Hassell v. City of Columbia

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Darris Hassell, Respondent,
v.
The City of Columbia, Appellant.
Appellate Case No. 2017-001750
Appeal From Richland County
L. Casey Manning, Circuit Court Judge
Opinion No. 5734
Submitted May 1, 2020 – Filed July 1, 2020
AFFIRMED
Chad Nicholas Johnston, of Columbia, and Robert
Walker Humphrey, II, of Charleston, both of Willoughby
& Hoefer, PA, and Teresa A. Knox, of Columbia, all for
Appellant.
Paul L. Reeves, of Reeves and Lyle, LLC, of Columbia,
for Respondent.
THOMAS, J.: The City of Columbia appeals a jury verdict awarding Darris
Hassell $200,075 in his action against the City for false imprisonment, malicious
prosecution, and negligent supervision. The City argues the circuit court erred in
(1) refusing to order a new trial based on a juror's failure to disclose a prior arrest
during voir dire and (2) denying its motion for a new trial nisi remittitur. We
affirm.
FACTS
Hassell, a professor at the University of South Carolina (USC)-Lancaster, was
stopped while driving by City of Columbia police officer Cameron Duecker on the
night of February 18, 2014, in downtown Columbia. Although Hassell stated he
was not a drinker, Duecker reported he smelled alcohol and required Hassell to
perform sobriety tests in front of people gathered nearby. The stop was video
recorded, but the video was lost.
Duecker next transported Hassell to the police station, handcuffed him to a wall,
and gave him the breathalyzer test. This test was also video recorded, and it
indicated a blood alcohol concentration of 0.00.1 Duecker transported Hassell to
the detention center and then to a hospital for a urine sample, which was also lost.
Hassell was returned to the detention center and moved into a cell with nine to ten
people. He was released on bond at 6:00 p.m. on February 19 and ticketed with
making an improper turn and driving under the influence (DUI). The charges were
eventually dropped.
Hassell testified he missed work, was embarrassed and humiliated, felt helpless,
had to call his aunt from jail and hear her cry, knew his mother would find out, and
had to explain the incident to the USC-Lancaster administration. He also testified
he missed three doses of his prescription medication. Finally, he testified his car
was towed and he had to pay $75 to retrieve it. Christopher Harris, Hassell's
student assistant, testified that at the time of the incident, he looked for Hassell for
two days, not knowing where he was and reaching a full voice mailbox each time
he called. When Hassell told Harris about the arrest, Hassell was very
embarrassed.
At the end of the trial, by verdict form filed May 19, 2017, the jury found for
Hassell on all three causes of action and awarded him $200,075 in damages. On
May 31, 2017, the City filed a motion for a new trial, and/or new trial nisi
remittitur, arguing, inter alia, the verdict was punitive despite statutory prohibition
of such and the damages were grossly excessive. After a hearing, the circuit court
denied all motions by order filed June 27, 2017.
1
The video recording taken at the station about thirty minutes after the stop
depicted Hassell as calm and polite, and he does not appear intoxicated.
On June 30, 2017, the City filed another motion for a new trial based on newly-
discovered evidence of juror misconduct. During voir dire, the court had asked,
"[H]ave you or a close family member ever been arrested by a City of Columbia
police officer?" One juror had responded, indicating his or her son had been
arrested. The juror who became the foreperson did not respond. The City alleged
it had contacted jurors after the verdict was returned and during efforts to locate
the foreperson, it learned he had been arrested by an officer of the City one year
prior to the trial.
During a hearing on the motion, the City, represented by new counsel, relied on
Long v. Norris & Associates, 342 S.C. 561, 538 S.E.2d 5 (Ct. App. 2000), arguing
it was entitled to a new trial based on juror concealment. Hassell argued Gray v.
Bryant, 298 S.C. 285, 379 S.E.2d 894 (1989), applied, which mandated a denial of
the motion for a new trial because the City had the opportunity to find the
information and chose not to do it despite the information being in two different
places in the City's own files and in the public record. In addition, Hassell argued
"everybody got a fair trial." Hassell finally argued there was no evidence of
intentional concealment by the juror, who could merely not have heard the
question.
The circuit court noted,
Forget the venire. They give you a list every Monday,
and it has whether or not a juror has been arrested. . . .
And whatever judge qualified the panel that day, he
would have known that somebody had an arrest for
anything from trespassing to shoplifting or even a
speeding ticket almost. So, the information was
available, should have been available, on this jury the
Monday morning when the venire was qualified. That's
how it works around here. . . .
I'm telling you what the courthouse standard practice is.
I don't know what the [C]ity does, but every Monday
when you qualify the jury, . . . the clerk . . . has a list of
everybody with a prior record for anything above a
speeding ticket, okay? So, that information on this jury
should have been available to the [C]ity Monday
morning on the week of that trial. That's how it works
here in Richland County.
By order filed July 27, 2018, the court denied the City's motion for a new trial
based on juror concealment.2 Hassell moved for sanctions and attorney's fees,
arguing the City's trial counsel did not appear at the posttrial motions; thus, no
information was available regarding what actions the City took or failed to take
regarding the allegation of juror misconduct. Hassell also argued the City made no
effort to introduce evidence at the hearing to support its position on juror
concealment. This appeal followed, and this court granted the City's motion to
enforce the automatic stay; thus, Hassell's motion for sanctions and attorney's fees
remains pending in the circuit court.3
STANDARD OF REVIEW
"A denial of a new trial based on alleged jury misconduct is reviewed for an abuse
of discretion." State v. Galbreath, 359 S.C. 398, 402, 597 S.E.2d 845, 847 (Ct.
App. 2004). In addition, a trial court's denial of a motion based upon a juror's
misleading or incomplete answers during voir dire will be affirmed absent a
prejudicial abuse of discretion. Id.; Long, 342 at 568, 538 S.E.2d at 9 ("The
granting of a new trial based on a juror's failure to honestly respond to the court's
voir dire remains within the sound discretion of the trial court.").
"When considering a motion for a new trial based on the inadequacy or
excessiveness of the jury's verdict, the trial court must distinguish between awards
that are merely unduly liberal or conservative and awards that are actuated by
passion, caprice, or prejudice." Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27, 602
S.E.2d 772, 781 (2004). "If the amount of the verdict is grossly inadequate or
excessive so as to be the result of passion, caprice, prejudice, or some other
influence outside the evidence, the trial judge must grant a new trial absolute."
Harrison v. Bevilacqua, 354 S.C. 129, 140, 580 S.E.2d 109, 115 (2003) (quoting
O'Neal v. Bowles, 314 S.C. 525, 527, 431 S.E.2d 555, 556 (1993)). "The decision
to grant or deny a new trial absolute based on the excessiveness of a verdict rests in
the sound discretion of the trial court and will not ordinarily be disturbed on
appeal." Elam, 361 S.C. at 27, 602 S.E.2d at 781.
2
An amended order was filed August 22, 2018, because page nine of the original
order was missing.
3
See Rule 241(a), SCACR ("[T]he service of a notice of appeal in a civil matter
acts to automatically stay matters decided in the order . . . . This automatic stay
continues in effect for the duration of the appeal unless lifted by order of the lower
court . . . .").
LAW/ANALYSIS
A. Juror Concealment/Misconduct4
The City argues the circuit court erred in denying its motion for a new trial based
on juror misconduct. We disagree.
The jury rendered its verdict on May 18, 2017, the City's first motion for a new
trial was denied on June 27, 2017, and the City filed its second motion for a new
trial, based on newly discovered evidence of juror misconduct, on June 30, 2017.
Like the circuit court, we begin our analysis reviewing Rules 59 and 60(b),
SCRCP. Rule 59 does not apply because the motion was filed after the ten-day
limitation of Rule 59. As to Rule 60(b), we rely on Gray.
In Gray, a juror failed to respond to a voir dire question asking whether any jurors
had been treated by the defendant doctor in a malpractice action. 298 S.C. at 286,
379 S.E.2d at 895. The appellant filed an amended motion for a new trial more
than ten days after the verdict, but shortly after the juror's letter "lauding physicians
and criticizing people who sue doctors" was published in a newspaper. Id. In
addressing the timeliness of the motion, our supreme court stated,
It is our view that Rules 59 and 60(b) must be read
together. Rule 60(b), [SCRCP], reads in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons:
. . . (2) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59(b); . . . .
Id. at 287, 379 S.E.2d at 895. The court in Gray further noted as follows:
This issue was addressed in Smith v. Quattlebaum, 223
S.C. 384, 76 S.E.2d 154 (1953). In Smith, defendant
4
The parties alternately discuss the issue as juror concealment and juror
misconduct. Intentional juror concealment is a type of juror misconduct. 6 Wayne
R. LaFave, et al., Criminal Procedure § 24.9 (f) (4th ed. Dec. 2019 update).
moved for a new trial because of an after-discovered
relationship of juror to plaintiff. [Our supreme court]
ruled that the trial court had jurisdiction to hear a motion
for a new trial because of the after or newly-discovered
evidence exception. The Court stated further:
It is the duty of the trial [court] to ascertain
the qualifications of the jurors, and when the
discharge of this responsibility is thwarted
by mischance, or otherwise, it is within the
court's inherent power to remedy the
situation when brought to [its] attention,
even after sine die adjournment of court, by
the granting of a new trial, if in its
discretion, necessary. Smith, 76 S.E.2d at
157.
While the Smith case relied on S.C. Code Ann. § 10-1215(1952), the same principle applies under Rule 60(b). In
the instant case, the newly discovered evidence, [the
juror's] predisposition, was not discernible until [the
juror's] letter was published. Even with due diligence
this evidence could not have been discovered in time to
move for a new trial under Rule 59(b). We find that
appellant moved to amend his motion within a reasonable
time after discovery of evidence of [the juror's] bias and
prejudice and, in fact, before the trial court had ruled on
the original motion. We hold that appellant was entitled
to amend his motion for a new trial to include the
allegations of [the juror's] disqualification.
We now address whether the trial court properly
exercised its discretion in denying a motion for a new
trial. Granting or refusal of a new trial is directed to the
trial [court's] discretion. Jenkins v. Dixie Specialty Co.,
284 S.C. 425, 326 S.E.2d 658 (1985). A party seeking a
new trial based upon the disqualification of a juror
must show: (1) the fact of disqualification; (2) the
grounds for disqualification were unknown prior to
verdict; and (3) the moving party was not negligent in
failing to learn of the disqualification before verdict.
Thompson v. O'Rourke, 288 S.C. 13, 339 S.E.2d 505(1986). Thompson further enunciated the standard for
granting a new trial when it is discovered that a seated
juror fails to fully respond to voir dire questioning:
[R]elief is required only when the court
finds the concealed information would
have supported a challenge for cause, or
would have been a material factor in the
use of the party's peremptory challenges.
The inquiry must focus on the character
of the concealed information, not on the
mere fact that a concealment occurred.
Thompson, supra, 339 S.E.2d at 506.
Id. at 287−88, 379 S.E.2d at 895−96 (emphases added).
After finding the delay in filing the motion for a new trial justified under the first
test, the court in Gray then applied the second test and found the trial court erred in
denying the "motion for a new trial because these facts could have supported a
challenge for cause or could have been a material factor in the use of the
appellant's peremptory challenges." Id. at 288, 379 S.E.2d at 896.
In this case, the circuit court found the delay in filing the motion for a new trial
was not justified under the first test in Gray. The circuit court initially found the
foreman was not disqualified "simply because of his prior arrest." The court found
the City failed to produce any evidence the juror was disqualified; trial counsel did
not appear at the motions hearing; the City failed to produce any evidence
surrounding why the juror did not respond; and the City "provided insufficient
evidence to show this juror was or would have been disqualified."
As to the second and third requirements of the first test, the circuit court found
"[t]he grounds for the City's objection to the juror were known or could have been
known to the City." The information, a screen shot from an internet source,
appeared to have been created on or about May 21, 2016, which was at or near the
time of the juror's arrest. The City offered no evidence as to how the information
was found, who found the information, or when it was found. The City did not
provide any affidavits or other evidence to show it did not or could not have known
of the information prior to the verdict or within the time frame for posttrial
motions. The court distinguished this case from Gray, in which the appellant could
not have known about the information within the ten-day filing period for posttrial
motions. The court noted at least "two file repositories" with the information about
the juror were accessible to the City. The court found the City failed to address
whether searches of the repositories would have been burdensome, whether the
records were accessed by trial counsel, or why she could not have accessed them if
they were not accessed. The court concluded, "If the City found these records for
purposes of this motion, then it follows that with due diligence, the same
information was available prior to the verdict. . . . [The Rules] require[] that any
'after discovered evidence' must [be] newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial . . . ." The
court concluded the City was negligent in failing to learn of the alleged misconduct
prior to or within ten days after the verdict. The court distinguished Long, 342
S.C. at 570–71, 538 S.E.2d at 10−11, which found the defendant presented
sufficient evidence of the three elements necessary for the court to grant a new
trial. Thus, the court denied the City's second motion for a new trial.
Relying on Thompson, the City argues the trial court did not apply the proper test
for intentional concealment because the first element of the first test, whether the
juror is disqualified, is met if the concealed information would have supported a
challenge for cause or if the concealed information would have been a material
factor in the use of peremptory strikes.
In Thompson, two jurors failed to inform the court during voir dire that they had
been represented by the respondent's attorney. Thompson, 288 S.C. at 14, 339
S.E.2d at 506. The Thompsons moved for a new trial when they discovered by
searching courthouse records that the attorney or his firm had handled real estate
transactions for the respondent. Id. The trial court applied the three-part test and
found as to the first element that the jurors were not disqualified because the jurors'
relationship with the attorney was not sufficient to disqualify the jurors. Id. The
court in Thompson did not address the remaining two elements of the first test. Id.The court in Thompson distinguished State v. Gulledge, 277 S.C. 368, 287 S.E.2d
488 (1982), as follows:
In Gulledge, we held a new trial was warranted where a
juror failed to respond to voir dire questioning
concerning relationships with law enforcement
personnel. The juror was related by marriage to a police
officer who had custody of the defendant during trial and
who had viewed the crime scene.
The Thompsons argue Gulledge requires a new trial
whenever it is discovered that a seated juror failed to
respond to voir dire questioning. Gulledge is not a per se
rule. Rather, relief is required only when the court finds
the concealed information would have supported a
challenge for cause, or would have been a material factor
in the use of the party's peremptory challenges. The
inquiry must focus on the character of the concealed
information, not on the mere fact that a concealment
occurred.
Thompson, 288 S.C. at 15, 339 S.E.2d at 506.
As to the second test, the court in Thompson found counsel did not argue at the
trial level that the use of their preemptory challenges would have been altered by
disclosure of the information; thus, that issue was not preserved. Id. at 15, 339
S.E.2d at 506-07. The court in Thompson affirmed the trial court's denial of the
motion for a new trial. Id. at 15, 339 S.E.2d at 507.
The City also relies on State v. Woods, 345 S.C. 583, 550 S.E.2d 282 (2001), for
the second test, arguing the circuit court erred in never citing Woods. The City
argues the circuit court erred in never applying the second test.
In Woods, a juror failed to properly respond to a voir dire question despite having
worked as a victims' advocate in the solicitor's office. Id. at 585, 550 S.E.2d at
283. The defendant's counsel discovered the information after the verdict but prior
to sentencing and moved for a new trial. Id. During a hearing on the motion, the
juror testified she had worked as a volunteer victims' advocate for three years but
did not have significant interaction with the solicitor. Id. at 585-86, 550 S.E.2d at
283. The trial court denied the motion, this court reversed, and our supreme court
granted a writ of certiorari. Id. at 586, 550 S.E.2d at 283.
Our supreme court stated,
When a juror conceals information inquired into during
voir dire, a new trial is required only when the court
finds the juror intentionally concealed the information,
and that the information concealed would have supported
a challenge for cause or would have been a material
factor in the use of the party's peremptory challenges.
Where a juror, without justification, fails to disclose a
relationship, it may be inferred, nothing to the contrary
appearing, that the juror is not impartial. On the other
hand, where the failure to disclose is innocent, no such
inference may be drawn.
[T]he first inquiry in the juror disqualification analysis is
whether the juror intentionally concealed the information
during voir dire. However, . . . we [have] not precisely
define[d] what constitutes an intentional concealment.
We hold that intentional concealment occurs when the
question presented to the jury on voir dire is reasonably
comprehensible to the average juror and the subject of
the inquiry is of such significance that the juror's failure
to respond is unreasonable. Unintentional concealment,
on the other hand, occurs where the question posed is
ambiguous or incomprehensible to the average juror, or
where the subject of the inquiry is insignificant or so far
removed in time that the juror's failure to respond is
reasonable under the circumstances.
***
[W]here a juror's response to voir dire amounts to an
intentional concealment, the movant need only show that
the information concealed would have supported a
challenge for cause or would have been a material factor
in the use of the party's peremptory challenges. Where
the juror's failure to disclose information is "without
justification," i.e., intentional, the juror's bias will be
inferred. Conversely, where the failure to disclose is
innocent, no inference of bias can be drawn.
Id. at 587, 550 S.E.2d at 284-85 (citations omitted). The court found the juror's
concealment was intentional and her relationship with the solicitor's office would
support a challenge for cause because her concealment prevented the defendant's
intelligent use of his preemptory challenges. Id. at 590, 550 S.E.2d at 285. The
court in Woods did not address the first test. Id. We note, however, that the
motion for a new trial was made prior to sentencing in Woods. Id. at 585, 550
S.E.2d at 283.
Even if we were to agree with the City that the circuit court erred in finding the
juror was not disqualified, we find the City must also show error in the circuit
court's findings as to the second and third elements of the test: the grounds for
disqualification were unknown prior to verdict and the movant was not negligent in
failing to learn of the disqualification before verdict. Thompson, 288 S.C. at 14,
339 S.E.2d at 506. On these elements, the City again relies on Long.
In Long, the plaintiff filed an action alleging injury arising from the repossession
of her vehicle. Long, 342 S.C at 565, 538 S.E.2d at 7. The jury awarded damages,
and the judgment was entered on May 12, 1998. Id. at 566, 538 S.E.2d at 8. On
June 1, 1998, the defendant moved for relief under Rule 60(b), SCRCP, alleging a
juror failed to reveal his vehicle was repossessed in 1996 despite a voir dire
question on the matter. Id. The defendant indicated it investigated the juror due to
a seeming preference for the plaintiff during the trial. Id. The defendant
supplemented the motion with an affidavit concerning the repossession by the
defendant's financial services manager and an affidavit of admission by the juror
stating in part, "I was selected as a juror because I did not admit that my car had
been repossessed." Id. at 567, 538 S.E.2d at 8. The plaintiff submitted a second
affidavit by the juror, which indicated he did not hear or understand the voir dire
question, and he could be impartial. Id. The trial court set aside the verdict. Id.
On appeal, this court first employed the three-part test from Gray, stating "a party
must demonstrate: 1) the fact of disqualification; (2) the grounds for
disqualification were unknown prior to verdict; and (3) the moving party was not
negligent in failing to learn of the disqualification before verdict." Id. at 570, 538
S.E.2d at 10. The court found the juror was disqualified because the question was
specifically aimed at potential jurors who had lost vehicles due to a creditor and
the judge had disqualified two similarly situated jurors who responded to the voir
dire question. Id. at 570−71, 538 S.E.2d at 10.
The court also found the defendant met the second element, the ground for
disqualification was unknown prior to verdict, noting that in a posttrial hearing, the
defendant maintained "it had no knowledge of [the juror's] past vehicle
repossession." Id. at 571, 538 S.E.2d at 10.
Finally, the court found the defendant was not negligent in failing to identify the
disqualification before the verdict. Id. The court found between two hundred and
three hundred persons were summoned for jury service for the relevant term and
due diligence did not require a defendant to "incur the significant expenses related
to assembling information on every jury pool member's finances and credit
history." Id. at 571, 538 S.E.2d at 11. After finding the defendant met all of the
elements of the first test, the court next found the concealed information would
have supported a challenge for cause or would have been a material factor in the
use of the party's peremptory challenges. Id. at 572−73, 538 S.E.2d at 11.
Unlike in Long, the circuit court in this case found the City failed to meet all of the
elements of the first test. We affirm, finding no abuse of discretion by the circuit
court in finding the City failed to meet the second and third elements. See
Thompson, 288 S.C. at 14, 339 S.E.2d at 506 ("A party seeking a new trial based
upon the disqualification of a juror must show: (1) the fact of disqualification; (2)
the grounds for disqualification were unknown prior to verdict; and (3) the moving
party was not negligent in failing to learn of the disqualification before verdict.");
Long, 342 S.C. at 568, 538 S.E.2d at 9 (stating the grant "of a new trial based on a
juror's failure to honestly respond to the court's voir dire remains within the sound
discretion of the trial court"); id. (explaining an appellate court will not reverse a
circuit court's decision to deny a new trial motion absent an abuse of discretion);
McCoy v. State, 401 S.C. 363, 371, 737 S.E.2d 623, 628 (2013) ("[E]valuating the
merits of a juror misconduct claim is a fact-intensive inquiry, which is most
appropriately conducted after a hearing."); State v. Bryant, 354 S.C. 390, 395, 581
S.E.2d 157, 160 (2003) ("In cases where a juror's partiality is questioned after trial,
it is appropriate to conduct a hearing in which the defendant has the opportunity to
prove actual juror bias."). The circuit court in this case afforded the City a hearing;
however, the City presented little evidence to explain its delay in filing its motion
for a new trial. Because we affirm the circuit court's findings on the first test, we
need not reach the second test.
B. New Trial Nisi Remittitur
The City also argues the circuit court erred in denying its motion for new trial nisi
remittitur. We disagree.
During pretrial motions, Hassell consented to requesting no jury charges indicating
punishment because punitive damages were not allowed against the City. During
closing argument, Hassell suggested damages of Hassell's "salary of $48,000 a
year . . . multipl[ied] . . . by about four [$192,000]. . . . You . . . may want to go
higher. . . . But you can use that as a benchmark . . . . " During the City's closing
argument, the City conceded a verdict in Hassell's favor would be appropriate if
the jury found no probable cause for the arrest and suggested the jury should
compensate Hassell by approximately $6,475, calculated at $400 per hour while
Hassell was at the jail, plus the cost of towing his vehicle. After the City's closing
argument, Hassell's counsel asked the jury to award five times Hassell's annual
salary because the City was still hurting Hassell by stating in its closing argument
that he got what he deserved. The City did not object to the closing arguments.
"A trial court may grant a new trial absolute on the ground that the verdict is
excessive or inadequate." Howard v. Roberson, 376 S.C. 143, 154, 654 S.E.2d
877, 883 (Ct. App. 2007). "The jury's determination of damages, however, is
entitled to substantial deference." Id. "The trial [court] must grant a new trial
absolute if the amount of the verdict is grossly inadequate or excessive so as to
shock the conscience of the court and clearly indicates the figure reached was the
result of passion, caprice, prejudice, partiality, corruption or some other improper
motives." Id. "Alternatively, the trial court may grant a new trial nisi additur or
remittitur when it finds the verdict is merely inadequate or excessive." Id. "The
granting of a motion for new trial nisi additur or remittitur rests within the sound
discretion of the trial court, but substantial deference must be afforded to the jury's
determination of damages." Id. at 155, 654 S.E.2d at 883. "Compelling reasons
must be given to justify invading the jury's province in this manner." Id.
"The grant or denial of new trial motions rests within the discretion of the trial
[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." Proctor v. Dep't of Health & Envtl. Control, 368 S.C. 279, 319−20,
628 S.E.2d 496, 518 (Ct. App. 2006). "Great deference is given to the trial [court,
which] 'heard the evidence and is more familiar with the evidentiary atmosphere at
trial,' and . . . thus 'possesses a better-informed view of the damages than this
[c]ourt.'" Id. at 320, 628 S.E.2d at 518 (quoting Vinson v. Hartley, 324 S.C. 389,
405-06, 477 S.E.2d 715, 723 (Ct. App. 1996)).
The City cites to cases it asserts had less egregious facts with smaller verdicts. See
Solanki v. Wal-Mart Store No. 2806, 410 S.C. 229, 241, 763 S.E.2d 615, 621 (Ct.
App. 2014) (addressing only the punitive damages award, but affirming an award
of $50,000 in actual damages and $225,000 in punitive damages where the plaintiff
spent six nights in jail after being negligently arrested); Swicegood v. Lott, 379
S.C. 346, 356, 665 S.E.2d 211, 216 (Ct. App. 2008) (affirming an award of
$150,000 on an abuse of process claim as neither "so excessive as to shock the
conscience, nor the result of passion, caprice, prejudice, partiality, corruption or
some other improper motives" where the plaintiff lost his job and was subjected to
extensive humiliation). Hassell counters, citing cases with less egregious facts and
similar damages, particularly if compared to the rate per hour of false arrest. See,
e.g., Caldwell v. K-Mart Corp., 306 S.C. 27, 32−33, 410 S.E.2d 21, 24−25 (Ct.
App. 1991) (affirming an award of $75,000 for false imprisonment for fifteen
minutes when the plaintiff sought damages for humiliation, embarrassment, mental
distress, mental anguish, and human indignity).
We find the circuit court did not err by denying the City's motion for a new trial
nisi remittitur. First, the jury's award of $200,075 was within the range suggested
to the jury. See Burke v. AnMed Health, 393 S.C. 48, 57, 710 S.E.2d 84, 89 (Ct.
App. 2011) ("[A]s an appellate court, we sit neither to determine whether we agree
with the verdict nor to decide whether we agree with the trial [court]'s decision not
to disturb it. . . . [W]e employ a highly deferential standard of review when
considering the trial [court]'s ruling on each of the grounds for a new trial. In
exercising this deference, we recognize the unique position of the trial [court] to
hear the evidence firsthand, evaluate the credibility of the witnesses, and assess the
impact of the wrongful conduct on the plaintiff in terms of damages."); Curtis v.
Blake, 392 S.C. 494, 501, 709 S.E.2d 79, 82 (Ct. App. 2011) (refusing to disturb
the trial court's denial of motions for a new trial absolute and nisi remittitur
although the jury awarded the plaintiff $450,000 in actual damages, the plaintiff
only claimed $4,530.98 in medical bills and $2,615.76 in lost wages, and the
plaintiff's doctors believed he had recovered from his pain). Furthermore, the
award was not "grossly . . . excessive so as to shock the conscience of the court and
clearly indicate[] the figure reached was the result of passion, caprice, prejudice,
partiality, corruption or some other improper motives." Howard, 376 S.C. at 154,
654 S.E.2d at 883. Accordingly, we find the circuit court did not err by denying
the City's motion for a new trial nisi remittitur.
As to the City's argument that Hassell inappropriately argued to the jury to
consider the City needed to "pay attention" and "care," we find the issue is not
preserved for appellate review. The City failed to object to Hassell's closing
argument and cannot raise the issue for the first time in its motion for a new trial or
on appeal. See Patterson v. Reid, 318 S.C. 183, 185, 456 S.E.2d 436, 437 (Ct.
App. 1995) ("A party cannot for the first time raise an issue by way of a Rule 59(e)
motion which could have been raised at trial."); Scott v. Porter, 340 S.C. 158, 167,
530 S.E.2d 389, 393 (Ct. App. 2000) ("Ordinarily, if an appellant fails to object the
first time a statement is made, he or she waives the right to raise the issue on
appeal.").
CONCLUSION
Based on the foregoing, the circuit court's denials of the City's motion for a new
trial based on juror misconduct and motion for a new trial nisi remittitur are
AFFIRMED.5
KONDUROS and MCDONALD, JJ., concur.
5
We decide this case without oral argument pursuant to Rule 215, SCACR.