McCarthy v. The Cliffs Communities

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

Kevin McCarthy and Courtney R. McCarthy, Appellants,

v.

The Cliffs Communities, LLC d/b/a The Cliffs at
Keowee Falls South, Keowee Falls Investment Group,
LLC; Cliffs Real Estate, Inc., The Cliffs Golf and
Country Club, Inc., and S&ME, Inc., Defendants,

Of whom S&ME, Inc. is the Respondent.

Appellate Case No. 2013-001843

Appeal From Greenville County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2015-UP-436
Heard June 2, 2015 – Filed August 19, 2015

AFFIRMED

Thomas Elihue Dudley, III, and Townes Boyd Johnson,
III, both of Kenison, Dudley & Crawford, LLC, of
Greenville, for Appellants.

Stephanie Holmes Burton, of Gibbes Burton, LLC, of
Spartanburg, for Respondent.
PER CURIAM: This professional negligence action arises out of Kevin and
Courtney McCarthy's allegation that S&ME, Inc. (S&ME) failed to identify an
active deep seated slope failure during a geotechnical investigation it conducted on
and around their lakefront lot at Jasmine Cove of the Cliffs at Keowee Falls South.
The McCarthys appeal the circuit court's denial of their motion to amend as well as
the grant of S&ME's motion for summary judgment and subsequent denial of the
McCarthys' motion to alter or amend. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to whether the circuit court erred in denying the McCarthys' motion to
amend: Health Promotion Specialists, LLC v. S.C. Bd. of Dentistry, 403 S.C. 623,
632, 743 S.E.2d 808, 813 (2013) (finding the circuit court properly denied party's
motion to add a cause of action to its complaint because amendment did not occur
until three years after filing of complaint and undertaking of extensive discovery,
particularly when there were no significant factual developments that warranted
the untimely amendment); Jennings v. Jennings, 389 S.C. 190, 209, 697 S.E.2d
671, 681 (Ct. App. 2010) rev'd on other grounds, 401 S.C. 1, 736 S.E.2d 242
(2012) ("Although leave to amend should generally be 'freely given,' this court has
held that it may be denied where the proposed amendment would be futile.");
Collins Entm't, Inc. v. White, 363 S.C. 546, 562, 611 S.E.2d 262, 270 (Ct. App.
2005) ("The prejudice that Rule 15[, SCRCP] envisions is a lack of notice that the
new issue is to be tried and a lack of opportunity to refute it." (citing Tanner v.
Florence Cnty. Treasurer, 336 S.C. 552, 558–59, 521 S.E.2d 153, 156 (1999)));
Ball v. Canadian Am. Exp. Co., 314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct. App.
1994) ("Prejudice occurs when the amendment states a new claim or defense that
would require the opposing party to introduce additional or different evidence to
prevail in the amended action."); Johnson v. Oroweat Foods Co., 785 F.2d 503,
510 (4th Cir. 1986) (finding prejudice can result when a proposed amendment is
offered shortly before or during trial and raises a new legal theory that would
require gathering and analysis of facts not already considered by opposition).

2. As to whether the circuit court erred in granting SM&E's motion for
summary judgment: Oblachinski v. Reynolds, 391 S.C. 557, 561, 706 S.E.2d 844,
845–46 (2011) (citation omitted) ("An essential element in a cause of action based
upon negligence is the existence of a legal duty of care owed by the defendant to
the plaintiff. Without a duty, there is no actionable negligence."); Sapp v. Ford
Motor Co., 386 S.C. 143, 150, 687 S.E.2d 47, 51 (2009) (emphasizing that "the
exception announced in Kennedy [v. Columbia Lumber & Mfg. Co., 299 S.C. 335,
384 S.E.2d 730 (1989)] is a very narrow one, applicable only in the residential real
estate construction context."); Jensen v. Anderson Cnty. Dep't of Soc. Servs., 304
S.C. 195, 199, 403 S.E.2d 615, 617 (1991) ("An affirmative legal duty [of care] . . .
may be created by statute, contract relationship, status, property interest, or some
other special circumstance."); Hurst v. Sandy, 329 S.C. 471, 480, 494 S.E.2d 847,
851 (Ct. App. 1997) (finding that a licensing statute will not ordinarily provide a
basis for a negligence per se action).

3. As to whether the circuit court erred in finding the McCarthys were not
entitled to an award of punitive damages against respondent: Taylor v. Medenica,
324 S.C. 200, 220, 479 S.E.2d 35, 46 (1996) (explaining that punitive damages
may only be awarded where the plaintiff proves by clear and convincing evidence
the defendant's misconduct was willful, wanton, or in reckless disregard of the
plaintiff's rights); Cook v. Atl. Coast Line R.R. Co., 183 S.C. 279, 190 S.E. 923,
925 (1937) (finding that there must be an award of actual or nominal damages for a
verdict of punitive damages to be supported).

AFFIRMED.

SHORT, LOCKEMY, and MCDONALD, JJ., concur.