Mack v. Gates

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

Wanda Mack, Appellant,

v.

Carmen Gates, Respondent.

Appellate Case No. 2015-001718

Appeal From Orangeburg County
Maité Murphy, Circuit Court Judge

Unpublished Opinion No. 2017-UP-144
Submitted January 1, 2017 – Filed April 5, 2017

AFFIRMED

Richard Alexander Murdaugh, of Peters Murdaugh
Parker Eltzroth & Detrick, PA, of Hampton; and Steven
Dean Murdaugh, of Peters Murdaugh Parker Eltzroth &
Detrick, PA, of Walterboro, for Appellant.

James B. Lybrand, Jr., of McDonald, McKenzie, Rubin,
Miller & Lybrand, LLP, of Columbia, for Respondent.

PER CURIAM: Wanda Mack appeals the circuit court's orders denying her
motions to restore her case to the docket and to reconsider and finding Mack did
not file her motion to restore within the one-year timeframe set forth in Rule 40(j)
of the South Carolina Rules of Civil Procedure as well as the statute of limitations
had run. Mack argues (1) the one-year timeframe to file her motion to restore had
not run because she was never served with a copy of the consent order striking her
case from the docket and (2) even if the one-year timeframe to file her motion to
restore had run, the tolling provisions under Rule 40(j), SCRCP, were irrelevant
because she filed her case within the statute of limitations and her case was not
dismissed but instead remained in an inactive status. We affirm1 pursuant to Rule
220(b), SCACR, and the following authorities:

1. As to issue one: Proctor v. Steedley, 398 S.C. 561, 573, 730 S.E.2d 357, 363
(Ct. App. 2012) ("This court reviews questions of law de novo."); Rule 40(j),
SCRCP (providing for the tolling of the statute of limitations for a claim stricken
under this subsection if the claim is restored upon motion made within one year of
the date stricken); Maxwell v. Genez, 356 S.C. 617, 621, 591 S.E.2d 26, 28 (2003)
("[T]he unambiguous language [of Rule 40(j)] provides that, if the claim is restored
within one year after it is stricken, the statute of limitations is tolled for that
period." (emphasis removed)); Goodwin v. Landquest Dev., LLC, 414 S.C. 623,
630, 779 S.E.2d 826, 830 (Ct. App. 2015) ("The effect of the rule is not to set a
new deadline, but to extend the statute of limitations' deadline by applying the
rule's tolling provision when the motion to restore is made within a year.");
Bowman v. Richland Mem'l Hosp., 335 S.C. 88, 91, 515 S.E.2d 259, 260 (Ct. App.
1999) ("An order is not final until it is written and entered by the clerk of court.");
Upchurch v. Upchurch, 367 S.C. 16, 24, 624 S.E.2d 643, 647 (2006) ("Entry of the
order occurs when the clerk of court files the order."), disapproved of on other
grounds by Miles v. Miles, 393 S.C. 11, 711 S.E.2d 880 (2011); Rule 77(d),
SCRCP ("Immediately upon the entry of an order or judgment the clerk shall serve
a notice of the entry by first class mail upon every party affected
thereby . . . . Such mailing or electronic transmission shall not be necessary to
parties who have already received notice."); Rosen, Rosen & Hagood v. Hiller, 307
S.C. 331, 332-34, 415 S.E.2d 117, 117-18 (Ct. App. 1992) (finding the appellants
received sufficient notice of the filing of an order in compliance with Rule 77(d)
when they received a letter enclosing an unsigned copy of the order).

2. As to issue two: 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 [circuit court] to be preserved
for appellate review."); Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339,

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
611 S.E.2d 485, 487-88 (2005) ("Appellant ha[s] the burden of providing a
sufficient record [on appeal]."); Zaman v. S.C. Bd. of Med. Examrs., 305 S.C. 281,
285, 408 S.E.2d 213, 215 (1991) (finding an issue was not preserved when the
record did not show the issue was raised); Noisette v. Ismail, 304 S.C. 56, 58, 403
S.E.2d 122, 124 (1991) (finding an issue was not preserved when the circuit court
did not rule on the issue and the appellant did not file a Rule 59(e), SCRCP,
motion); Dodge v. Dodge, 332 S.C. 401, 418, 505 S.E.2d 344, 352-53 (Ct. App.
1998) (finding an appellant's argument was not preserved for appeal when he
"failed to specifically raise the issue in his Rule 59(e), SCRCP, motion for
reconsideration").

AFFIRMED.

LOCKEMY, C.J., and KONDUROS and MCDONALD, JJ., concur.