Hall v. Bell

THE STATE OF SOUTH
CAROLINA

In The Court of
Appeals

Ella R. Hall,       
Appellant,

v.

Anne Middleton Bell, Esquire,       
Respondent.

Appeal From Sumter
County

L. Henry McKellar,
Circuit Court Judge

Unpublished Opinion
No. 2004-UP-008

Submitted October 6, 2003 – Filed January 14, 2004

AFFIRMED

Ella R. Hall, of Hartsville, Pro
Se.

William C. Cleveland,
of Charleston, for Respondent.

PER CURIAM:  Ella
R. Hall appeals from the circuit court’s grant of summary judgment to defendant
Anne M. Bell.  We affirm. [1]

FACTS

The chief complaint in this case
centers upon Hall’s allegation that Bell committed legal malpractice in failing
to file an action against Hall’s former employer Commander Nursing Home (“Commander”). 
Hall became the subject of an investigation by the South Carolina Board of
Nursing (the “Board”) when Commander notified the Board that it suspected
Hall of diverting the drug Phenergan from the home.

Hall hired Bell to represent
her in August 1997.  Bell admits Hall spoke with her about filing an action
against Commander as well as defending Hall in front of the Board.  However,
Bell maintains she informed Hall they should concentrate on the case before
the Board first, as a determination by the Board that Hall did divert drugs
from the home would render a subsequent suit against Commander as moot.  At
no point did Bell agree to bring a suit against Commander on Hall’s behalf. 
Hall does not dispute Bell provided such advice. 

Subsequently, Hall became dissatisfied
with Bell’s representation.  After seeking other representation Hall terminated
Bell’s employment in March 1998.  The Board subsequently dismissed the investigation
into the Phenergan incident at Commander in Hall’s favor. 

After the Board’s investigation
was dismissed, Hall filed suit against Bell alleging three causes of action
and requesting $5.5 million dollars in damages.
[2]   Hall later amended her complaint alleging two additional causes
of action. 

Bell moved for summary judgment
arguing the scope of her employment involved only representing Hall in front
of the Board.  Additionally, Bell argued, even if a genuine issue of fact
existed, at the time of Hall’s termination of her employment the statute of
limitations had not elapsed and Hall had retained other counsel. 

The circuit court agreed and
granted summary judgment in favor of Bell.  Hall now appeals.

STANDARD OF REVIEW

Summary judgment is proper when
there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.  Rule 56(c), SCRCP; South Carolina
Prop. and Cas. Guar. Assoc. v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880,
883 (Ct.App. 2001).  To determine whether any material facts exist, the evidence
and all inferences, which can be reasonably drawn therefrom, must be viewed
in the light most favorable to the nonmoving party.  Id.  Summary judgment
is not appropriate where further inquiry into the facts of the case is desirable
to clarify the application of the law.  Id.  An appellate court reviews
the granting of summary judgment under the same standard applied by the trial
court.  Id. 

LAW/ANALYSIS

Hall appeals from the circuit court’s grant of summary
judgment and alleges thirteen instances of error in the trial judge’s ruling.
The allegations of error will be grouped into two categories:  1) whether
there are procedural irregularities in circuit court’s granting Bell’s summary
judgment motion; and 2) the circuit court erred in granting summary judgment
as there were genuine issues of material fact.

I.                 
Procedural Irregularities

Hall asserts there were procedural irregularities
with regard to the circuit court’s granting of summary judgment.  We will
address each issue individually.

Hall first argues error because
the judge failed to read the case file before conducting the hearing.  The
record reveals the circuit court was familiar with the case and was able to
conduct a hearing on the matter.  It is further apparent that any deficiency
in knowledge of the facts of the case Hall may have observed at the hearing
was cured by the circuit court’s well-reasoned order granting summary judgment.

Second, Hall argues the circuit
court erred in granting Bell’s motion for summary judgment, although Bell
had not yet filed her answer to the supplemental complaint.  Hall filed a
supplemental complaint alleging two additional causes of action on May 23,
2001.  Bell received the complaint on May 25, 2001.  The summary judgment
motion was heard on May 30, 2001.  The circuit court granted summary judgment
on the following day.  Although nothing in the record reflects Hall had permission
to amend her complaint, it is apparent from the order granting summary judgment
the circuit court considered the supplemental complaint and viewed it as alleging
two additional causes of action arising out of the same set of facts as the
previous complaint.

Third, Hall again argues the
circuit court judge failed to read the filings before reaching its decision. 
The circuit court’s order states it reviewed the initial complaint, the supplemental
complaint, and Bell’s answer.  Hall does not specify what matters are present
in those filings that would warrant reversal of the circuit court.  Furthermore,
Hall may not rest on the allegations in her pleadings to create a cause of
action where those allegations are controverted by affidavits submitted by
Bell.  Yarborough v. Rogers, 306 S.C. 260, 261, 411 S.E.2d 424 (1991).

Hall’s fourth argument rests
upon the theory that the circuit court should not have viewed the supplemental
complaint as amendments to the complaint.  The circuit court’s order states: 
“Although the newly filed Complaint does not purport to amend the original
complaint, the Court will liberally view the pleading as an amendment that
adds two causes of action to the original complaint.”  By considering the
causes of actions from the original and supplemental complaints the circuit
court benefited Hall by searching the complaints to find a basis on which
to support her suit.  The circuit court did not err in considering both the
original and supplemental complaint.

Hall’s fifth argument is that
Bell made numerous false and ambiguous statements in her submissions to the
court.  Hall further alleges that Bell concealed evidence.  Even if we accept
Hall’s interpretations of Bell’s submissions, it does not undermine the basis
of the circuit court’s order on two essential facts: 1) that Bell did not
agree to sue Commander on Hall’s behalf; and 2) Hall retained other counsel
prior to the running of any statute of limitations on any viable claim. 

Absent Hall’s ability to show
that Bell agreed to sue Commander but failed to do so before the statute of
limitations expired she cannot maintain her action against Bell.  We find
no procedural irregularity on the circuit court’s behalf.

II.              
Genuine Issues of Material Fact

Hall first alleges there were
material issues of fact whether Bell’s scope of representation was limited
to representation before the Board.  We disagree.

It is clear from the record the
circuit court was correct in concluding no issue of material fact existed
over whether the scope of representation included Hall’s suit against Commander. 
First, at the outset of Bell’s representation she had Hall prepare a summary
of facts of her case.  Although the summary does contain a reference to [j1]  Hall’s desire to sue Commander, there is nothing
in the record to deduce that Bell agreed to represent Hall in the matter. 

Second, the record demonstrates
that Bell only agreed to represent Hall during the Board’s investigation. 
Bell asserts, and is uncontradicted by the record, she informed Hall that
suing Commander before obtaining a favorable ruling before the Board was not
effective, as a negative ruling by the Board would render any subsequent suit
moot.  Such statements make clear that Bell’s representation extended only
to the Board investigation, at least until the conclusion of the case before
the Board.

Third, Hall’s own affidavit fails
to reveal testimony that Bell’s scope of representation extended beyond the
Board.  Additionally, Hall’s own letter to Bell terminating her services states
as one reason for her action Bell’s “lack of encouragement/support [for her]
desire to file suit against Commander.”

Next, Hall asserts the Board’s
dismissal of Hall’s case is clear evidence that Bell’s “‘Board of Nursing
case’ was fictitious, misleading, unfounded, and meritless ... [such that]
Hall’s time and money were spent in Bell’s pursuit of a case not in existence,
while Hall’s lawsuit did not receive its proper attention.”  It is clear from
the record that the case before the Board regarding the misappropriation of
the Phenergan existed.  Finally, the Board’s investigation against Hall ended
favorably for Hall.

Fourth, Hall asserts Bell was incompetent because
she allowed the statute of limitations to expire before filing a suit against
Commander.  Hall retained counsel to represent her before the statute of limitations
expired with the only possible exception being applicable to a claim of racial
discrimination.  Hall had 300 days to file a claim with the EEOC to allege
racial discrimination in employment.  See Tinsley v. First Union
Nat’l Bank, 155 F.3d 435, 440 (4th Cir. 1998).  Accepting Hall’s
version of events, the statute of limitations began on July 30, 1997.  Bell
was terminated by Hall and replaced by new counsel on March 12, 1998.  Therefore
225 days elapsed; the statute of limitations had not expired by the time Hall
retained new counsel.  Although South Carolina courts have not addressed this
issue, other jurisdictions have held an “attorney cannot be held liable for
failing to file an action prior to the expiration of the statute of limitations
if he ceased to represent the client and was replaced by other counsel before
the statute ran of the client’s action.”  Knight v. Myers, 748 P.2d
896, 902 (Kan. 1998); see also Steketee v. Lintz, 694
P.2d 1153, 1159 (Cal. 1985); Harvey v. MacKay, 440 N.E.2d 1022, 1026
(Ill. 1982).  Accordingly, Bell is not liable for failing to file an action
where she was replaced by another attorney before the statute of limitations
expired. 

Finally, Hall asserts the court
erred in granting summary judgment, as there were material issues of fact
whether Bell violated the statute of fraud provisions.  As this issue was
neither raised to nor ruled upon by the trial court it is not preserved for
our review.  See South Carolina Dep’t of Social Servs. v. Father
and Mother, 294 S.C. 518, 524, 366 S.E.2d 40, 43 fn. 22 (Ct.App. 1988)
(issue which was not raised below cannot be considered on appeal). 

Even if this issue was preserved,
Hall’s argument is meritless.  The failure to follow the statute of frauds
does not create a cause of action in tort.  Instead, it provides that for
certain types of agreements to be enforceable under contract law they must
be in writing.  See, e.g., Young v. Indep. Pub. Co.,
273 S.C. 107, 110, 254 S.E.2d 681, 682 (1979).

CONCLUSION

The scope of Bell’s legal representation was limited to the Board’s
investigation.  Although Hall expressed interest in suing Commander, no evidence
was presented proving Bell agreed to bring said suit.  Additionally, Bell
did not suffer legal harm as she retained alternate counsel within the statute
of limitations. Therefore the trial court did not err in granting summary
judgment. 

AFFIRMED.

GOOLSBY, HUFF and BEATTY, JJ., concur.

[1] Because oral argument would not aid the Court
in resolving any issue on appeal, we decide this case without oral argument
pursuant to Rule 215 SCACR.

[2] Hall is also suing two lawyers in Sumter County because they
would not file a civil suit on her behalf.