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Samples v. Mitchell12/19/1997
ORDER
After reviewing the Petition for Rehearing in this case, it is ordered that the opinion heretofore filed be withdrawn and the attached opinion be substituted. The Petition for Rehearing is denied.
AND IT IS SO ORDERED.
Columbia, South Carolina
December 19, 1997
Appeal from Greenville County H. Dean Hall, Circuit Court Judge
Submitted October 8, 1997
Filed November 3, 1997
REVERSED AND REMANDED
Rose Marie Samples moved for a new trial after she received an unfavorable jury verdict. The trial court denied her motion. She appeals. We reverse and remand for a new trial.
FACTS
Vincent Louis Mitchell rear-ended Samples in April 1990. Mitchell admitted negligence, but contested proximate cause and damages. On April 12 and 15, 1993, Mitchell's investigator filmed a video which showed Samples removing laundry from a clothesline, watching a ball game, and using her left hand to open a gate.
Two months later, on June 10, 1993, Samples served Mitchell with standard interrogatories. Mitchell's attorney first answered the interrogatories on July 13, 1993, and subsequently sent a second set of answers on November 17, 1993. In neither did she disclose the existence of the video tape nor the name of the investigator as a potential witness.
On October 24, 1995, a week before trial, Mitchell's lawyer deposed Samples' mother, June Marie Moser, de bene esse, because she would not be available at trial. Mitchell's attorney specifically questioned Moser about Samples' ability to hang out clothes, to attend her children's sporting events, and to use the left side of her body. Immediately after the deposition, Mitchell's lawyer told Samples' lawyer about the video. That afternoon she sent him a copy.
At trial Samples' lawyer offered Moser's deposition into evidence. Subsequently, Mitchell's attorney offered the video tape, and Samples' attorney objected. The trial judge allowed the video tape over Samples' objection, but refused to allow the investigator to interpret it.
ANALYSIS
Mitchell argues in a footnote Samples failed to preserve her argument concerning the video because her counsel failed to object immediately prior to the introduction of the video tape.
Making a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced. State v. Simpson, S.C. , 479 S.E.2d 57 (1996), cert. denied, 117 S. Ct. 2460 (1997).
Despite the fact the judge in this case called the motion one in limine, he ruled on it during the trial, immediately prior to the introduction of the evidence in question. Our court has held:
"Because no evidence was presented between the ruling and testimony, there was no basis for the trial court to change its ruling. Thus, . . . motion was not a motion in limine. The trial court's ruling in this instance was in no way preliminary, but to the contrary, was a final ruling. Accordingly, [the defendant] was not required to renew her objection to the admission of the testimony in order to preserve the issue for appeal." State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410 (Ct.App. 1995).
Here no opportunity existed for the court to change its ruling. Therefore, the issue was properly preserved for review.
We next inquire whether or not the surveillance video was discoverable evidence. Mitchell first claims the video was not
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