Sun v. Matyushevsky

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

Joseph C. Sun, Appellant,

v.

Olesya Matyushevsky, Citizens Opposed to Domestic
Abuse, Christine Varg, and Liling Sun, Respondents.

AND

Joseph C. Sun, Appellant,

v.

Olesya Matyushevsky, Citizens Opposed to Domestic
Abuse, and Christine Varg, Respondents.

AND

Joseph C. Sun, Appellant,

v.

Olesya Matyushevsky, Citizens Opposed to Domestic
Abuse, and Christine Varg, Respondents.

Appellate Case No. 2011-204367

Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge
Marvin H. Dukes, III, Special Circuit Court Judge
Unpublished Opinion No. 2015-UP-146
Submitted February 1, 2015 – Filed March 18, 2015

AFFIRMED

Joseph C. Sun, of Bluffton, pro se.

John Samuel Verner Scoville, of Harvey & Battey, P.A.,
of Beaufort, for Respondent Liling Sun.

Charles J. Baker, III, of Womble Carlyle Sandridge &
Rice, LLP, of Charleston; and Sarah E. Wetmore and
Jackson H. Daniel, III, of Carlock Copeland & Stair,
LLP, of Charleston, for Respondents Olesya
Matyushevsky, Christine Varg, and Citizens Opposed to
Domestic Abuse.

PER CURIAM: In this consolidated appeal, Joseph Sun appeals three orders of
the circuit court. He argues the circuit court erred by (1) dismissing his claims
against Liling Sun; (2) dismissing his claims against Olesya Matyushevsky and
Citizens Opposed to Domestic Abuse (CODA), dismissing all but one of his claims
against Christine Varg, and denying his motion for leave to amend his complaint;
and (3) denying his continuance motion and granting Varg's motion for summary
judgment. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to whether the circuit court erred by dismissing Joseph's claims against
Liling: Rule 220(c), SCACR ("The appellate court may affirm any ruling, order,
decision or judgment upon any ground(s) appearing in the Record on Appeal.");
Rule 12(b)(1), SCRCP (providing a circuit court may dismiss an action over which
it lacks subject matter jurisdiction); S.C. Code Ann. § 63-3-530(A) (2010 & Supp.
2014) (defining the subject matter over which the family court has exclusive
jurisdiction); Appeal of Sexton, 298 S.C. 359, 360, 380 S.E.2d 832, 833 (1989)
("The [f]amily [c]ourt has exclusive jurisdiction to hear and determine actions for
settlement of all legal and equitable rights of the parties in the actions in and to the
real and personal property of the marriage . . . ." (alteration by court) (internal
quotation marks omitted)); Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99,
674 S.E.2d 524, 528 (Ct. App. 2009) (stating subject matter jurisdiction is a
question of law, and this court may decide it without deference to the circuit court);
Baird v. Charleston Cnty., 333 S.C. 519, 529, 511 S.E.2d 69, 74 (1999) (stating
"evidence outside the pleadings may, in certain circumstances, be considered in
support of a motion to dismiss based on lack of jurisdiction," such as "when the
allegations of the complaint are factually sufficient under Rule 8(a)(1), SCRCP,
but do not affirmatively show subject matter jurisdiction"); Rule 201(b), SCRE ("A
judicially noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the [circuit] court or
(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned."); Rule 201(d), SCRE ("(d) When
Mandatory. A court shall take judicial notice if requested by a party and supplied
with the necessary information."); Rule 201(f), SCRE ("Judicial notice may be
taken at any stage of the proceeding.").

2. As to whether the circuit court erred by dismissing Joseph's claims against
Matyushevsky and CODA, dismissing all but one of his claims against Varg, and
denying his motion for leave to amend his complaint: Rule 12(b)(6), SCRCP
(providing a circuit court may dismiss a complaint when the defendant
demonstrates the plaintiff's complaint fails to allege facts sufficient to constitute a
cause of action); Dawkins v. Union Hosp. Dist., 408 S.C. 171, 176, 758 S.E.2d
501, 503 (2014) (stating that when reviewing a dismissal pursuant to Rule
12(b)(6), SCRCP, "the appellate court applies the same standard of review as the
[circuit] court—whether the defendant demonstrates the plaintiff has failed to state
facts sufficient to constitute a cause of action in the pleadings filed with the
court"); Doe v. Bishop of Charleston, 407 S.C. 128, 134 n.2, 754 S.E.2d 494, 497
n.2 (2014) (recognizing a circuit court may take judicial notice of previously
entered, related court orders and consider them when ruling on a Rule 12(b)(6),
SCRCP, motion to dismiss); Rule 201(f), SCRE ("Judicial notice may be taken at
any stage of the proceeding."); Gaar v. N. Myrtle Beach Realty Co., 287 S.C. 525,
528-29, 339 S.E.2d 887, 889 (Ct. App. 1986) ("[A]n attorney is immune from
liability to third persons arising from the performance of his professional activities
as an attorney on behalf of and with the knowledge of his client. Accordingly, an
attorney who acts in good faith with the authority of his client is not liable to a
third party in an action for malicious prosecution."); Stiles v. Onorato, 318 S.C.
297, 298-300, 457 S.E.2d 601, 602-03 (1995) (finding the plaintiff's complaint
"was fatally deficient" because "the only reasonable inference is that [the attorney
who had been sued] was acting at all times in his capacity as [an] attorney"); Lee v.
Bunch, 373 S.C. 654, 660, 647 S.E.2d 197, 200 (2007) (stating the decision to
grant leave to amend pleadings lies within the sound discretion of the circuit
court).

3. As to whether the circuit court erred in granting Varg summary judgment and
denying Joseph's continuance motion: Stevens & Wilkinson of S.C., Inc. v. City of
Columbia, 409 S.C. 568, 576, 762 S.E.2d 696, 700 (2014) (stating that when
reviewing a grant of summary judgment, this court applies the same standard
applied by the circuit court pursuant to Rule 56(c), SCRCP); Town of Hollywood v.
Floyd, 403 S.C. 466, 477, 744 S.E.2d 161, 166 (2013) ("Summary judgment is
proper if, viewing the evidence in a light most favorable to the nonmoving party,
there is no genuine issue of material fact and the moving party is entitled to a
judgment as a matter of law."); Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 17,
677 S.E.2d 612, 616 (Ct. App. 2009) ("A jury issue is created when there is
material evidence tending to establish the issue in the mind of a reasonable
juror. . . . [A]ssertions as to liability must be more than mere bald allegations
made by the non-moving party in order to create a genuine issue of material fact.");
Plyler v. Burns, 373 S.C. 637, 650, 647 S.E.2d 188, 195 (2007) ("The grant or
denial of a continuance is within the sound discretion of the [circuit court] and is
reviewable on appeal only when an abuse of discretion appears from the record.
Moreover, the denial of a motion for a continuance on the ground that [a party
seeking a continuance] has not had time to prepare is rarely disturbed on appeal."
(citation omitted)).

AFFIRMED.1

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

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