Watkins v. Sterling Healthcare, Inc.

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

Jean Watkins, as Personal Representative of the Estate of
Mildred Watkins, Respondent,

v.

Sterling Healthcare, Inc., Country Wood Nursing Center,
LLC, and Guardian Resources, LLC, Appellants.

Appellate Case No. 2018-000924

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2021-UP-324
Submitted May 3, 2021 – Filed September 8, 2021

AFFIRMED

Emily Kate Brobston Cappelmann, of Lewis Brisbois
Bisgaard & Smith, LLP, of Savannah, GA, for
Appellants.

Jennifer Randolph Purdy, of Popowski & Shirley, P.A.,
of Columbia, for Respondent.

PER CURIAM: Sterling Healthcare, Inc., Country Wood Nursing Center, LLC,
and Guardian Resources, LLC (collectively, Appellants) appeal the trial court's
order striking Appellants' answers as a sanction for not complying with a discovery
order involving Jean Watkins as the personal representative of the estate of
Mildred Watkins (Respondent). We affirm.

Appellants argue the circuit court's order failed to make the requisite factual
findings to support its ruling. In their reply brief, they state, "The crux of this
appeal is not whether Respondent provided factual support for her arguments, nor
whether the trial court had the opportunity to mull over those points." They
continue, "Because even if this Court were to accept both as given, the issue
persists: the trial court failed to set forth an adequate basis for the exercise of its
discretion to strike Appellants' Answers." Appellants did not file a motion to alter
or amend asking the trial court to address this alleged failure. Accordingly, we
hold this issue is not preserved for appellate review. See Jackson v. Speed, 326
S.C. 289, 311, 486 S.E.2d 750, 761 (1997) (holding because the appellant failed to
object either at the hearing or in their motion to alter or amend that the trial judge
failed to make findings of fact concerning the specific costs expended, the issue is
not preserved for appellate review); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first
time on appeal, but must have been raised to and ruled upon by the trial judge to be
preserved for appellate review."); Summer v. Carpenter, 328 S.C. 36, 43, 492
S.E.2d 55, 58 (1997) (stating that when a trial court did not explicitly rule on an
issue in its order and appellant did not make a Rule 59, [South Carolina Rules of
Civil Procedure (SCRCP)], motion for a ruling, the issue is not preserved for
appellate review); Padgett v. Mercado, 341 S.C. 229, 233, 533 S.E.2d 339, 341
(Ct. App. 2000) (stating "[a]ny argument alleging an inaccuracy or inconsistency in
an order must be raised by a post-trial motion"); Dixon v. Besco Eng'g, Inc., 320
S.C. 174, 178, 463 S.E.2d 636, 638 (Ct. App. 1995) (holding an appellant's
argument that the entry of default should be reversed because the trial court
neglected to make specific findings of certain factors was not preserved for
appellate review because the appellant failed to raise the issue to the trial court in a
post-trial motion); Buist v. Buist, 410 S.C. 569, 577, 766 S.E.2d 381, 385 (2014)
(stating argument that the family court did not adequately apply factors concerning
award of attorney's fees was not preserved when husband's argument in Rule 59(e)
motion was not sufficiently specific).

Appellants also argue the trial court failed to consider whether lesser sanctions
could achieve justice. This issue is unpreserved because Appellants never raised
this argument at the hearing; instead, Appellants only generally asserted sanctions
should not be ordered, and they never filed a Rule 59(e), SCRCP, motion. See S.C.
Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d
903, 907 (2007) (stating "it is a litigant's duty to bring to the court's attention any
perceived error, and the failure to do so amounts to a waiver of the alleged error");
Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("It is axiomatic that an issue
cannot be raised for the first time on appeal, but must have been raised to and ruled
upon by the trial judge to be preserved for appellate review.").

AFFIRMED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.