James Kincannon v. Ashley Griffith

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

James John Todd Kincannon, Appellant,

v.

Ashely Suzanne Griffith, Moore Taylor Law Firm, P.A.,
Vance Stricklin, and Amber Fulmer, Respondents.

Appellate Case No. 2019-001501

Appeal From Lexington County
Robin B. Stilwell, Circuit Court Judge

Unpublished Opinion No. 2023-UP-070
Submitted May 6, 2022 – Filed February 22, 2023

AFFIRMED

James John Todd Kincannon, of Simpsonville, pro se.

James Edward Bradley, of Moore Bradley Myers, PA of
West Columbia for Respondents.

PER CURIAM: James John Todd Kincannon appeals the circuit court's dismissal
of his complaint against Ashley Griffith, Moore Taylor Law Firm, P.A. (Moore
Taylor), Vance Stricklin, and Amber Fulmer (collectively, Respondents) for failure
to state a claim. On appeal, Kincannon argues the circuit court erred by (1)
considering Respondents' untimely and improper memorandum and affidavit in
support of the motion to dismiss; (2) relying on materials outside the record and
denying Kincannon the opportunity to respond to judicially noticed materials; (3)
dismissing the complaint with prejudice and denying Kincannon the opportunity to
amend his complaint; (4) failing to rule on his motion for recusal; and (5)
committing additional errors of varying severity. We affirm pursuant to Rule
220(b), SCACR.

1. We hold Kincannon's argument regarding Respondents' untimeliness in filing
their memorandum of law is abandoned. See Bennett v. Investors Title Ins. Co.,
370 S.C. 578, 599, 635 S.E.2d 649, 660 (Ct. App. 2006) (finding appellant
abandoned an issue on appeal when he made only a conclusory argument and cited
no legal authority to support the issue). We further hold Respondents' motion to
dismiss sufficiently alleged that Kincannon failed to state a claim regarding the
causes of action in his complaint, and the circuit court was able to comprehend the
motion and deal with it appropriately. See Rule 7(b)(1), SCRCP ("An application
to the court for an order shall be by motion which, unless made during a hearing or
trial in open court with a court reporter present, shall be made in writing, shall state
with particularity the grounds therefor, and shall set forth the relief or order
sought."); Camp v. Camp, 386 S.C. 571, 575, 689 S.E.2d 634, 636 (2010)
(explaining the particularity requirement "is to be read flexibly in recognition of
the peculiar circumstances of the case" (quoting Cambridge Plating Co., Inc. v.
Napco, Inc., 85 F.3d 752, 760 (1st Cir. 1996))); id. ("By requiring notice to the
court and the opposing party of the basis for the motion, [R]ule 7(b)(1) advances
the policies of reducing prejudice to either party and assuring that 'the court can
comprehend the basis of the motion and deal with it fairly.'" (quoting Calderon v.
Kansas Dept. of Soc. and Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999)));
id. ("The particularity requirement should not be applied in an overly technical
fashion when the purpose behind the rule is not jeopardized." (quoting Andreas v.
Volkswagen of Am., Inc., 336 F.3d 789, 793 (8th Cir. 2003))).

Additionally, although we agree with Kincannon that it would be improper for the
circuit court to consider an affidavit at the Rule 12(b)(6), SCRCP, stage of
litigation, we find the circuit court did not rely on the affidavit when ruling. See
Doe v. Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007) ("In considering a
motion to dismiss a complaint based on a failure to state facts sufficient to
constitute a cause of action, the trial court must base its ruling solely on allegations
set forth in the complaint."). Thus, we find no error.
2. We hold the circuit court did not err by taking judicial notice of family court
orders from Kincannon and Griffith's divorce action. See Flateau v. Harrelson,
355 S.C. 197, 201-02, 584 S.E.2d 413, 415 ("Generally, in considering a 12(b)(6)
motion, the trial court must base its ruling solely upon allegations set forth on the
face of the complaint."); Rule 201(f), SCRE ("Judicial notice may be taken at any
stage of the proceeding."); Rule 201(b), SCRE ("A judicially noticed fact must be
one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned."); Rule 201(c), SCRE ("A court may take judicial notice, whether
requested or not."). Additionally, Kincannon was given the opportunity to be
heard on this issue when he addressed the family court orders in his motion for
reconsideration, which the circuit court subsequently denied. See Rule 201(e),
SCRE ("A party is entitled upon timely request to an opportunity to be heard as to
the propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial notice has
been taken.").

3. We hold the circuit court properly dismissed all of Kincannon's claims with
prejudice because any amendment would be futile. See Spence v. Spence, 368 S.C.
106, 129, 628 S.E.2d 869, 881 (2006) ("The plaintiff in most cases should be given
an opportunity to file and serve an amended complaint."); id. at 130-31, 628 S.E.2d
at 882 (explaining if the plaintiff fails to supply additional facts "[that] may give
rise to a claim upon which relief may be granted," the appellate court may "affirm
the dismissal of the complaint with prejudice"); Alterna Tax Asset Grp., LLC v.
York Cnty., 434 S.C. 328, 334, 863 S.E.2d 465, 468 (Ct. App. 2021) ("[W]e are
mindful that trial courts should not dismiss pleadings with prejudice at the 12(b)
stage without allowing the pleader to amend its complaint (unless amendment
would be futile)." (emphasis added)). Kincannon's final brief contained eleven
proposals to amend his complaint to survive a motion to dismiss. Although we are
cognizant of the gravity of dismissing a case with prejudice as discussed in Skydive
Myrtle Beach, Incorporated v. Horry County, 426 S.C. 175, 826 S.E.2d 585
(2019), we have reviewed Kincannon's allegations and find he failed to supply
necessary facts to plead a survivable cause of action. See Pallares v. Seinar, 407
S.C. 359, 370, 756 S.E.2d 128, 133 (2014) ("The essential elements of abuse of
process are (1) an ulterior purpose, and (2) a willful act in the use of the process
that is not proper in the regular conduct of the proceeding."); Paradis v. Charleston
Cnty. Sch. Dist., 433 S.C. 562, 574, 861 S.E.2d 774, 780 (2021) ("[A] plaintiff
asserting a civil conspiracy claim must establish (1) the combination or agreement
of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful
means, (3) together with the commission of an overt act in furtherance of the
agreement, and (4) damages proximately resulting to the plaintiff."); Michalson v.
All, 43 S.C. 459, 21 S.E. 323, 323 (1895) (explaining that the specific action of
trespass on the case was abolished); deBondt v. Carlton Motorcars, Inc., 342 S.C.
254, 270, 536 S.E.2d 399, 407 (Ct. App. 2000) ("To be actionable under the [South
Carolina Unfair Trade Practices Act], the unfair or deceptive act or practice must
have an impact upon the public interest."); Charleston, S.C. Registry for Golf &
Tourism, Inc. v. Young Clement Rivers & Tisdale, LLP, 359 S.C. 635, 644, 598
S.E.2d 717, 722 (Ct. App. 2004) (explaining that if there is no duty owed to the
plaintiff, any harm suffered is irrelevant); S.C. Code Ann. § 43-35-10(11) (2015)
(defining "vulnerable adult" as "a person eighteen years of age or older who has a
physical or mental condition which substantially impairs the person from
adequately providing for his or her own care or protection"); S.C. Code Ann. §
43-35-10(10) (2015) (defining "psychological abuse" as "deliberately subjecting a
vulnerable adult to threats or harassment or other forms of intimidating behavior
causing fear, humiliation, degradation, agitation, confusion, or other forms of
serious emotional distress").

4. We hold the circuit court properly denied Kincannon's motion for recusal when
it denied his motion for reconsideration. See Patel v. Patel, 359 S.C. 515, 524, 599
S.E.2d 114, 118 (2004) ("Under South Carolina law, if there is no evidence of
judicial prejudice, a judge's failure to disqualify himself will not be reversed on
appeal."); id. ("It is not sufficient for a party seeking disqualification to simply
allege bias; the party must show some evidence of bias or prejudice."); Reading v.
Ball, 291 S.C. 492, 494, 354 S.E.2d 397, 398 (Ct. App. 1987) ("When no evidence
is presented other than claimed 'adverse' rulings by the judge, the judge is not
required to recuse himself.").

5. Kincannon argues the circuit court erred in nine additional ways. As to his
argument (a), that the circuit court misapprehended the "process" he alleged in his
complaint, we find the circuit court properly contemplated the "process" as used in
the complaint. Regarding argument (b), that the circuit court misapplied
Broadmoor Apartments of Charleston v. Horwitz, 306 S.C. 482, 413 S.E.2d 9
(1991), and related cases as a result of the aforementioned misapprehension of
"process," we hold the "hand of one, hand of all" dictated by Broadmoor is
inapplicable because we find Kincannon failed to allege unlawful conduct.
Because we find the circuit court did not misapprehend the "process" alleged, we
do not believe it misapplied Johnson v. Painter, 279 S.C. 390, 307 S.E.2d 860
(1983) as Kincannon argues in (c). As to argument (d), we find the circuit court
properly identified the Eleventh Circuit Solicitor's Office as the prosecuting
agency. Regarding argument (e), we disagree with Kincannon's assertion that the
circuit court treated probable cause as an element of the abuse of process claim
because the circuit court's statement regarding probable cause was made after it
concluded Kincannon failed to state facts sufficient to support an abuse of process
claim; thus, we find no error.
As to Kincannon's arguments (f), (g), and (h), we hold he abandoned these
arguments on appeal because he cited no authority to support his propositions. See
Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct.
App. 2001) ("South Carolina law clearly states that short, conclusory statements
made without supporting authority are deemed abandoned on appeal and therefore
not presented for review."). Finally, as to argument (i), we find the dismissal of the
civil conspiracy claim was proper because Kincannon failed to supply additional
facts that may give rise to a claim upon which relief may be granted. See Spence,
368 S.C. at 130-31, 628 S.E.2d at 882 (explaining if the plaintiff fails to supply
additional facts "[that] may give rise to a claim upon which relief may be granted,"
the appellate court may "affirm the dismissal of the complaint with prejudice").
AFFIRMED. 1

GEATHERS and HILL, JJ., and LOCKEMY, A.J., concur.

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