Griffis v. Cherry Hill Estates

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

Cynthia Griffis, Plaintiff,

v.

Cherry Hill Estates, LLC, Eugene O'Neil and Ronald
Faulkner, Defendants,

Cherry Hill Estates, LLC and Ronald Faulkner, Third
Party Plaintiffs, Appellants,

v.

Anthony E. Griffis, Third Party Defendant, Respondent.

Appellate Case No. 2013-001407

Appeal From Beaufort County
Marvin H. Dukes, III, Master-in-Equity

Unpublished Opinion No. 2015-UP-167
Heard January 13, 2015 – Filed April 1, 2015

AFFIRMED

Michael W. Mogil, of Michael W. Mogil, P.A., of Hilton
Head Island, for Appellants.
Anthony E. Griffis, of Aiken, Pro Se.

PER CURIAM: Cherry Hill Estates, LLC and Ronald Faulkner (collectively
Appellants) appeal the trial court's order granting summary judgment to Anthony
E. Griffis on Appellants' causes of action for breach of fiduciary duty and
professional negligence, in which the court held the causes of action were barred
by the statute of limitations because Appellants failed to timely file an expert
affidavit as required by section 15-36-100(B) of the South Carolina Code (Supp.
2014).

1. We find unpreserved Appellants' argument an expert affidavit was not required
because the allegations of negligence involved subject matter that was "within the
ambit of common knowledge and experience, so that no special learning is needed
to evaluate the conduct of the defendant" pursuant to subsection 15-36-100(C)(2)
(Supp. 2014). The trial court did not expressly rule on this argument and
Appellants failed to raise the issue in their motion to alter or amend. See Noisette
v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding appellate court
cannot address an issue the circuit court did not explicitly rule on when the
appellant did not raise the issue in a motion to alter or amend).

2. We find no error in the trial court's ruling the statute of limitations began to run
as of the date of the closing. See Martin v. Companion Healthcare Corp., 357 S.C.
570, 575-76, 593 S.E.2d 624, 627 (Ct. App. 2004) (stating under the discovery
rule, "the three-year clock starts ticking on the date the injured party either knows
or should have known by the exercise of reasonable diligence that a cause of action
arises from the wrongful conduct" (internal quotation marks omitted)); Epstein v.
Brown, 363 S.C. 372, 376, 610 S.E.2d 816, 818 (2005) (explaining reasonable
diligence means "simply that an injured party must act with some promptness
where the facts and circumstances of an injury would put a person of common
knowledge and experience on notice that some right of his has been invaded or that
some claim against another party might exist"). It is undisputed Faulkner executed
a power of attorney authorizing the closing attorney to act on his behalf concerning
the sale, including authorizing him to execute any guaranties. See Crystal Ice Co.
of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 309, 257 S.E.2d 496, 497
(1979) ("It is well established that a principal is affected with constructive
knowledge of all material facts of which his agent receives notice while acting
within the scope of his authority."). Even if the closing attorney did not have
knowledge of the Agreement Regarding Cherry Hill Estates, LLC (Agreement),
imputed notice is not necessary as Faulkner had direct knowledge of the
Agreement as he signed it himself. See Regions Bank v. Schmauch, 354 S.C. 648,
663, 582 S.E.2d 432, 440 (Ct. App. 2003) ("A person signing a document is
responsible for reading the document and making sure of its contents. Every
contracting party owes a duty to the other party to the contract and to the public to
learn the contents of a document before he signs it.").

3. We find no merit to Appellants' argument the relation-back doctrine of Rule
15(c), SCRCP, applies to bring the filing of the expert affidavit within the
limitations period. See S.C. Code Ann. § 15-36-100(F) (Supp. 2014) ("If a
plaintiff fails to file an affidavit as required by this section, and the defendant
raises the failure to file an affidavit by motion to dismiss filed contemporaneously
with its initial responsive pleading, the complaint is not subject to renewal after the
expiration of the applicable period of limitation unless a court determines that the
plaintiff had the requisite affidavit within the time required pursuant to this section
and the failure to file the affidavit is the result of a mistake."); S.C. Const. art. V, §
4 ("Subject to the statutory law, the Supreme Court shall make rules governing the
practice and procedure in all such courts." (emphasis added)); Marichris, LLC v.
Derrick, 384 S.C. 345, 353, 682 S.E.2d 301, 305 (Ct. App. 2009) ("A rule of civil
procedure may not limit the provisions of a statute."); see, e.g., Hendricks v. State,
387 S.C. 221, 223, 692 S.E.2d 892, 893 (2010) ("Where, as here, the General
Assembly has provided a specific procedure to be followed in PCR cases, and that
method is inconsistent with the more general procedure of the SCRCP, the
statutory procedure must be followed.").

4. We find no merit to Appellants' argument Griffis's failure to appeal the trial
court's order of October 26, 2010, granting Appellants an extension to re-file the
complaint renders the order the "law of the case." As this order was not
immediately appealable, it could not establish the law of the case. See Pruitt v.
Bowers, 330 S.C. 483, 488, 499 S.E.2d 250, 253 (Ct. App. 1998) (stating an appeal
of an order granting a motion to amend a complaint is interlocutory and generally
not appealable); McLendon v. S.C. Dep't of Highways & Pub. Transp., 313 S.C.
525, 526 n.2, 443 S.E.2d 539, 540 n.2 (1994) ("Like the denial of a motion for
summary judgment, the denial of a motion to dismiss does not establish the law of
the case and the issue can be raised again at a later stage of the proceedings.").

5. We find unpreserved Appellants' argument that section 15-36-100(C)(1) of the
South Carolina Code (Supp. 2014) grants the trial court discretion to permit a
plaintiff to amend a pleading to include the expert affidavit if "justice requires" as
this argument was not ruled on by the trial court and was not raised in the motion
to alter or amend. See 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 trial judge to be preserved for
appellate review."); Doe v. Roe, 369 S.C. 351, 376, 631 S.E.2d 317, 330 (Ct. App.
2006) ("An issue is not preserved where the trial court does not explicitly rule on
an argument and the appellant does not make a Rule 59(e) motion to alter or amend
the judgment.").

6. We disagree with Appellants' assertion the doctrine of equitable tolling
precludes application of the limitations period to bar their claims. See Hooper v.
Ebenezer Senior Servs. & Rehab. Ctr., 386 S.C. 108, 116-17, 687 S.E.2d 29, 33
(2009) ("The equitable power of a court is not bound by cast-iron rules but exists to
do fairness and is flexible and adaptable to particular exigencies so that relief will
be granted when, in view of all the circumstances, to deny it would permit one
party to suffer a gross wrong at the hands of the other." (emphasis added)); id. at
117, 687 S.E.2d at 33 (cautioning equitable tolling is a doctrine that should be used
sparingly and only when the interests of justice compel its use).

7. We find unpreserved Appellants' argument the trial court erred in granting
summary judgment on their claims for breach of fiduciary duty because a fiduciary
duty apart from the attorney-client relationship may have arisen from Griffis's role
as the seller. This argument was not ruled on by the trial court and was not raised
in Appellant's motion to alter or amend, in which Appellants only asked permission
to re-plead the cause of action. See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24,
602 S.E.2d 772, 780 (2004) (stating a party must file a motion to alter or amend
when an issue or argument has been raised, but not ruled on, in order to preserve it
for appellate review).

AFFIRMED.

HUFF, SHORT, and KONDUROS, JJ., concur.