Critcher v. Rhodes

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

Eileen Critcher, Appellant,

v.

Susan Critcher Rhodes, individually and as Personal
Representative of the Estate of Roy G. Critcher; Wanda
C. Akers; and Belinda Critcher Thomas,
Respondents.

Appellate Case No. 2013-002032

Appeal From York County
S. Jackson Kimball, III, Special Circuit Court Judge

Unpublished Opinion No. 2015-UP-406
Submitted June 1, 2015 – Filed August 12, 2015

AFFIRMED

Sean Francis Cronin, of the Law Offices of Michael L.
Brown, Jr., and John Martin Foster, both of Rock Hill,
for Appellant.

B. Michael Brackett, of Moses & Brackett, PC, of
Columbia, for Respondents.
PER CURIAM: Eileen Critcher (Wife) appeals the trial court's decision to grant
summary judgment in favor of Susan Rhodes, Wanda C. Akers, and Belinda
Thomas (collectively, Respondents). On appeal, Wife contends (1) summary
judgment was not warranted in light of incomplete discovery, (2) the trial court
erred in not admitting her affidavit, (3) summary judgment was improper based on
the doctrine of equitable estoppel, and (4) summary judgment was improper based
on the doctrine of equitable tolling. We affirm pursuant to Rule 220(b), SCACR,
and the following authorities:

1. As to incomplete discovery: Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d
433, 439 (2003) ("Summary judgment is a drastic remedy and must not be granted
until the opposing party has had a full and fair opportunity to complete
discovery."); id. ("Nonetheless, the nonmoving party must demonstrate the
likelihood that further discovery will uncover additional relevant evidence and that
the party is not merely engaged in a fishing expedition." (internal quotation marks
omitted)); Guinan v. Tenet Healthsystems of Hilton Head, Inc., 383 S.C. 48, 54-55,
677 S.E.2d 32, 36 (Ct. App. 2009) ("A party claiming summary judgment is
premature because they have not been provided a full and fair opportunity to
conduct discovery must advance a good reason why the time was insufficient
under the facts of the case, and why further discovery would uncover additional
relevant evidence and create a genuine issue of material fact.").

2. As to Wife's affidavit: Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury
Fund, 389 S.C. 422, 431, 699 S.E.2d 687, 691 (2010) ("An unappealed ruling is
the law of the case and requires affirmance.").

3. As to equitable estoppel: Blue Ridge Realty Co. v. Williamson, 247 S.C. 112,
122, 145 S.E.2d 922, 927 (1965) ("The essential elements of an equitable estoppel
as related to the party estopped are: (1) Conduct which amounts to a false
representation or concealment of material facts, or, at least, which is calculated to
convey the impression that the facts are otherwise than, and inconsistent with,
those which the party subsequently attempts to assert; (2) intention, or at least
expectation, that such conduct shall be acted upon by the other party; (3)
knowledge, actual or constructive, of the real facts. As related to the party
claiming the estoppel, they are: (1) Lack of knowledge and of the means of
knowledge of the truth as to the facts in question; (2) reliance upon the conduct of
the party estopped; and (3) action based thereon of such a character as to change
his position prejudicially."); Kelly v. Logan, Jolley, & Smith, L.L.P., 383 S.C. 626,
638, 682 S.E.2d 1, 7 (Ct. App. 2009) ("The party asserting equitable estoppel bears
the burden of establishing all the elements.").
4. As to equitable tolling: 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 judge to be
preserved for appellate review.").

AFFIRMED.1

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

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