Carroll v. Anderson Brothers Bank

• Court: Court of Appeals of South Carolina
• Decided: October 11, 2011
• Docket: 2011-UP-437
• Status: Unpublished

Opinion

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

Leila Miriam Carroll, Appellant,

v.

Anderson Brothers Bank, Respondent.

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Appeal From Horry County
Steven H. John, Circuit Court Judge

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Unpublished Opinion No.  2011-UP-437 
Submitted October 1, 2011 – Filed October 11, 2011

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AFFIRMED

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Leila Miriam Carroll, pro se, of Waxhaw, North Carolina.

Jon Rene Josey, of Florence, for Respondent.

PER CURIAM: Leila Miriam Carroll appeals the trial court's order dismissing her breach of contract and breach of fiduciary duty claims against Anderson Brothers Bank (the Bank) based on lack of standing.  She argues the trial court erred in (1) considering the Bank's argument concerning standing because it was not pled in the Bank's answer and (2) finding she lacked standing.[1]  We affirm[2] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the trial court erred in considering the Bank's argument concerning standing because it was not pled in the Bank's answer:  Grant v. S.C. Coastal Council, 319 S.C. 348, 356, 461 S.E.2d 388, 392 (1995) (finding a due process claim must be raised to and ruled upon by the trial court in order to be preserved for appellate review); Higgins v. Med. Univ. of S.C.,  326 S.C. 592, 601, 486 S.E.2d 269, 274 (Ct. App. 1997) (finding an issue is not preserved for review when the appellants failed to object at the hearing and did not bring the issue to the trial court's attention).

2.  As to whether the trial court erred in finding Carroll lacked standing:  Chastain v. Hiltabidle,   381 S.C. 508, 514-15, 673 S.E.2d 826, 829 (Ct. App. 2009) ("It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court."); Hickman v. Hickman,  301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not."). 

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.

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[1] We find the Bank's argument that the notice of appeal was untimely and insufficient is without merit.  Although Carroll did not mention the October 2009 order in her notice of appeal, she did attach both the original order and the order denying her Rule 59(e), SCRCP, motion to her notice of appeal. See Weatherford v. Price, 340 S.C. 572, 577-78, 532 S.E.2d 310, 313 (Ct. App. 2000) (finding the clerical error of not referring to the trial court's original order in the notice of appeal did not merit a dismissal of the appeal because the order was attached to the notice of appeal).

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