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Mizell v. Glover9/3/2002
en asked if Dr. Marne committed fraud, and they answered that the fraud claim could not survive because of a statute of limitations problem. After the interrogatories were returned, the court entered judgment against Dr. Marne that did not include fraud. While a motion for a new trial was pending, the parties settled the matter. Accordingly, the Mizells argue there was no final judgment.
At the Mizells' trial against Dr. Glover, Dr. Marne, a podiatrist, testified as an expert for the Mizells. The Mizells filed a motion in limine before trial to exclude any evidence relating to Minnesota Life's lawsuit against Dr. Marne. The court denied the motion, and the Mizells renewed their motion immediately before Dr. Marne's testimony. In arguing against the motion, Dr. Glover's counsel contended the interrogatory in question was admissible under Rule 608, SCRE "as a matter affecting the credibility of the witness." The court denied the motion again, stating it would allow questioning of Dr. Marne regarding the trial for impeachment purposes pursuant to Rule 608, SCRE.
The Court of Appeals' opinion on this issue was split. Judge Goolsby found the question regarding the jury interrogatory did not constitute extrinsic evidence. Mizell v. Glover, 339 S.C. 567, 529 S.E.2d 301 (Ct. App. 2000). Judge Connor, joined by Judge Howard, found the issue was not preserved for review. Id. Although she declined to address the issue fully, Judge Connor stated she believed, even if the interrogatory was inadmissible extrinsic evidence, that the error was harmless in light of Dr. Marne's other testimony regarding the suit. Id.
Dr. Glover argues the Court of Appeals should be affirmed on this issue because it was not preserved for review. We disagree. In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court. Holy Loch Distributors Inc. v. Hitchcock, 340 S.C. 20, 531 S.E.2d 282 (2000); Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998).
In this case, the Mizells raised this issue - exclusion of the evidence from the Minnesota Life suit - on two occasions. During the arguments on the second motion, Dr. Glover's counsel argued specifically that the interrogatory from the civil suit was admissible under Rule 608, SCRE. The trial court agreed with Dr. Glover and admitted the evidence under Rule 608. We believe this issue was preserved through the Mizells' two motions. Rule 608 was the only ground given by the trial court for admitting the motion. As such, it is only fair that the Mizells be able to argue that the trial court erred when it admitted the interrogatory under that Rule.
Because we find the issue was preserved for review, we must address whether or not Dr. Glover's question in which he recited the jury interrogatory and answer verbatim constituted improper extrinsic evidence (prohibited under Rule 608(b), SCRE). The Mizells argue this question, even without admission of the physical record of the interrogatory, constituted improper extrinsic evidence. To the contrary, Dr. Glover contends there is a distinction between admitting the physical record of the jury interrogatory and admitting the oral record of the interrogatory, and that the oral record does not qualify as extrinsic evidence.
Rule 608(b) permits inquiry into specific instances of a witness' conduct during cross-examination, if such conduct is probative of the witness' truthfulness or untruthfulness. The Rule specifically states that such instances of conduct may not be proved by extrinsic evidence. All parties agree that documentary evidence, such as the record containing the jury interrogatory and response, would be inadmissible as
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