Mack v. Washington

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

April Grant Mack as Personal Representative of the
Estate of Barrett Demetric Jeremiah Mack, Respondent,

v.

Estate of Harry Washington, Defendant,

Of whom Necole Binyard, as Personal Representative of
the Estate of Harry Rufus Emanuel Washington, is the
Appellant.

Appellate Case No. 2017-001077

Appeal From Williamsburg County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2021-UP-037
Submitted January 1, 2021 – Filed February 10, 2021

AFFIRMED

William Joseph Barr, of Barr Law, of Kingstree, for
Appellant.

Kimberly Veronica Barr and Ronnie Alan Sabb, both of
Sabb Law Group, L.L.C., of Kingstree, for Respondent.
PER CURIAM: Necole Binyard, as personal representative of Harry
Washington's estate, appeals the circuit court's order approving settlement
agreements between April Mack, as personal representative of Barrett Mack's
estate; Washington's insurer, State Farm Automobile Insurance Company; and
Mack's insurer, Government Employees Insurance Company (GEICO). We affirm
pursuant to Rule 220(b), SCACR, and the following authorities:1

1. The issue of whether the circuit court erred in approving the settlement
agreements when April failed to give Binyard sufficient notice of the settlement
hearing is not preserved because the circuit court did not rule on this issue. See
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 [circuit court] to be preserved for appellate
review."); Doe v. Roe, 369 S.C. 351, 376, 631 S.E.2d 317, 330 (Ct. App. 2006)
("An issue is not preserved where the [circuit court] does not explicitly rule on an
argument and the appellant does not make a Rule 59(e)[, SCRCP,] motion to alter
or amend the judgment.").

2. The circuit court did not err in approving the settlement agreements when
Binyard's declaratory judgment action and creditor's claim were pending on the
day of the settlement hearing and there was a dispute as to who was driving at the
time of the accident. See S.C. Code Ann. § 15-51-42(B) (2005) (providing the
procedure to seek the court's approval of a settlement agreement "if no [wrongful
death or survival] action is pending" in state or federal court); Doe v. S.C. Med.
Malpractice Liab. Joint Underwriting Ass'n, 347 S.C. 642, 649, 557 S.E.2d 670,
674 (2001) ("[A] liability insurer owes its insured a duty to settle a [wrongful death
or survival] claim covered by the policy, if settlement is the reasonable thing to
do." (quoting Trotter v. State Farm Mut. Auto. Ins. Co., 297 S.C. 465, 475, 377
S.E.2d 343, 349 (Ct. App. 1988))); Trotter, 297 S.C. at 475, 377 S.E.2d at 349 ("If
an insurer undertaking the defense of a suit covered by the policy unreasonably
refuses or fails to settle within the policy limits, it is liable to the insured for the
amount of the judgment against him in excess of the policy limits.").

1
We address the issues on appeal as set forth in Binyard's initial brief because her
final brief differs substantially from her initial brief in violation of Rule 211(b),
SCACR. See Rule 211(b), SCACR ("The final brief(s) shall be identical to the
[initial] brief(s) . . . except for the following: (1) References to the Record . . . [and]
(2) Correction[s] of Typographical Errors and Misspellings . . . .").
3. The issue of whether the settlement agreements were eligible for court approval
under Wilson v. Dallas, 403 S.C. 411, 743 S.E.2d 746 (2013), is not preserved
because Binyard did not raise this issue to the circuit court. See 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 [circuit
court] to be preserved for appellate review.").

4. The issue of whether the circuit court erred in approving the settlement
agreements when Washington's estate was not fully represented at the settlement
hearing and Binyard's attorney did not consent to the settlements as required under
Rule 43(k), SCRCP, is not preserved because these arguments were not raised to or
ruled upon by the circuit court. See id. ("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 [circuit court] to be preserved for appellate review.").

5. The issue of whether Binyard is entitled to relief from the circuit court's order
under Rule 60(b)(1), SCRCP, or Rule 60(b)(5), SCRCP, is not preserved because
Binyard did not file a motion pursuant to Rule 60, SCRCP, or any other post-trial
motion. See Rule 60(b), SCRCP ("On motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment, order, or proceeding" for the
reasons provided in Rule 60(b)(1) & (5) (emphasis added)); First Union Nat. Bank
of S.C. v. Hitman, Inc., 306 S.C. 327, 329, 411 S.E.2d 681, 682 (Ct. App. 1991),
aff'd, 308 S.C. 421, 418 S.E.2d 545 (1992) ("[A]ny error by the [circuit court in
issuing a written order differing from the court's ruling from the bench] is not
preserved, because [the appellant] did not file a post-trial motion raising the
question to the [circuit court].").

6. The issue of whether the circuit court erred in declaring the statutory
beneficiaries of the settlement proceeds and ordering distribution of the proceeds is
not preserved because it was not raised to and ruled upon by the circuit court. See
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 [circuit court] to be preserved for appellate review.").

AFFIRMED.2

HUFF, WILLIAMS, and GEATHERS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.