Beverly S. v. Kayla R.

718 S.E.2d 224, 395 S.C. 399, 2011 S.C. App. LEXIS 211

• Court: Court of Appeals of South Carolina
• Decided: August 10, 2011
• Docket: 4864
• Status: Published

Opinions

FEW, C.J.

In this appeal from an automobile accident case, Beverly S. claims the trial judge erred in not charging the jury on the loss of use of a vehicle as an element of recoverable property damages when the vehicle is a total loss. We find Beverly has failed to provide an adequate record for appellate review, and accordingly, we affirm.

I. Facts and Procedural History

On August 9, 2006, Beverly’s daughter, Mandy, drove Beverly’s 1995 Nissan Altima to school. While Mandy was attempting to leave the school’s parking lot after class, Mandy was involved in two nearly simultaneous collisions: (1) she was hit from behind by a car driven by Kayla R., and (2) Mandy hit the car in front of her. The Altima sustained significant damages to its front end and minor damages to the rear end.

Beverly filed suit against Kayla claiming Kayla was negligent in hitting Mandy from behind, which in turn caused the Altima to hit the car in front. Beverly sought actual damages for Mandy’s personal injuries and for property damage to and loss of use of the Altima. She also sought punitive damages. Before trial, the parties settled all claims except those for property damage and loss of use.

Beverly’s counsel asked the trial judge to charge the jury that loss of use damages are recoverable as an element of property damages even if the vehicle was a total loss. The judge denied the request. The jury returned a $120 verdict in favor of Beverly.

II. Failure to Prepare an Adequate Record on Appeal

We do not reach the issue Beverly attempts to raise on appeal because it is not adequately presented for appellate review. An appellate court will not consider an issue that has not been preserved for appellate review. Ulmer v. Ulmer, 369 S.C. 486, 490, 632 S.E.2d 858, 861 (2006). Issue preservation requires a party to preserve an issue both at trial and in presentation of the issue on appeal. S.C. Dep’t of Transp. v. M &T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 659, 667 S.E.2d 7, 15 (Ct.App.2008) (stating “if an issue is preserved at the trial court level, it must still be properly raised and argued to the appellate court”).

Beverly failed to present the issue on appeal in two important respects. First, she failed to include her request to charge in the Record on Appeal. An appellate court cannot review a trial court’s refusal to give a requested charge where the appellant fails to include the requested charge in the record. Kline Iron & Steel Co. v. Superior Trucking Co., 261 S.C. 542, 550, 201 S.E.2d 388, 392 (1973); see also Bonaparte v. Floyd, 291 S.C. 427, 444, 354 S.E.2d 40, 50 (Ct.App.1987) (stating the appellant bears the burden of providing a record on appeal sufficient for intelligent review); Rule 210(h), SCACR (“[T]he appellate court will not consider any fact which does not appear in the Record on Appeal.”).

Second, Beverly failed to present the issue on appeal by not including the entire jury charge in the Record on Appeal. An appellate court reviewing a jury charge for error must review the charge as a whole. Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 497, 514 S.E.2d 570, 575 (1999); see also Fairchild v. S.C. Dep’t of Transp., 385 S.C. 344, 352, 683 S.E.2d 818, 822 (Ct.App.2009) (stating an error in a jury charge must be shown to be prejudicial to warrant reversal). Here, Beverly included in the Record only one page of the transcript of the charge. That page does not even include the entire charge on damages.

III. Conclusion

Because Beverly failed to provide an adequate record for appellate review, the jury verdict is

AFFIRMED.

SHORT, J., concurs.