Norton v. Newberry Home Center ( 2011 )

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

Billy Norton and Donna Norton, Appellants,

v.

Newberry Home Center, Inc. and Wayne Turner, Defendants,

Of whom, Robert A. Turner and William B. Ackerman III, as Personal Representatives of the Estate of Wayne Turner, are the, Respondents.

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Appeal From Newberry County
D. Garrison Hill, Circuit Court Judge

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Unpublished Opinion No. 2011-UP-563 
Heard November 2, 2011 – Filed December 13, 2011

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AFFIRMED

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Dorothy F. Reed, of Columbia, for Appellants.

Mindy Westbrook Zimmerman, of Newberry, for Respondent.

PER CURIAM: Billy and Donna Norton appeal the trial court's ruling in favor of Wayne Turner on their negligence cause of action arising from the delivery and set-up of their mobile home.  We affirm. 

1) Duty:  The Nortons argue the trial court erred in ruling they presented insufficient evidence that Turner was an agent of Newberry Home Center (NHC).  "An agent is one appointed by a principal as his representative and to whom the principal confides the management of some business to be transacted in the principal's name, or on his account, and who brings about or effects legal relationships between the principal and third parties."  Colleton Cnty. Taxpayers Ass'n v. Sch. Dist. of Colleton Cnty., 371 S.C. 224, 239, 638 S.E.2d 685, 693 (2006) (quoting Thompson v. Ford Motor Co., 200 S.C. 393, 414, 21 S.E.2d 34, 43 (1942)).  The trial court did not find Turner was not acting on behalf of NHC, but rather was explaining there was insufficient evidence Turner was acting pursuant to a separate agreement with the Nortons.  There is no evidence in the record whether Turner was an employee of NHC or an independent contractor.  We find no error in that ruling. 

The Nortons argue that even as an agent of NHC, Turner can be held liable for his own negligent acts.  The court recognized this principle of law in its order on Turner's motion to alter or amend. 

Finally, the Nortons assert under this issue that because Turner undertook the responsibility of moving and setting up the Nortons' home, he owed them a duty of care.  The Turners never argued to the trial court a duty by undertaking.  This issue is not preserved.  See 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.").

2)  Breach of Duty:  The Nortons assert Turner breached his duty of care by not properly setting up the mobile home and completing the trim work, and the home was damaged as a result.  The record is devoid of any evidence of the scope of Turner's responsibilities in the delivery and set up of the home.  Although Mr. Norton stated three men worked for Turner, the trial court may not have believed this testimony.  "The fact that testimony is not contradicted directly does not render it undisputed."  Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 338, 577 S.E.2d 468, 474 (Ct. App. 2003).  The Nortons provided no clarification if the other men working with Turner were Turner's employees or NHC's employees.  In addition, Mr. Norton stated one of the other men was supposed to work on the trimming.  "An employee may not generally be held liable to a third party for a fellow employee's acts unless he or she was directly involved in some way that would support the imposition of liability."  27 Am. Jur. 2d Employment Relationship § 410 (2004). 

There is no evidence Turner prepared the home for transport and chose to move the home without plastic over the open side.  In addition, we find no error in the trial court's ruling that there was no evidence in the record to support the Nortons' claims that Turner's acts proximately damaged the home.  As fact finder, the trial court was free to disregard Mr. Norton's opinion that the move caused the damage.  See Okatie River, L.L.C., 353 S.C. at 338, 577 S.E.2d at 474 ("The court is not required to accept undisputed evidence as establishing the truth where there is reason for disbelief.").  Furthermore, "expert evidence is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge. . . .  [A] lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training." Watson v. Ford Motor Co., 389 S.C. 434, 445-46, 699 S.E.2d 169, 175 (2010). 

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.