned Mayers' present symptoms, including
any alcohol intake, shortly after the collision. See Rule 803(4), SCRE ("The
following are not excluded by the hearsay rule, even though the declarant is available
as a witness: . . . Statements made for the purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment . . . .").

Second, the trial court did not abuse its discretion in allowing the pictures of the two
beer cans. Mayers may well be right that having unopened beer in his possession
was not terribly probative, and Mayers is most definitely right that evidence of the
mere presence of alcohol without further indication of impairment should generally
be excluded because of its tendency to mislead the jury. See Kennedy v. Griffin, 358
S.C. 122, 128-29 595 S.E.2d 248, 251 (Ct. App. 2004) (articulating this principle).
Still, unlike Kennedy, two witnesses at trial testified about their interactions with
Mayers shortly after the crash. The witnesses said Mayers' breath smelled of
alcohol, and there was testimony Mayers was operating his bicycle erratically.
Accordingly, we hold that the record contains sufficient evidence of impairment.

JNOV, NEW TRIAL, AND THIRTEENTH JUROR DOCTRINE
Mayers argues the trial court erred in denying his JNOV and new trial motions. He
claims the jury's verdict was inconsistent with the evidence and that the jury must
have been confused. He asserts the trial court should have granted a new trial under
the thirteenth juror doctrine.

Mayers' argument that the trial court should have granted judgment in his favor as a
matter of law is abandoned. The portion of his brief dealing with JNOV and new
trial motions only presented arguments and citations concerning a new trial absolute
under the thirteenth juror doctrine. See Glasscock, Inc. v. U.S. Fid. & Guar. Co.,
348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("South Carolina law clearly
states that short, conclusory statements made without supporting authority are
deemed abandoned on appeal and therefore not presented for review.").

We respectfully disagree with Mayers' argument that the jury's verdict is wholly
unsupported by the evidence. Thus, we conclude the trial court did not err in denying
Mayers' motion for a new trial under the thirteenth juror doctrine. See Norton v.
Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002) (holding the
thirteenth juror doctrine is a vehicle by which the circuit court may grant a new trial
absolute when it finds the evidence does not justify the verdict); S.C. State Highway
Dep't v. Clarkson, 267 S.C. 121, 126-27, 226 S.E.2d 696, 697 (1976) (stating an
order granting or denying a new trial upon the facts will not be disturbed unless the
trial court's decision is wholly unsupported by the evidence or the conclusion
reached was controlled by an error of law). Fault in this case was plainly a jury
question. Henthorn testified Mayers abruptly swerved his bicycle from the side of
the road into the left lane where Henthorn was driving. A witness to the collision
gave similar testimony. There was also evidence Mayers was impaired. Thus, there
is evidence in the record supporting the jury's determination that Henthorn was not
negligent in causing the collision.

CONCLUSION

For the foregoing reasons, the trial court's judgment is

AFFIRMED.

THOMAS, MCDONALD, and HEWITT, JJ., concur.