Granatino v. Williams

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

Kevin M. Granatino, Appellant,

v.

Calvin Williams, Clemson University, South Carolina
Department of Transportation and Thrift Development
Corporation, Defendants,

Of which South Carolina Department of Transportation
and Thrift Development Corporation are the
Respondents.

Appellate Case No. 2018-002166

Appeal From Pickens County
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2022-UP-003
Heard November 10, 2021 – Filed January 5, 2022

AFFIRMED

Steven Edward Buckingham, of The Law Office of
Steven Edward Buckingham, LLC, of Greenville;
Stephen R.H. Lewis, of Patrick, Lewis & Watts, P.A., of
Greenville; and George L. Marlette, III, of Norwell,
Massachusetts, all for Appellant.
James W. Logan, Jr., of Logan Jolly & Smith, LLP, of
Anderson, for Respondent South Carolina Department of
Transportation.

Charles Stuart Mauney, of Gallivan, White & Boyd, PA,
of Greenville; William Thomas Young, III, of Ryan
Montgomery Attorney at Law, LLC, of Greenville; and
Robert Daniel Corney, of The Derrick Law Firm, of
Conway, all for Respondent Thrift Development
Corporation.

PER CURIAM: This is an appeal of a summary judgment against the plaintiff,
Kevin Granatino, in a personal injury case. The circuit court ruled in favor of the
South Carolina Department of Transportation (SCDOT) and a construction firm—
Thrift Development (Thrift). The court found Granatino was more than 50% at fault
as a matter of law and that the case could not proceed because Granatino had not
retained an expert. We affirm based on our finding that the expert issue precludes
this case from moving forward.

FACTS

When Granatino was a senior at Clemson University, a car hit him near campus as
he was crossing a busy intersection by foot at night. This intersection was also the
site of a construction project. SCDOT led the project and subcontracted with Thrift
to do much of the work.

Granatino sued the at-fault driver, SCDOT, Thrift, and Clemson for negligently
causing his severe injuries. This appeal concerns only SCDOT and Thrift.

In October 2017, the parties entered into a consent scheduling order that called for
Granatino to name an expert by January 1, 2018. Granatino did not name an expert
by that deadline. Shortly thereafter, on January 12, Granatino's lawyers requested
permission to withdraw as counsel, citing a fundamental disagreement on the proper
course of action in the case. Granatino consented to the request, and the circuit court
granted the motion to withdraw.

Both SCDOT and Thrift moved for summary judgment days after Granatino's
lawyers asked to withdraw as counsel. Granatino's stepfather, George Marlette,
subsequently applied for admission pro hac vice, which the circuit court granted.
The circuit court held the summary judgment hearing a little less than a month after
Marlette's admission.

SCDOT and Thrift argued summary judgment was proper because Granatino needed
expert testimony to prove his case, he had not disclosed an expert, and he could not
disclose an expert because the deadline for him to do so had expired. They further
argued Granatino was the preponderant cause of his injuries and was therefore barred
from recovery under South Carolina's version of modified comparative negligence.
See Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991)
("[A] plaintiff in a negligence action may recover damages if his or her negligence
is not greater than that of the defendant.").

Granatino made an oral request to the circuit court for additional time to disclose an
expert. He explained he had not acquired substitute counsel until after the deadline
for disclosing experts passed, but as described above, the deadline had already
passed by the time Granatino's former lawyers sought leave to withdraw from the
case. He also argued there was evidence suggesting SCDOT and Thrift were
negligent and that his negligence relative to everyone else involved in the incident
was a question of fact for a jury to decide.

The circuit court refused to extend the deadline, found SCDOT and Thrift bore no
fault and were not proximate causes of Granatino's injuries, and granted the motions
for summary judgment. Granatino filed a Rule 59(e), SCRCP, motion to alter or
amend, which the circuit court denied. Granatino now appeals the circuit court's
order granting summary judgment.

ISSUES

1. Did the circuit court err in determining Granatino's case required expert
testimony and in refusing Granatino additional time to find an expert?

2. Did the circuit court err in determining Granatino was more than 50% at fault
as a matter of law?

3. Did the summary judgment order erroneously adjudicate genuine disputes of
material facts?

STANDARD OF REVIEW

"An appellate court reviews the granting of summary judgment under the same
standard applied by the [circuit] court under Rule 56(c), SCRCP." Bovain v. Canal
Ins., 383 S.C. 100, 105, 678 S.E.2d 422, 424 (2009). "Rule 56(c) of the South
Carolina Rules of Civil Procedure provides that a [circuit] court may grant a motion
for summary judgment 'if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.'" Id. (quoting Rule 56(c), SCRCP). "In determining whether any
triable issues of fact exist, the evidence and all inferences which can be reasonably
drawn from the evidence must be viewed in the light most favorable to the
nonmoving party." Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 329-30, 673
S.E.2d 801, 802 (2009).

ANALYSIS

Expert testimony is generally necessary in professional negligence cases; however,
it is not necessary if the professional's negligence or lack thereof can be evaluated
using common knowledge. See City of York v. Turner-Murphy Co., 317 S.C. 194,
196, 452 S.E.2d 615, 617 (Ct. App. 1994) ("Where professional negligence is
alleged, expert testimony is usually necessary to establish both the standard of care
and the professional's deviation from that standard, unless the subject matter is
within the area of common knowledge and experience of the layman so that no
special learning is needed to evaluate the professional's conduct."); see also Dawkins
v. Union Hosp. Dist., 408 S.C. 171, 176-78, 758 S.E.2d 501, 504 (2014) (an example
of an "ordinary negligence" case against a professional that did not require expert
testimony).

On appeal, Granatino argues expert testimony was not necessary to prove his case.
Yet, the record reflects Granatino never argued to the circuit court that expert
testimony was not required. The only expert-related argument Granatino made at
the summary judgment hearing was that he should receive additional time to procure
an expert, which we address below. An appellant must raise an issue to the circuit
court in order to preserve it for appellate review. See S.C. Dep't of Transp. v. First
Carolina Corp. of S.C., 372 S.C. 295, 302, 641 S.E.2d 903, 907 (2007). For that
reason, we are bound by the circuit court's holding that Granatino's claim requires
expert testimony.

Granatino argues he should have had more time to procure expert testimony because
his current counsel arrived in the case late, after the time for disclosing expert
witnesses set by the scheduling order passed. He requests we find the circuit court
abused its discretion by refusing to extend the deadlines. We cannot grant this
request.
Neither Marlette nor local counsel filed a formal motion to extend the deadline as
soon as they could. "An abuse of discretion occurs when the judge's ruling is based
upon an error of law, . . . is without evidentiary support[,]. . . reveals no discretion
was exercised[,] or . . . does not fall within the range of permissible decisions
applicable in a particular case." Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 5, 630
S.E.2d 464, 467 (2006)); see also Rish v. Rish, 296, S.C. 14, 15, 370 S.E.2d 102, 103
(Ct. App. 1988) ("When an appellate court is in agreement with a discretionary
ruling or is only mildly in disagreement, it says that the [circuit court] did not abuse
[its] discretion."). Granatino never made a formal motion to extend the scheduling
order or the expert deadline, and, as already noted, the deadline came and went
before Granatino's original counsel moved to withdraw. During the summary
judgment hearing, the circuit court expressed surprise that the plaintiff still did not
have an expert and was asking for more time when the case was nearly two years
old. To his credit, Granatino's counsel candidly agreed the court's surprise was
understandable. We cannot say the court abused its discretion by honoring the
deadline in the scheduling order.

Because the expert issue is dispositive, we need not reach the remaining issues. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591,
598 (1999) (stating an appellate court does not need to review remaining issues when
its determination of a prior issue is dispositive).

AFFIRMED.

KONDUROS, HILL, and HEWITT, JJ., concur.