Wellington v. Floyd

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

Louise Wellington, as GAL for Johnny Lee Sanders,       
Appellant,

v.

Roberta Floyd, individually, and as Administrator of Manor House of Olanta
and Manor House of Olanta,        Respondent.

Appeal From Florence County

B. Hicks Harwell, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-575

Submitted October 1, 2004 – Filed November
16, 2004

REVERSED AND REMANDED

Ralph J. Wilson, of Conway, for Appellant.

Thomas H. Milligan, of Mt. Pleasant, for Respondent.

PER CURIAM: Louise Wellington, Guardian
Ad Litem for Johnny Lee Sanders, appeals the circuit court’s order granting
Respondent’s motion for summary judgment on Sanders’ action for breach of duty
of care.  We reverse and remand. [1]

FACTS

In 1987, an injury to Sanders’ head rendered
him incapable of living independently.  Sanders also suffered from seizures
as a result of the injury and had to take several medications daily to control
the seizures.  In 2000, Sanders became a resident of Manor House of Olanta,
a residential care facility in Olanta, South Carolina.  In the contract between
the parties, Manor House agreed to provide Sanders with certain services,
mainly room and board, laundry, and the supervision and administration of
medications, although upon admission into the facility Sander’s doctor
declared him “capable of self administration of medications.”  The contract
also provided that Sanders could “come and go as he please[d].” 

Sanders left the premises of the residential
care facility on April 11, 2001.  Upon leaving the facility, he was arrested
for trespassing and spent more than two weeks in the Effingham Jail in the
custody of the Florence County Sheriff’s Department, until he was released
to the care of his sister.  Manor House did not know of Sanders’ whereabouts
during the two-week period and did not attempt to find Sanders or notify his
family members of his absence.  Three days after being released to his sister’s
care, Sanders suffered seizures.

As an assisted living facility, Manor House of Olanta
is licensed under the South Carolina Department of Health and Environmental
Control’s Regulations.  25A S.C.Code Ann.Regs. 61-84 (Supp. 2000).  The regulations
require a facility to immediately report residents who have left the facility
under circumstances that raise concern about the resident’s safety to any
agency providing services to the resident, next of kin, and local law enforcement. 
Id. at § 404 (c).   

Sanders brought an action against Roberta Floyd,
individually and as Administrator of Manor House of Olanta, and Manor House
of Olanta (Respondents) for breach of duty of care, arguing that the regulations
create a duty of care for a negligence per se action.  Respondents
filed a Motion for Summary Judgment with a Memorandum in support of the Motion,
arguing that the licensing regulations do not provide Sanders with a cause
of action, and the obligations of the parties are governed merely by the contract
between them. 

The Clerk of Court notified the parties that
a hearing would be held on August 29, 2002.  Respondent’s counsel also notified
Sanders’ counsel about the hearing in two letters, dated August 1, 2002 and
August 9, 2002.  The second letter specifically requested that any discovery
be completed prior to the hearing and offered to “accommodate [counsel] in
any way to have any discovery accomplished prior to the hearing.”  After a
request for continuance by Sanders’ counsel, the hearing was rescheduled for
October 23, 2002. 

The Clerk of Court sent notification of the new
hearing date to the parties on October 2, 2002.  Sanders filed a Memorandum
in Opposition to the Motion for Summary Judgment on October 8, 2002, which
did not include any affidavits or supporting testimony.  Sanders did not send
a copy of the memorandum to Respondent.  Sanders’ counsel also did not appear
at the October 23rd hearing.  The judge held that Respondent owed no duty
to the plaintiff and therefore did not breach any standard of care to the
plaintiff.

Sanders filed a Motion for Reconsideration on
November 7, 2002, accompanied by a Memorandum in Support of Motion for Reconsideration. 
The judge denied the Motion for Reconsideration based on the “different standards
of care that are applicable and the evidence considered and arguments made
at the previous hearing.”  Louise Wellington, as Sanders’ Guardian
Ad Litem, now appeals.

LAW/ANALYSIS

I.         
Notice

Sanders maintains the circuit court erred in
finding proper notice had been given to him pursuant to Rules 5 and 6, SCRCP,
in regards to the October 23, 2002 hearing.  We disagree.

Rules 5 and 6 of the South Carolina Rules of
Civil Procedure provide that for every written motion, notice of the hearing
must be served upon each of the parties through their attorney, if there
is one, by delivering a copy to him or by mailing it to him at his last
known address.  Rule 5(a) and (b)(1), SCRCP. 

The Clerk of Court properly notified Sanders,
by mailing notice of the hearing to the most recent address on record for
Sanders’ counsel.  Thus, service was proper.

II.        
Summary Judgment

Sanders argues the circuit court erred in granting
summary judgment when discovery had not yet been completed.  We disagree.

“[S]ummary judgment must not be granted until
the opposing party has had a full and fair opportunity to complete discovery.” 
Baughman v. American Tel. & Tel., Co., 306 S.C. 101, 112, 410
S.E.2d 537, 543 (1991).  Summary judgment also should not be granted if
a party can demonstrate that further discovery will uncover additional evidence
relevant to the issue and that they are not merely engaged on a “fishing
expedition.”  Id. at 112, 410 S.E.2d at 544.  Sanders neither requested
additional time from the court for discovery, nor proved that any extra
time would be beneficial to resolving the summary judgment motion.  In addition,
opposing counsel sent correspondence volunteering to help with any discovery
that needed to be completed before the hearing.  Therefore, Sanders had
a full and fair opportunity to complete discovery.

Sanders also claims the circuit court erred
in granting summary judgment because, viewing the evidence in the light
most favorable to Sanders, material issues of fact exist regarding whether
Floyd or Manor House breached a duty of care to Sanders or proximately caused
Sanders’ injuries.  We agree.

On appeal of a grant of a summary judgment,
we apply the same standard that governs the trial court under Rule 56(c),
SCRCP:  summary judgment is proper when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter
of law.  Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860
(2002).  In determining whether an issue of fact exists, the evidence and
all inferences that can reasonably be drawn therefrom must be viewed in
the light most favorable to the nonmoving party.  Faile v. South Carolina
Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002). 
“Summary judgment is not appropriate where further inquiry into the facts
of the case is desirable to clarify the application of the law.”  Vermeer
Carolina’s, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 59, 518 S.E.2d
301, 306 (Ct. App. 1999).  “Even when there is no dispute as to evidentiary
facts, but only as to the conclusions or inferences to be drawn from them,
summary judgment should be denied.”  Hall v. Fedor, 349 S.C. 169,
173-74, 561 S.E.2d 654, 656 (Ct. App. 2002).  Moreover, “[s]ummary judgment
is a drastic remedy, which should be cautiously invoked so that no person
will be improperly deprived of a trial of the disputed factual issues.” 
Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 349
S.C. 356, 363, 563 S.E.2d 331, 336 (2002).

Rule 56(e), SCRCP, states that a party opposing
a motion for summary judgment “may not rest upon the mere allegations or
denials of his pleading.”  The party must submit affidavits or the like,
which “set forth specific facts showing that there is a genuine issue for
trial.  If he does not so respond, summary judgment, if appropriate, shall
be entered against him.”  Rule 56(e), SCRCP.

In CEL Products, LLC v. Rozelle, this
court held an employer was entitled to summary judgment as to a former employee’s
claims because the former employee merely relied on his pleadings and did
not present opposing affidavits.  357 S.C. 125, 130, 591 S.E.2d 643, 645
(Ct. App. 2004).  When a plaintiff is faced with a defendant’s motion for
summary judgment that is supported by evidence, the plaintiff cannot defeat
the motion by relying upon the mere allegations of his complaint, but must
disclose the facts he intends to rely on by affidavit or other proof.  Dyer
v. Moss, 284 S.C. 208, 211, 325 S.E.2d 69, 70 (Ct. App. 1995).  “A conclusory
statement as to the ultimate issue in a case is not sufficient to create
a genuine issue of fact for purposes of resisting summary judgment.”  Shupe
v. Settle, 315 S.C. 510, 516-517, 445 S.E.2d 651, 655 (Ct. App. 1994). 

However, “‘[the] party opposing summary judgment
need not come forward in any way if the moving party has not supported his
motion to the point that it is a sham.’”  Title Ins. Co. of Minnesota
v. Christian, 267 S.C. 71, 76, 226 S.E.2d 240, 242 (1976) (quoting Brunswick
Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967)).  “‘Where the
evidentiary matter in support of the motion does not establish the absence
of a genuine issue, summary judgment must be denied, even if no opposing
evidentiary matter is presented.’”  Id. (quoting Fed. R. Civ. P.
56).  The party moving for summary judgment carries the initial burden of
showing an absence of evidentiary support for the nonmoving party’s case. 
NationsBank v. Scott Farm, 320 S.C. 299, 303, 465 S.E.2d 98, 100
(Ct. App. 1995).

Although Sanders did not
offer any affidavits in opposition to Respondent’s motion, Respondent’s
evidentiary showing as to the issue of negligence fails to establish the
absence of a genuine issue.  Respondent maintains its contract with Sanders
provided that he was free to “come and go” as he pleased and submitted a
sworn affidavit prepared by Roberta Floyd denying she or Manor House had
a duty of care.  However, section 404 (c) of the South Carolina Code Regulations
61-84 (Supp. 2000) states:

In cases where a resident
leaves the facility under circumstances which raise concerns about his/her
safety, the following must be contacted immediately: next of kin or responsible
person, sponsoring agency or any other agency providing services to the
client and local law enforcement.

25A S.C.Code Ann.Regs. 61-84
(Supp. 2000).

Whether Sanders left the
facility under circumstances that should have raised concern about his safety
is a genuine issue of material fact, therefore, the motion for summary judgment
should have been denied. 

REVERSED AND REMANDED.

STILWELL, BEATTY, and SHORT, JJ., concur.

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