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2005-UP-128 - Discount Auto Center v. Jonas

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(D)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Discount Auto Center,        Respondent,

v.

Nancy D. Jonas,        Appellant


Appeal From Beaufort County
Curtis L. Coltrane, Special Circuit Judge


Unpublished Opinion No. 2005-UP-128
Submitted January 1, 2005 – Filed February 18, 2005


AFFIRMED


Nancy D. Jonas, of Beaufort, for Appellant.

James A. Grimsley, III and Ralph E. Tupper, both of Beaufort, for Respondent.

PER CURIAM:  Nancy Jonas appeals a circuit order denying her motion to dismiss.  We affirm. [1]

FACTS

In January 2003, Jonas filed a motion to dismiss in the Beaufort County Circuit Court, apparently with the intention of having a judgment entered against her in 1996 dismissed.  A hearing on the motion was scheduled for 10 a.m. on September 15, 2003.  Jonas was advised of the date and time of the hearing, and informed the court that she was ready to proceed.

The hearing was called at the scheduled time, but Jonas was not present.  The court placed a call to her residence and, after failing to reach her, left a message reminding her of the hearing.  As of 10:30 a.m., Jonas had still not appeared.  The circuit court denied the motion for lack of prosecution and ordered the “case ended.”

After contact from Jonas later that afternoon, the circuit court allowed her to file a motion to reconsider the denial of her motion.  Following reconsideration, the circuit court again denied Jonas’s motion to dismiss.  This appeal followed.

ANALYSIS

Jonas argues the trial court erred in denying her motion due to, among other things, a vast conspiracy of corruption and collusion involving this state’s circuit and appellate courts and Discount Auto Center.  We disagree.

As Jonas’s present appeal and underlying motion attempt to retry issues previously resolved and not properly before the circuit court, we briefly re-cap this case’s procedural history.  In 1996, Discount Auto Center obtained a judgment against Jonas in magistrate’s court for nonpayment of a bill arising from work done to her vehicle.  In 1997, Jonas appealed the judgment to the circuit court, which affirmed the magistrate’s decision.  She then appealed the circuit court’s decision to this court.  Her appeal was dismissed as untimely.  This court did, however, grant Jonas leave to petition the trial court for relief from judgment pursuant to Rule 60, SCRCP.  Jonas filed this motion in the magistrate’s court, but specifically requested in the petition that the motion not be decided until future matters concerning her appeal were resolved.  Following the resolution of various motions regarding her appeal in this court (e.g. a petition to reinstate), a writ of certiorari was filed with the state supreme court.  This petition was denied in September 1998.  Following this court’s issuance of remittitur, Jonas filed a motion in the state supreme court to recall the remittitur.  This motion was likewise denied.  She then appealed to the United States Supreme Court, which finally dismissed her case on December 3, 1999.

More than three years after the United States Supreme Court dismissed her appeal, Jonas filed the present motion, styled oddly as a “motion to dismiss.”  Nevertheless, a hearing was scheduled on the matter.  Jonas was properly notified, but did not appear for the hearing.

A trial judge possesses the inherent power to dismiss actions sua sponte for a party’s failure to prosecute with due diligence.  Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 211-212, 493 S.E.2d 826, 832 (1997); Small v. Mungo, 254 S.C. 438, 442-443, 175 S.E.2d 802, 803-804 (1970).  On appeal, Jonas raises several matters regarding the substance of her long-resolved case, but only addresses her absence from the hearing by vaguely referencing some alleged filings with our state’s supreme court.  The only evidence in the record of any attempted availment of our supreme court’s original jurisdiction is dated January 1999, more than three years prior to the scheduled hearing.  As Jonas is challenging the trial court’s denial of her motion, she bears the burden on appeal of producing a record sufficient to illustrate the alleged error.  See McElveen v. McElveen, 332 S.C. 583, 601 n.4, 506 S.E.2d 1, 10 n.4 (Ct. App. 1998).  “This court will not consider facts that do not appear in the transcript of record.”  Windham v. Honeycutt, 290 S.C. 60, 64, 348 S.E.2d 185, 187 (Ct. App. 1986).  

Because we find no evidence supporting Jonas’s claim that her absence from the hearing was justified, the circuit court’s denial of her motion to dismiss is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.


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