Johnson v. Hall

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

Dr. Brad R.
Johnson, Appellant,

v.

Lewis W. Hall,
Lewis V. Hall, L.W. Hall Enterprises, LLC, and Cold Air A/C Service, Inc., Respondents.

Appeal From Horry County

 J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2011-UP-447

Submitted October 1, 2011 – Filed October
11, 2011   

AFFIRMED

Stuart M. Axelrod, of Myrtle Beach, for
Appellant.

Brent M. Boyd, of Columbia; F. Truett
Nettles, II, of Charleston; G. Michael Smith, of Conway; and Jay R. Lee, of
Florence; for Respondents.

PER CURIAM:  Dr. Brad R. Johnson appeals the trial court's
denial of his motion for a continuance and his motion for a new trial in his civil
suit against Lewis W. Hall, Lewis V.
Hall, L.W. Hall Enterprises, LLC, and Cold Air A/C Service, Inc.  On appeal, Johnson
argues the trial court's denial of his written, post-trial motion for a
continuance and his motion for a new trial violated his rights pursuant to Rule
40(b), SCRCP, the United States Constitution, and the South Carolina
Constitution.[1] 
We affirm[2] 
pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Wayne
Smith Constr. Co., Inc. v. Wolman, Duberstein, & Thompson, 294 S.C.
140, 143, 363 S.E.2d 115, 117 (Ct. App. 1987) (finding the decision to
grant or deny a motion for a continuance is within the sound discretion of the
trial court and its decision will not be disturbed on appeal absent a showing
of an abuse of discretion); Austin v. Stokes-Craven Holding Corp., 
387 S.C. 22, 49, 691 S.E.2d 135, 149 (2010) ("Whether to grant a new
trial is a matter within the discretion of the trial [court], and this decision
will not be disturbed on appeal unless it is unsupported by the evidence or is
controlled by an error of law."); Rule 40(b), SCRCP (providing "no
action may be called for trial until 180 days after service of the last
pleading which adds a new party to the action, unless all parties consent in
writing"); Paschal v. Causey,  309 S.C. 206, 209, 420 S.E.2d
863, 865 (Ct. App. 1992) (finding the 180-day period is "a procedural
right" that "provides parties a period of time to prepare the case"
and noting the right may be waived); Faith Holiness Church v. Church of God
at Scranton,  282 S.C. 487, 489, 319 S.E.2d 348, 349 (Ct. App.
1984) ("[A] party who fails to object to the trial of a case and
affirmatively agrees to its trial at a designated time cannot later assert that
the trial court erred in trying the case before the close of the statutory
period.").

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 

[1] We decline to address Johnson's arguments concerning
the constitutional violations.  These issues are not preserved for our review
because Johnson did not raise these issues to the trial court.  See S.C.
Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641
S.E.2d 903, 907 (2007) (finding an issue must be raised to and ruled upon by
the trial court in order to be preserved for appellate review). 

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