Ervin v. Colleton County

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

Charles Ervin, Sr., Appellant,

v.

Colleton County, Respondent.

Appeal From Colleton County

 Perry M. Buckner, Circuit Court Judge

 Roger M. Young, Circuit Court Judge

Unpublished Opinion No. 2010-UP-231

Submitted March 1, 2010 – Filed April 5,
2010

Withdrawn, Substituted and Refiled April
13, 2010

AFFIRMED

James H. Moss, of Beaufort, for Appellant.

Marshall H. Waldron, Jr., of Beaufort, for Respondent.

PER CURIAM: 
Charles Ervin appeals from Judge Buckner's order granting a directed verdict to
Colleton County.  Judge Buckner based his ruling on Judge Young's previous
order granting summary judgment to Colleton County as to its liability for any
wrongful actions taken against Ervin by the Colleton County Sheriff and his
deputies.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to whether Judge
Young erred in granting partial summary judgment to Colleton County:  Law v.
South Carolina Dept. of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648
(2006) ("In ruling on motions for directed verdict and JNOV, the trial
court is required to view the evidence and the inferences that reasonably can
be drawn therefrom in the light most favorable to the party opposing the
motions and to deny the motions where either the evidence yields more than one
inference or its inference is in doubt."); Rule 56(c), SCRCP (providing a
trial court may grant a motion for summary judgment only "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law"); Brockbank v. Best Capital Corp., 341 S.C. 372,
378-79, 534 S.E.2d 688, 692 (2000) ("In determining whether any triable
issues of fact exist, the court must view the evidence and all reasonable
inferences that may be drawn from the evidence in the light most favorable to
the non-moving party."); Cone v. Nettles, 308 S.C. 109, 112, 417
S.E.2d 523, 525 (1992) (determining that in South Carolina, sheriffs and
deputies are state, not county, officials because (1) the South Carolina
constitution establishes the office of sheriff and the term of office; (2) the
duties and compensation of sheriffs and deputies are set forth by the General
Assembly; (3) their arrest powers are related to state offenses; and (4) the
Governor of South Carolina has the authority to remove a sheriff for misconduct
and fill the vacancy); S.C. Code Ann. §§ 23-11-10 and 23-13-10
(2007) (providing that the citizens elect the Sheriff, and the Sheriff is
answerable for the neglect or misconduct in the office of any deputy).

2. As to whether Judge
Young erred in granting summary judgment while Ervin's motion for leave to
amend his complaint was still pending: Scott v. McCain, 272 S.C. 198,
202, 250 S.E.2d 118, 121 (1978) ("[A] defective complaint cannot be
amended to state a new or different cause of action after the statute of
limitations has run."); S.C. Code Ann. § 15-78-110 (2005) (providing "any
action brought pursuant to [the South Carolina Tort Claims Act] is forever
barred unless an action is commenced within two years after the date the loss
was or should have been discovered").

AFFIRMED.      

SHORT,
WILLIAMS, and LOCKEMY, JJ., concur.

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