Kathy Kennedy v. Bernard Myatt, III

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

Kathy Kennedy, Appellant,

v.

Bernard Myatt, III and Myatt Air Conditioning, LLC,
Respondents.

Appellate Case No. 2024-000210

Appeal From Charleston County
Robert J. Bonds, Circuit Court Judge

Unpublished Opinion No. 2026-UP-117
Submitted February 3, 2026 – Filed March 11, 2026

AFFIRMED

Kathy Kennedy, of James Island, pro se.

Francis Marion Ervin, II, of Rogers Townsend, LLC, of
Charleston, for Respondents.

PER CURIAM: Kathy Kennedy appeals the circuit court's order affirming the
magistrate court's grant of summary judgment in favor of Myatt Air Conditioning,
LLC (MAC). On appeal, Kennedy argues the magistrate court (1) incorrectly
found gross negligence was not applicable to the statute of limitations, despite the
fact MAC was found guilty of more than one building code violation; (2)
incorrectly found Kennedy knew or should have known earlier that she had a cause
of action for a hidden defect that caused the damage to her home; and (3) failed to
consider equitable tolling in light of delays caused by the COVID-19 pandemic.1
We affirm pursuant to Rule 220(b), SCACR.

We hold the circuit court did not err in affirming the magistrate court's grant of
summary judgment in favor of MAC. See USAA Prop. & Cas. Ins. Co. v. Clegg,
377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008) (noting that an appellate court
reviews the granting of a motion for summary judgment, under "the same standard
that governs the [circuit] court under Rule 56(c) [of the South Carolina Rules of
Civil Procedure]."); Singleton v. Sherer, 377 S.C. 185, 197, 659 S.E.2d 196, 202
(Ct. App. 2008) ("On appeal from an order granting summary judgment, the
appellate court will review all ambiguities, conclusions, and inferences arising in
and from the evidence in a light most favorable to the non-moving party."); Rule
56(c), SCRCP (stating that summary judgment is proper when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits . . . 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"); Kitchen Planners,
LLC v. Friedman, 440 S.C. 456, 463, 892 S.E.2d 297, 301 (2023) ("[T]he 'mere
scintilla' standard does not apply under Rule 56(c)."); id. ("Rather, the proper
standard is the 'genuine issue of material fact' standard set forth in the text of the
Rule."); Brooks v. Northwood Little League, Inc., 327 S.C. 400, 403, 489 S.E.2d
647, 648 (Ct. App. 1997) ("[W]hen the evidence is susceptible of only one
reasonable interpretation, summary judgment may be granted."); McMaster v.
Dewitt, 411 S.C. 138, 143, 767 S.E.2d 451, 453 (Ct. App. 2014) ("Summary
judgment is appropriate when a plaintiff does not commence an action within the
applicable statute of limitations."). First, allegations of gross negligence do not toll
a statute of limitations, and the applicable statute of limitations for negligence or
breach of contract actions is three years. See S.C. Code Ann. §§ 15-3-530(1), (5)
(2005) (providing a three-year statute of limitations for "action[s] upon a contract"
and injury to the rights of another, "not arising on contract" respectively);
Wedgewood Condo. Ass'n v. Centex Homes, 447 S.C. 54, 71, 923 S.E.2d 288, 296
(Ct. App. 2025) (explaining the statute of limitations for construction defects claim

1
In her reply brief, Kennedy raised an additional issue—whether the magistrate
erred in dismissing Bernard Myatt, III, as a party to the lawsuit. However, because
this issue was raised for the first time in her reply brief, we hold Kennedy waived
any right to challenge it. See ABB, Inc. v. Integrated Recycling Grp. of SC, LLC,
432 S.C. 545, 553, 854 S.E.2d 171, 175 (Ct. App. 2021) (holding an issue was
waived when the appellant raised it for the first time in its reply brief).
regarding a nine-building condominium was three years and fell under sections
15-3-530(1) and (5)), reh'g denied (Dec. 2, 2025). Second, Kennedy knew or
should have known by January 19, 2020, when she filed a complaint with the
South Carolina Department of Labor, Licensing, and Regulation (SCDLLR) that
she had a cause of action for negligence or breach of contract; thus, the three-year
statute of limitations for her negligence and breach of contract actions had run at
the time Kennedy filed her complaint on January, 19, 2020 with SCDLLR. See
Wedgewood Condo. Ass'n, 447 S.C. at 71, 923 S.E.2d at 296 ("For construction
defect claims, the statute of limitations begins to run from the date of
discovery . . . [or] 'the date the injured . . . should have known by the exercise of
reasonable diligence that a cause of action arises from wrongful conduct.'")
(quoting McAlhany v. Carter, 415 S.C. 54, 63, 781 S.E.2d 105, 110 (Ct. App.
2015)); Maher, 331 S.C. at 377, 500 S.E.2d at 207 ("A cause of action should have
been discovered through exercise of reasonable diligence when the facts and
circumstances would have put a person of common knowledge and experience on
notice that some right had been invaded or a claim against another party might
exist."); Wedgewood Condo. Ass'n, 447 S.C. at 71, 923 S.E.2d at 297 ("[T]he fact
that the injured party may not comprehend the full extent of the damage is
immaterial.") (quoting McAlhany, 415 S.C. at 63, 781 S.E.2d at 110).

Additionally, we hold Kennedy's argument on equitable tolling was not preserved
for appellate review because the issue was not raised to and ruled upon by the
circuit court. See Equivest Fin., LLC v. Ravenel, 422 S.C. 499, 505, 812 S.E.2d
438, 441 (Ct. App. 2018) ("In order for an issue to be preserved for appellate
review, it must have been raised to and ruled upon by the [circuit] court."); id.
("Issues not raised and ruled upon in the [circuit] court will not be considered on
appeal.").

AFFIRMED.2

GEATHERS, HEWITT, and CURTIS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.