Deese v. Schmutz

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 Edward Deese, Jr., Appellant,

v.

Stephen Schmutz, Respondent.

Appeal From Charleston County

 R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No.  2011-UP-439

Submitted October 1, 2011 – Filed October
11, 2011

AFFIRMED

Charles E. Deese, Jr., pro se, for
Appellant.

Davis W. Overstreet and Michael B. McCall,
both of Charleston, for Respondent.

PER CURIAM: Charles
Edward Deese, Jr., appeals the circuit court's order dismissing his legal
malpractice action against Stephen Schmutz.  On appeal, Deese argues the
circuit court erred in: (1) dismissing Deese's legal malpractice action against
Schmutz and (2) failing to grant Deese recovery on the theory of quantum meruit
for his excessive fee complaint.  We affirm.[1]

We
find the circuit court properly dismissed Deese's legal malpractice action against
Schmutz because Deese failed to submit an expert affidavit identifying Schmutz's
alleged negligent acts.  See  S.C. Code Ann. § 15-36-100(B)[2] (Supp. 2010) (requiring a plaintiff alleging professional negligence against an
attorney-at-law to submit an affidavit from an expert witness which must
specify at least one negligent act or omission claimed to exist and the factual
basis for each claim based on the available evidence at the time of the filing
of the affidavit).  Deese never submitted an expert witness's affidavit
identifying Schmutz's alleged negligent act or omission.  In fact, Deese had over
four months from the time he received notice of the motion to dismiss based on
these grounds to correct his error by submitting an affidavit from an expert
witness.  Deese also acknowledged that he did not have an affidavit during the
hearing. Because Deese failed to submit an expert witness's affidavit
identifying Schmutz's alleged negligent act or omission, the circuit court did
not err in dismissing the legal malpractice action for failure to comply with
section 15-36-100(B). 

We decline to address whether the circuit court erred
in failing to grant Deese relief on the theory of quantum meruit for his
excessive fee claim because this issue was not preserved for our review. See Walterboro Cmty. Hosp. v. Meacher,  392 S.C. 479, 493, 709 S.E.2d 71, 78
(Ct. App. 2011) (finding an issue must be raised to and ruled upon by the circuit
court in order to be preserved for appellate review). 

AFFIRMED.

HUFF,
PIEPER, and LOCKEMY, JJ., concur. 

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

[2] Deese argues this statute is inapplicable because his
cause of action arose prior to the statute's effective date of July 1, 2005. 
This issue is not preserved for our review because Deese's question regarding
the effective date of the statute was not raised until Deese's second
memorandum in support of his motion to alter or amend, which was filed after
the circuit court had denied Deese's Rule 59(e), SCRCP motion.  See MailSource,
LLC v. M.A. Bailey & Assocs., Inc.,  356 S.C. 370, 374, 588 S.E.2d
639, 641 (Ct. App. 2003) ("A party cannot raise an issue for the
first time in a Rule 59(e), SCRCP motion which could have been raised at trial.").