THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Timothy M. Carter,        Respondent,

v.

Marion Elizabeth Morris,        Appellant.

Appeal From Florence County
 B. Hicks Harwell, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-648
Heard October 13, 2004 – Filed December 21, 2004

AFFIRMED

Patrick W. Carr, of Charleston. for Appellant.

William P. Hatfield, Robert D. McKissick, of Florence, for Respondent.

HEARN, C.J.:  Marion Elizabeth Morris appeals the trial court’s order granting Timothy M. Carter’s motion for a new trial, arguing the trial court judge abused his discretion in considering offers of settlement and in failing to view the evidence in the light most favorable to the nonmoving party.  We affirm.

FACTS

Carter and Morris were involved in an automobile accident on March 30, 2001.  At the time of the accident, Carter was stopped at an intersection and was immediately preceded by the vehicle driven by his wife.  After the traffic light turned green, Carter and his wife proceeded forward, but both slowed for another vehicle turning in front of them.  After the other driver made his turn, Carter’s wife moved forward.  According to Carter, he had taken his foot off the brakes but had not yet pressed the gas when he was rear-ended by Morris. 

The impact from the collision caused the rear axle of Carter’s vehicle to bend and the back end to fly into the air.  The front end of Morris’s car slid underneath Carter’s SUV and sheared the cable securing the spare tire underneath.  The tire was thrown between seventy-five and one hundred feet before it landed in a nearby field.  The impact also pushed Carter’s vehicle between twenty-five and forty feet forward.  Following the accident, Carter complained of injuries to his neck, back, and hands.

At trial, Morris admitted negligence but contested the issues of proximate cause and damages.  The jury returned a verdict in favor of Morris.  Carter immediately moved for a new trial under the thirteenth juror doctrine and for a new trial absolute based on the gross inadequacy of the verdict.  Morris opposed the motion, arguing there was contradictory evidence regarding to causation and asserting that a new trial based on the inadequacy of the verdict was inappropriate because Carter never moved for a directed verdict.  In deciding the motion, the judge orally set forth the legal principles for both the thirteenth juror and the new trial absolute doctrines.  He further stated:

The Court has to set aside, not being relevant, any negotiation that takes place prior to trial or during the trial, but I can’t ignore the fact that I know there were negotiations and the Plaintiff didn’t think it was sufficient or adequate.  There are substantial offers that have been made in this case by the Defendant and of course that doesn’t become an issue or question of law for a hearing.  But I know in the Defendant’s attempt to resolve it, evaluate it, and to make an offer of a substantial sum of money and during the discovery period and the exchange of interrogatories and depositions that the Defense, in their approach to the case, they had an exposure to liability and they don’t make substantial offers if they don’t feel that the Plaintiff’s got [sic] a case, legitimate injury of proof as to carpal syndrome. That is the crux of the case in the defense. 

No objection was made to the trial judge’s discussion of settlement negotiations.

The trial judge granted the motion for a new trial without stating under which doctrine.  From this order, Morris appeals. 

LAW/ANALYSIS

Morris first argues the trial judge abused his discretion and committed an error of law by considering settlement negotiations when he granted Carter’s motion for a new trial.  We find this issue is not preserved for our review. 

Generally, an issue must be raised to and ruled upon by the trial judge in order to be preserved for appellate review.  Talley v. South Carolina Higher Educ. Tuition Grants Comm., 289 S.C. 483, 487, 347 S.E.2d 99, 101 (1986).  A matter that was not raised to or ruled upon by the trial court cannot be considered by this court.  Id. at 487, 347 S.E.2d at 101.  “Where a question has not been decided by the lower court, this court will not consider it on appeal.”  Mason v. Gossett, 303 S.C. 466, 468, 401 S.E.2d 425, 426 (Ct. App. 1991) (citations omitted). 

In Mason, the appellant argued that the trial judge erred in granting a new trial solely on damages, as opposed to granting a new trial on damages and liability, because such a ruling was in violation of a statute and because the issues were so inextricably intertwined that they should be tried together.  This court found the issues not preserved for appeal because the appellant made no objection to the judge’s grant of a new trial on damages alone and because the arguments raised on appeal were not raised to the trial court by Rule 59(e) motion.  Id. at 467-68, 401 S.E.2d at 426.   The court noted that because the issue concerning the statutory violation was not raised, that point of law was not ruled upon.  Id. at 468, 401 S.E.2d at 426.

Similarly, in this case, the issue concerning improper consideration of settlement negotiations was not raised to the trial judge by objection at the time of the statement.  After Carter moved for a new trial, the judge set forth his reasons for granting the new trial on the record.   The judge reasoned initially that he could not consider settlement negotiations because they were irrelevant, but then stated that “I can’t ignore the fact that I know there were negotiations and the Plaintiff didn’t think it was sufficient or adequate.”  Morris did not contemporaneously object to the judge’s consideration of the settlement negotiations.  Because this particular objection was not ruled upon by the trial court, it is not preserved for appeal.  See id.; see also Portman v. Garbade, 337 S.C. 186, 189, 90, 522 S.E.2d 830, 832 (Ct. App. 1999) (finding argument that judge improperly considered evidence outside the scope of Rule 12(B)(6) when granting the motion to dismiss not preserved for appeal when the issue was not raised to or ruled on by the trial judge either by objection or by Rule 59(e) motion). 

Morris also contends the trial judge erred by failing to consider the evidence in the light most favorable to the non-moving party when he granted Carter’s motion for a new trial.  We disagree. 

Under the thirteenth juror doctrine, “a trial judge may grant a new trial upon the facts if the judge determines the verdict ‘is contrary to the fair preponderance of the evidence.’”  McEntire v. Mooregard Exterminating Servs., Inc.,  353 S.C. 629, 631, 578 S.E.2d 746, 74 (Ct. App. 2003) (quoting Dent v. Redd, 270 S.C. 585, 586, 243 S.E.2d 460, 460 (1978)).  The trial judge weighs the evidence and does not view it in the light most favorable to the non-moving party.  Id. 

However, the trial court may also grant a new trial if the verdict is excessive or inadequate.  Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 805 (1993).  “The trial court should grant a new trial based on the excessiveness of the verdict only if the amount is not merely different from that which he would have awarded, but is so grossly excessive so as to shock the conscience of the court and clearly indicates that the figure reached was the result of caprice, passion, prejudice, partiality, corruption, or other improper motives.” Id. at 379-80, 426 S.E.2d at 805. The trial judge must consider the evidence in the light most favorable to the non-moving party.  McEntire, 353 S.C. at 631, 578 S.E.2d at 748.   

As a threshold matter, we must determine whether the trial judge granted the motion for a new trial under the thirteenth juror doctrine or as a new trial absolute.  Neither the judge’s oral order nor his written order specifies under which doctrine he granted the new trial.   However, it is axiomatic that a party must first be found entitled to damages before the amount of damages can be determined or challenged as inadequate.  Therefore, we find the judge could only have granted a new trial based on the thirteenth juror doctrine because a new trial absolute based on the gross inadequacy of the verdict is improper when the verdict is in favor of the non-moving party.   See Harrison v. Bevilacqua,  354 S.C. 129, 140, 580 S.E.2d 109, 115 (2003) (“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.” (emphasis added)); Trivelas v. South Carolina Dept. of Transp., 357 S.C. 545, 551, 593 S.E.2d 504, 507 (Ct. App. 2004) (“South Carolina's thirteenth juror doctrine allows the circuit court judge to grant a new trial absolute when the judge finds the evidence does not justify the verdict.”) (emphasis added)).  Thus, the trial judge was not required to view the evidence in the light most favorable to the Morris.  See McEntire,  353 S.C. at 631, 578 S.E.2d at 747 (stating that under the thirteenth juror doctrine, the trial judge does not view it in the light most favorable to the non-moving party).

Moreover, Morris did not file a Rule 59(e) motion seeking clarification on whether the judge granted a new trial based on the thirteenth juror or on the ground that the verdict was grossly inadequate.  Thus, this issue is not preserved for appeal because the trial judge was never afforded the opportunity to clarify his order.  See Talley, 289 S.C. at 487, 347 S.E.2d at 101 (stating that an issue must be raised to and ruled upon by the trial judge in order to be preserved for review); Nelums v. Cousins  304 S.C. 306, 307-08, 403 S.E.2d 681, 681-82 (Ct. App. 1991) (finding appellant’s argument that the judge failed to be specific in his order not preserved for review because no Rule 59(e) motion was made asking the judge to clarify the order).

Accordingly, the order granting Carter a new trial is hereby

AFFIRMED.

HUFF and KITTREDGE, JJ., concur.