Samuel v. Brown

• Court: Court of Appeals of South Carolina
• Decided: December 18, 2003
• Docket: 2003-UP-751
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Christina Samuel, Individually and as Parent, Guardian, and Next of Kin of Chynna Samuel Durant,        Appellant,

v.

Harvey Brown, M.D. and Professional Obstetrics and Gynecology, P.A.,        Respondents.

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Appeal From Darlington County
Sidney T. Floyd, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-751
Submitted October 15, 2003 – Filed December 18, 2003

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AFFIRMED

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James H. Dickey, of Atlanta, for Appellant.

David W. Overstreet Esquire, Robert H. Hood Esquire, Deborah Sheffield, of Charleston, for Respondents.

PER CURIAM:  In this action for medical malpractice, Christine Samuel, individually and as parent, guardian, and next of kin of Chynna Samuel Durant, appeals from the order of the trial court granting Harvey N. Brown, M.D. and Professional Obstetrics and Gynecology, P.A., summary judgment and dismissing her cause of action for failure to prosecute.  We affirm pursuant to Rule 220, SCACR and the following authorities: 

Issue I.:  Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991) (stating that once the party seeking summary judgment meets the initial burden of demonstrating the absence of a genuine issue of material fact, the opposing party must “‘do more than simply show that there is some metaphysical doubt as to the material facts’ but ‘must come forward with specific facts showing that there is a genuine issue for trial.’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986)) (emphasis in original); Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 254, 487 S.E.2d 596, 599 (1997) (stating that to sustain a cause of action in a medical malpractice case, the plaintiff must use expert testimony to establish both the standard of care and the defendant’s failure to conform to that standard unless the subject is a matter of common knowledge); Bayle v. South Carolina Dep’t of Transp., 344 S.C. 115, 128, 542 S.E.2d 736, 742 (Ct. App. 2001) (stating the trial court’s rulings in matters involving discovery will not be disturbed on appeal absent a clear showing of an abuse of discretion); Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) (nonmoving party must demonstrate that further discovery will likely uncover additional relevant evidence); In re Thames, 344 S.C. 564, 571, 544 S.E.2d 854, 857 (Ct. App. 2001) (stating appellant has the burden of convincing this court that the trial judge committed error); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating issue must have been raised to and ruled upon by the trial judge to be preserved for appellate review).

Issue II.:  Kennedy v. Bedenbaugh, 352 S.C. 56, 62, 572 S.E.2d 452, 455 (2002) (holding the court did not need to address petitioner’s argument that the additional grounds cited by the trial court for granting summary judgment were improper where court had concluded summary judgment was properly granted on another ground).

Issue III.:  Jackson v. Speed, 326 S.C. 289, 309, 486 S.E.2d 750, 760 (1997) (“A motion for continuance is within the sound discretion of the trial court and the ruling will not be reversed without a clear showing of abuse.”); Carlyle v. Tuomey Hosp., 305 S.C. 187, 407 S.E.2d 630 (1991) (stating proof that an error caused the appellant prejudice is a prerequisite to reversal based on error where the trial court’s discretion is involved).

Issue IV.:  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.”); McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 350, 479 S.E.2d 67, 78 (Ct. App. 1996) (“An appellant seeking reversal must show error and prejudice”); McCall v. Finley, 294 S.C. 1, 362 S.E.2d 26 (Ct. App. 1987) (stating appellate courts should recognize an overriding rule of civil procedure which says “whatever doesn’t make any difference, doesn’t matter”).

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.