Terrence L. Rush v. Michael B. Stribble

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

Terence L. Rush, Appellant,

v.

Michael B. Stribble, Individually and in his Official
capacity as Sergeant at the Newberry County Sheriff's
Office, Respondent.

Appellate Case No. 2021-000817

Appeal From Newberry County
Donald B. Hocker, Circuit Court Judge

Unpublished Opinion No. 2024-UP-195
Submitted May 8, 2024 – Filed May 29, 2024

AFFIRMED

Terence L. Rush, pro se.

David Allan DeMasters, of Riley Pope & Laney, LLC, of
Columbia, for Respondent.

PER CURIAM: Terence L. Rush appeals the dismissal of his 2020 action for
fraud against Michael B. Stribble, Individually and in his official capacity as
Sergeant at the Newberry County Sheriff's Office (Stribble). The circuit court
granted a motion by Stribble to dismiss the action based on findings that the claim
was time-barred and Stribble was not a proper party to the lawsuit. We affirm
pursuant to Rule 220(b), SCACR.

The circuit court found Rush's claim was time-barred by the two-year statute of
limitations provided in the South Carolina Tort Claims Act (SCTCA). See S.C.
Code Ann. § 15-78-110 (2005) (providing an action pursuant to the SCTCA is
"forever barred" if it was not "commenced within two years after the date the loss
was or should have been discovered" or, if a verified claim was filed, "commenced
within three years of the date the loss was or should have been discovered"). On
appeal, Rush disputes the premise that his action was governed by the SCTCA and
contends his action was subject to the three-year statute of limitations provided in
section 15-3-530 of the South Carolina Code (2005). The circuit court did not rule
on whether Rush's action was timely under section 15-3-530; nevertheless, we
agree with Stribble that the order of dismissal should be affirmed because the
action was time-barred under this section as well as under section 15-78-110. See
I'On , L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723
(2000) ("Under the present rules, a respondent—the 'winner' in the lower court—
may raise on appeal any additional reasons the appellate court should affirm the
lower court's ruling, regardless of whether those reasons have been presented to or
ruled on by the lower court."); id. at 420, 526 S.E.2d at 723 ("The appellate court
may review respondent's additional reasons and, if convinced it is proper and fair
to do so, rely on them or any other reason appearing in the record to affirm the
lower court's judgment.").

In South Carolina, the statute of limitations for a cause of action for fraud is
governed by the "discovery rule." Burgess v. Am. Cancer Soc., S.C. Div., Inc., 300
S.C. 182, 185, 386 S.E.2d 798, 799 (Ct. App. 1989). "In applying the discovery
rule, inquiry is focused upon whether the complaining party acquired knowledge of
any existing facts 'sufficient to put said party on inquiry which, if developed, will
disclose the alleged fraud.'" Id. (quoting Walter J. Klein Co., v. Kneece, 239 S.C.
478, 483, 123 S.E.2d 870, 874 (1962)). "A party cannot escape the application of
this rule by claiming ignorance of existing facts and circumstances, because the
law also provides that if such facts and circumstances could have been known to
the party through the exercise of ordinary care and reasonable diligence, the same
result follows." Id.

In the complaint, Rush asserted Stribble, while accompanied by several uniformed
Newberry County deputy sheriffs, approached him in his backyard, misidentified
him as Corey Pena, and advised him they had a warrant for Pena. Rush alleged he
submitted to a finger scan out of fear he would be taken into custody based on
Stribble's insistence that he was Corey Pena, the finger scan resulted in his arrest
for failure to appear at a proceeding in Florida, and he suffered pecuniary losses as
a result of the arrest. The alleged fraud on which Rush's action was based
concerned Stribble's claim of a valid warrant for Pena's apprehension.

On appeal, Rush argues to this court his action was timely because, as a result of
his incarceration 1 in Florida, he lacked access to the internet as well as research
materials on South Carolina law; therefore, his cause of action did not accrue until
the end of 2018, when he was able to ascertain that he bore no physical
resemblance to Pena. In his complaint, however, Rush averred he "demanded"
Stribble produce the warrant, to no avail. Moreover, as Rush himself
acknowledged, on the date of his arrest in 2015, he was aware of the possibility
that Stribble's claim about a warrant for Pena was a ruse; therefore, he had at that
time acquired knowledge of existing facts sufficient to put him on inquiry that, if
developed, could have disclosed Stribble's alleged fraud. See Burgess, 300 S.C. at
185, 386 S.E.2d at 800 ("[E]ither actual or constructive knowledge of facts or
circumstances, indicative of fraud, trigger a duty on the part of the aggrieved party
to exercise reasonable diligence in investigating and, ultimately, in pursuing a
claim arising therefrom."). Because Rush's arrest occurred in 2015 and he filed his
lawsuit in 2020, his action was untimely pursuant to section 15-3-530. 2

Rush also appeals the circuit court's determination that Stribble was not a proper
party pursuant to SCTCA, arguing Stribble's alleged misconduct was outside the
scope of his official duties. We decline to address this issue because our
determination that Rush's action was untimely under section 15-3-530 is sufficient
to support the circuit court's dismissal of the lawsuit regardless of whether Stribble
was properly named as defendant. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that when a prior issue
is dispositive of an appeal, the appellate court does not need to address any
remaining issues); Dwyer v. Tom Jenkins Realty, 289 S.C. 118, 120, 344 S.E.2d

1
According to Rush's appellant's brief, he was sentenced in 2017 and has remained
in the custody of the Florida Department of Corrections since that time.
2
Rush also argues he is entitled to equitable tolling of the statute of limitations
because of his incarcerated status and limited access to research materials, but did
not make this argument during the circuit court proceedings. We therefore hold
this issue is not preserved for appellate review. 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.").
886, 888 (Ct. App. 1986) ("Where a decision is based on two grounds, either of
which, independent of the other, is sufficient to support, it will not be reversed on
appeal because one of those grounds is erroneous." (quoting 5 Am. Jur.2d Appeal
& Error § 727 (1962))). 3

AFFIRMED. 4

GEATHERS, HEWITT, and VINSON, JJ., concur.

3
Rush also argues (1) Stribble failed to apply for a search warrant before entering
his yard, (2) Stribble lacked probable cause to search for a person of Rush's
description, (3) Rush could not have been mistaken for Corey Pena based on Pena's
description, and (4) the circuit court, in denying his request to proceed in forma
pauperis, discriminated against him. None of these issues were raised during the
circuit court proceedings; therefore, they are not preserved for appellate review.
See Staubes v.City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000)
("It is well-settled that an issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the trial court to be preserved for
appellate review.").
4
We decide this case without oral argument pursuant to Rule 215, SCACR.