Thomas v. Bolus & Bolus

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

Clark D. Thomas, Appellant,

v.

Bolus & Bolus and Attorneys Keith Bolus, Officially,
and Michael T. Bolus, Officially and Individually,
Respondents.

Appellate Case No. 2011-194846

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2013-UP-034
Submitted November 1, 2012 – Filed January 16, 2013

AFFIRMED

Clark D. Thomas, pro se.

Michael Baxter McCall and David W. Overstreet, both of
Carlock Copeland & Stair, LLP, of Charleston, for
Respondent Keith Bolus; and Michael T. Bolus, of North
Charleston, pro se.
PER CURIAM: Clark Thomas appeals the trial court's order granting Bolus's
motion to dismiss and declining to address Thomas's motion to amend. We affirm
pursuant to Rule 220(b), SCACR.

1. We find the trial court did not err in granting Bolus's motion to dismiss. Thomas
failed to state a claim upon which relief may be granted because he did not plead
he was innocent of the underlying criminal charges. See Brown v. Theos, 345 S.C.
626, 629-30, 550 S.E.2d 304, 306 (2001) (holding the trial court did not err in
granting attorneys' motion to dismiss pursuant to Rule 12(b)(6), SCRCP, because
the client's complaint did not allege he was innocent of the criminal charges filed
against him). Thomas also argues he was not required to submit an expert affidavit
pursuant to section 15-36-100 of the South Carolina Code (Supp. 2011) because
the legal malpractice claim fell within the ambit of common knowledge.
Alternatively, Thomas argues the trial court erred in striking the expert affidavit of
William White. It is not necessary to address these issues because the trial court
properly dismissed Thomas's complaint for failure to state a cause of action. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (recognizing an appellate court need not address remaining issues
when resolution of one issue is dispositive).

2. We find the trial court did not err in declining to consider Thomas's motion to
amend his complaint because he did not file the motion ten days prior to the
hearing. See Rule 6(d), SCRCP ("A written motion other than one which may be
heard ex parte, and notice of the hearing thereof, shall be served not later than ten
days before the time specified for the hearing, unless a different period is fixed by
these rules or by an order of the court."). Additionally, Thomas's proposed
amended complaint failed to state a cause of action because he did not allege facts
that show he is innocent of all criminal charges filed against him. See Brown, 345
S.C. at 630, 550 S.E.2d at 306 ("[The] complaints do not allege facts that purport
to show he is innocent of all the criminal charges filed against him. Therefore, [the
plaintiff's] failure to plead innocence is fatal to his cause of action."); Sullivan v.
Hawker Beechcraft Corp., 397 S.C. 143, 153-54, 723 S.E.2d 835, 841 (Ct. App.
2012) (holding the trial court properly denied the plaintiff's motion to amend his
complaint because the plaintiff failed to cite any new factual allegations that would
impact the issue).

3. We find Thomas failed to preserve his remaining arguments for review. 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 trial [court] to be preserved for appellate
review.").

AFFIRMED.1

FEW, C.J., and WILLIAMS and PIEPER, JJ., concur.

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