Dunbar v. Johnson

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Sylvia Dunbar, as Guardian ad Litem for Akeya Johnson, a minor under
the age of eighteen (18) years,       
Respondents,

v.

Willette L. Johnson,       
Appellant.

Appeal From Allendale County

Perry M. Buckner, Circuit Court Judge

Unpublished Opinion No. 2004-UP-500

Submitted September 14, 2004 – Filed
October 5, 2004

AFFIRMED

Lewis C. Lanier, of Orangeburg, for Appellant.

Mark B. Tinsley, of Allendale and Robert N. Hill, of Newberry,
for Respondent.

PER CURIAM:  Sylvia Dunbar brought this
action as Guardian ad Litem for Akeya Johnson, a minor under the age of eighteen,
to recover damages as a result of an automobile accident in which Akeya Johnson
was a passenger in a vehicle driven by Willette L. Johnson.  The jury returned
a verdict in favor of Akeya in the amount of $62,000 and a judgment was entered
in this amount.  Willette Johnson appeals, claiming the trial court erred in
denying her motion for a new trial because the verdict was excessive and the
trial court failed to issue a jury charge on sudden emergency.  She also argues
a new trial should have been granted because the circuit court improperly admitted
some testimony from the investigating officer while improperly excluding other
testimony. We affirm.

ANALYSIS

Because Appellant failed to address
the trial court’s initial ground for denying her post-trial motion, we need
not address the issues raised on appeal.  We affirm the circuit court’s denial
based solely on the fact that Appellant’s motion for a new trial was untimely
filed.

Rule 59(b), SCRCP, states “[t]he motion
for a new trial shall be made promptly after the jury is discharged, or in the
discretion of the court not later than 10 days thereafter.”  Following discharge
of the jury, the trial court granted Appellant the maximum ten days to file
her post-trial motions.  Documents received by this court from the Allendale
County courthouse reveal that Appellant’s motion was filed beyond the ten-day
period.

Initially, the trial court found Appellant
improperly made her motion pursuant to a repealed statute.  The court expanded
on this ground for denial as follows:

This fact alone provides a sufficient basis for the denial
of Defendant’s motion.  Nonetheless, the motion also would be denied if it had
been made pursuant to Rule 59(a), SCRCP. [the current rule for post-trial motions]

In a footnote to the above quotation, the court
continued:

The Court notes that the time limit for filing a Rule 59(a)
motion has expired, but because its ruling would be the same if the proper motion
had been timely filed, it discusses the validity of the request for a new trial.

The trial court went on to discuss the merits of
Appellant’s motion for a new trial based on the issues now raised on appeal. 
The motion was ultimately denied.

Appellant
argues several errors in the trial court’s order, but does not raise an exception
to the trial court’s denial of the motion on the basis of timeliness.  Accordingly,
we affirm the trial court’s decision based solely on the untimeliness of Appellant’s
motion for a new trial.    See Dwyer v. Jenkins, 289 S.C. 118,
120-121, 344 S.E.2d 886, 888 (Ct. App. 1986) (affirming the circuit court when
unchallenged alternative findings support the judgment); 5 Am. Jur. 2d Appellate
Review § 829 at 489 (1995) (“where a separate and independent ground from
the one appealed supports the judgment made below, and is not challenged on
appeal, the appellate court must affirm.”).  We need not address the merits
of the other issues raised on appeal.  See Rule 220 (c), SCACR; Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (holding appellate courts need not address remaining issues
when the disposition of a prior issue is dispositive). 

The circuit court’s decision to deny Appellant’s
motion for a new trial is

AFFIRMED.

GOOLSBY, ANDERSON, and WILLIAMS,
JJ.,
concur.