Gabriel Barnhill and GSB Enterprises, LLC v. Swilley

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

Gabriel Barnhill and GSB Enterprises, LLC,
Respondents,

v.

J. Floyd Swilley, J. Floyd Swilley Investment Advisors,
Laurel K. Swilley, SMG Partners, LLC, SMS Services,
LP, William C. Piner, WCP Limited, LLC, 809 Holdings,
LP, QC Financing, LLC, Heath Causey, and Sage
Financial Group, LLC, J. Floyd Swilley SMG Partners,
LLC, Alicia A. Piner, Heath Causey, Sage Advisory
Group, L.P., Sage Private Equity Group, Secured Asset
Factoring Exchange, Inc., SAFE, Inc., Digics, LLC, 9-1-
1, Plumbing, LLC, and Sage Funding, L.P., Christopher
Pitcock, Defendants,

Of Whom J. Floyd Swilley, Laurel K. Swilley, and Heath
Wendell Causey are the Appellants.

Appellate Case No. 2016-001328

Appeal From Horry County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2021-UP-288
Submitted October 1, 2019 – Filed August 4, 2021

AFFIRMED
Frederick Miles Adler, of Pawleys Island, for Appellants
J. Floyd Swilley and Laurel K. Swilley.

Heath Wendell Causey, of Myrtle Beach, pro se.

Natale Fata, of Nate Fata, PA, of Surfside Beach, for
Respondents.

PER CURIAM: J. Floyd Swilley and Laurel K. Swilley (Swilleys) and Heath
Wendell Causey (Causey) (collectively, Appellants) appeal the trial court's order
striking their answer, counterclaims, and pleadings as a sanction for discovery
violations and granting summary judgment to Gabriel Barnhill and GSB
Enterprises (collectively, Respondents) on Appellants' counterclaims. They also
appeal the trial court's denial of their motion to set aside the sanction/summary
judgment order. We affirm.

1. We disagree with Appellants' assertion the trial court erred in ruling on
Respondents' motion to compel discovery and/or for sanctions and their motion for
summary judgment/judgment on the pleadings on the counterclaims when adequate
service had not been made on them. See Rule 5(b)(1), SCRCP ("Service by mail is
complete upon mailing of all pleadings and papers subsequent to service of the
original summons and complaint."); Green v. Green, 320 S.C. 347, 350, 465
S.E.2d 130, 132 (Ct. App. 1995) ("Mailing ordinarily occurs when a document is
deposited with the U.S. Postal Service properly addressed with sufficient postage
affixed."); Schleicher v. Schleicher, 310 S.C. 275, 277, 423 S.E.2d 147, 148 (Ct.
App. 1992) (holding "service of the notice of the time and date of the merits
hearing became effective when [the respondent's] attorney mailed the notice to [the
appellant] 'at his last known address, by certified mail, return receipt requested' and
not at the time [the appellant] actually received the notice"). Respondents served
all defendants with notice of the hearing on February 3, 2016. Therefore, service
of the notice of the hearing was complete upon the mailing on February 3. We find
the Swilleys' assertions regarding the validity of the affidavit executed by
Respondents' counsel's legal assistant are not properly before this court because
they were never raised to or ruled on by the trial court. 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."). We also find no merit to
the Swilleys' claim the clerk of court never provided them with notice of
Respondents' motions or the February hearing. See Rule 5(b)(1), SCRCP
("Whenever under these rules service is required or permitted to be made upon a
party represented by an attorney the service shall be made upon the attorney unless
service upon the party himself is ordered by the court."); Ex parte Strom, 343 S.C.
257, 262, 539 S.E.2d 699, 701 (2000) ("[A]fter entering an appearance with the
court, an attorney must receive a court order pursuant to Rule 11(b) [of the South
Carolina Rules of Civil Procedure (SCRCP)] in order to be relieved as counsel.").
Until their former counsel was relieved, service was proper on him for his clients.

2. We disagree with Appellants' argument that the trial court erred in holding a
hearing during the time in which they contend the case was held in abeyance by
Judge Seals's January Order. First, the Swilleys and Causey did not appear at the
February hearing and make this argument. While the Swilleys raised this argument
in their motion to alter or amend, Causey did not raise this issue in his motion to
set aside. As this issue does not involve the court's subject matter jurisdiction, it
must have been raised to the trial court in a timely manner and ruled on to be
preserved for review. See Watson v. Watson, 319 S.C. 92, 93, 460 S.E.2d 394, 395
(1995) ("Subject matter jurisdiction refers to the court's 'power to hear and
determine cases of the general class to which the proceedings in question belong.'"
(quoting Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600
(1994))); Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011)
("Issue preservation rules are designed to give the trial court a fair opportunity to
rule on the issues, and thus provide us with a platform for meaningful appellate
review." (quoting Queen's Grant II Horizontal Prop. Regime v. Greenwood Dev.
Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006))); S.C. Dep't of
Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907
(2007) ("There are four basic requirements to preserving issues at trial for appellate
review. The issue must have been (1) raised to and ruled upon by the trial court,
(2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial
court with sufficient specificity." (quoting Jean Hoefer Toal et al., Appellate
Practice in South Carolina 57 (2d ed. 2002))); Stevens & Wilkinson of S.C., Inc. v.
City of Columbia, 409 S.C. 563, 567, 762 S.E.2d 693, 695 (2014) ("[A] party
cannot use a Rule 59(e)[, SCRCP,] motion to advance an issue the party could
have raised to the [trial] court prior to judgment, but did not."). Thus, this issue is
not preserved.

3. We disagree with Appellants' argument the trial court erred in granting
summary judgment because genuine issues of material fact remained. See David v.
McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006) ("[S]ummary
judgment is completely appropriate when a properly supported motion sets forth
facts that remain undisputed or are contested in a deficient manner."); Sims v.
Amisub of S.C., Inc., 408 S.C. 202, 208, 758 S.E.2d 187, 190-91 (Ct. App. 2014)
("Once the moving party carries its initial burden, the opposing party must come
forward with specific facts that show there is a genuine issue of fact remaining for
trial." (quoting Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607 S.E.2d 362,
364 (Ct. App. 2004))); Eadie v. Krause, 381 S.C. 55, 64 n.5, 671 S.E.2d 389, 393
n.5 (Ct. App. 2008) ("[T]o survive a motion for summary judgment, the plaintiff
must offer some evidence that a genuine issue of material fact exists as to each
element of the claim unless that element is either uncontested or agreed to by
stipulation; otherwise, the plaintiff cannot meet his burden of proof and the claim
may be determined as a matter of law by the trial [court]."). As the Swilleys and
Causey failed to come forward with specific facts that show there is a genuine
issue of fact remaining for trial, we find summary judgment was appropriate.

4. We disagree with Appellants' argument they did not have a full and fair
opportunity to complete discovery. Appellants do not explain why the time was
insufficient and what they expected to discover. See 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."). Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439
(2003) ("[T]he 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.'" (quoting Baughman v. Am. Tel. and Tel.
Co., 306 S.C. 101, 112, 410 S.E.2d 537, 544 (1991))). Furthermore, this argument
was never raised to the trial court. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at
733 ("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.")

5. We find Appellants' argument that the trial court committed reversible error by
granting summary judgment as a sanction is not properly before the court. See S.C.
Dep't of Transp., 372 S.C. at 301-02, 641 S.E.2d at 907 ("There are four basic
requirements to preserving issues at trial for appellate review. The issue must have
been (1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3)
raised in a timely manner, and (4) raised to the trial court with sufficient
specificity." (quoting Jean Hoefer Toal et al., supra, at 57)). Causey never raised
this issue below and the Swilleys only raised it through a letter from their current
counsel to the court dated May 3, 2016. Furthermore, the trial court held, "Swilley
never objected in writing to the Motion to Compel in the sixty days after the
Motion was filed. Additionally Swilley did not raise any such argument at the
hearing." Because we find the Swilleys received notice of the February hearing,
we agree with the trial court they should have appeared at the hearing to make this
argument in a timely manner.

6. We find Appellants' argument the trial court erred by relying on false statements
and misrepresentations by legal counsel is not preserved for our review as it was
never raised to or ruled on by the trial court. See Wilder Corp., 330 S.C. at 76, 497
S.E.2d at 733 ("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

HUFF, WILLIAMS, and MCDONALD, JJ., concur.

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