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
In The Court of Appeals
Russell Taylor: d/b/a Palmetto Steel Construction, and Dana Rawl, Respondents,
Master Construction Company, Inc., Appellant.
L. Casey Manning, Circuit Court Judge
Unpublished Opinion No.
Heard April 5, 2005 – Filed June 27, 2005
F. Barron Grier, III, of
West Columbia, for Appellant.
Daryl G. Hawkins and John F. Hardaway, both of
Columbia, for Respondents.
PER CURIAM: In this breach of contract action, Master Construction Company, Inc. appeals from the trial court’s order entering a verdict in favor of Russell Taylor, doing business as Palmetto Steele Construction, and Dana Rawl. Master Construction contends the trial court erred by failing to dismiss the case based on the statute of limitations, directing a verdict in favor of Taylor and Rawl, disallowing witness testimony, and prohibiting the amendment of Master Construction’s pleadings to add the defense of acceptance. We affirm.
This case arises from a contract
between Taylor and Master Construction. Rawl hired Taylor, a building
contractor, to construct a building on his property to be used as a second
home. In April 1998,
On May 5, 1998, the day after the
pad was built,
On April 8, 1999,
On September 12, 2002,
By order dated October 15, 2003,
Judge Reginald I. Lloyd denied Master Construction’s previous motion for
summary judgment, and the case proceeded to trial.style="mso-spacerun: yes;
mso-fareast-font-family: Times New Roman; mso-ansi-language: EN-US;
mso-fareast-language: EN-US; mso-bidi-language: AR-SA"> At the
trial, Master Construction again moved for summary judgment, but the motion was
Additionally, Master Construction proffered the testimony of Glen Walker,
the general manager of the company from which Master Construction purchased the
However, the trial court disallowed the witness on the basis
After both sides presented their cases to the jury, the trial court directed a verdict in favor of Taylor and Rawl on the breach of contract claim, finding there was no question of fact that the pad was defective and submitted the issue of damages to the jury. The jury returned a verdict for $52,000. Master Construction moved for a new trial nisi remittitur, a new trial, and a judgment notwithstanding the verdict, all of which were denied. This appeal follows.
I. Statute of Limitations
Master Construction argues the trial court erred in failing to dismiss the case because the applicable three-year statute of limitations had expired when Taylor and Rawl filed the amended complaint on September 12, 2002. We disagree.
A cause of action for breach of
contract must be filed within three years after the date the breach was or
should have been discovered. S.C. Code Ann. § 15-3-530(1) (2005); Maher
v. Tietex Corp., 331 S.C. 371, 376-77, 500 S.E.2d 204, 207 (Ct. App.
1998) (holding the discovery rule applies to breach of contract actions, and
pursuant to the discovery rule, the action accrues on the date the aggrieved
party knew or could have discovered the breach through the exercise of
reasonable diligence). In the instant case, the statute of limitations
began to run, at the latest, in July 1998.
Pursuant to Rule 15(c), SCRCP:
An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
(emphasis added). Therefore, a plaintiff may substitute a defendant, who was not named in the original pleading, after the statute of limitations has expired as long as certain requirements are met. In Jackson v. Doe, 342 S.C. 552, 558-59, 537 S.E.2d 567, 570 (Ct. App. 2000), this court held that the plain language of Rule 15(c), SCRCP, indicates that although amendments substituting a party relate back to the date of the original pleading, those that add a new party not named in the original pleading do not relate back, therefore additional parities must be added within the statute of limitations period. We note that the plain language of Rule 15 refers only to defendants, whereas the party joined in the instant case was a plaintiff; however, a plaintiff must also file an action within the three-year statute of limitations or the claim is barred. S.C. Code Ann. § 15-3-530(1) (2005). Regardless, assuming the rule that an amendment adding a party cannot be made after the statute of limitations expires applies to plaintiff, the trial court ordered Rawl joined as a party prior to the running of the statute of limitations, thus we find the statute of limitations does not bar the instant action.
Master Construction contends the amended complaint adding Rawl as a party constituted a re-filing of the cause of action because the case had been dismissed by Judge Lee’s order dated July 16, 2001. However, Judge Lee’s order dismissing the complaint was nullified by her subsequent order vacating that decision; therefore we address the remainder of the case as if the dismissal never occurred. Master Construction filed a notice of appeal designating it was appealing from the trial court’s order entering a verdict in favor of Taylor and Rawl; however, it did not specify it was appealing from Judge Lee’s order. Because Master Construction failed to designate it was appealing from Judge Lee’s order dated October 16, 2003, which vacated the earlier order dismissing the action and restored the case to the active roster, is the law of the case. Toler’s Cove Homeowners Ass’n, Inc. v. Trident Constr. Co., Inc., 355 S.C. 605, 610, 586 S.E.2d 581, 584 (2003) (holding an unappealed order becomes the law of the case).
II. Witness Testimony
Master Construction argues the trial court erred by refusing to allow its witness to testify. We disagree.
The decision to admit or exclude evidence is within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion. Gamble v. Int’l Paper Realty Corp. of South Carolina, 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996). “Generally, there is no abuse of discretion where the excluded testimony is merely cumulative of other evidence proffered to the jury.” Commerce Center of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct. App. 2001).
Master Construction listed Walker as a fact witness prior to trial and indicated that he would testify regarding the contract. During the proffer, Walker testified that Master Construction ordered 3,000 PSI concrete. However, Walker also gave highly technical expert testimony, which the trial court excluded because Walker could not be qualified as an expert witness. Assuming the trial court properly excluded Walker’s testimony, there was no abuse of discretion. J. Eddie Fulmer, owner of Master Construction, also testified he ordered 3,000 PSI concrete from Walker and Master Construction’s proffer indicated the only non-expert testimony Walker would give regarded Master Construction’s order. Therefore, because Walker’s testimony was merely cumulative to other admitted testimony, we find no basis for reversal.
III. Directed Verdict
Master Construction argues the trial court erred in directing a verdict in favor of Taylor and Rawl on the breach of contract claim. We disagree.
In ruling on a motion for directed verdict, a court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party. Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 476, 514 S.E.2d 126, 130 (1999). When the evidence yields only one inference, a directed verdict in favor of the moving party is proper. Id.
Viewing the evidence in the light most favorable to Master Construction, we find no error in the trial court’s decision to direct a verdict on the breach of contract claim. Uncontested evidence indicated Master Construction breached the contract with Taylor. The contract stated that the pad would be four inches thick with a strength of “3000 PSI with wire reinforcing,” and the work would be “completed in a substantial workmanlike manner.” In his testimony, Fulmer stated he agreed the pad was not 3,000 PSI, the pad needed to be fixed, and he “would not want it the way it was.” Additionally, G. Allen Moore, an expert witness, testified that testing on the pad showed it was not four inches thick and it did not test at 3,000 PSI. Master Construction contends Walker’s testimony would have countered Allen’s testimony; however, Walker only testified in the proffer that Master Construction ordered 3,000 PSI concrete. Walker did not testify that the finished pad had a strength of 3,000 PSI, as required by the contract. Because Master Construction offered no evidence to contradict the assertion that the pad did not test at 3,000 PSI, we find Master Construction breached the contract as a matter of law.
IV. Defense of Acceptance
Master Construction argues the trial court erred in denying its motion to amend the pleadings to include the defense of acceptance. We find the argument has not been properly preserved.
An issue must be raised and ruled upon by the trial judge in order to be preserved for appellate review. Talley v. South Carolina Higher Educ. Tuition Grants Comm., 289 S.C. 483, 487, 347 S.E.2d 99, 101 (1986). Master Construction argues it moved to amend its pleadings to include the defense of acceptance at the end of the trial; however, our review of the record indicates Master Construction’s attorney made only a general motion to “renew my motion under 16(b) (sic) to amend the pleadings to conform to the evidence,” which lacked any specific reference to the defense of acceptance. In Master Construction’s only other Rule 15(b) motion, Master Construction asked to include the defenses of waiver and estoppel. We can find no instance where Master Construction raised the defense of acceptance to the trial court. Because arguments raised for the first time on appeal are not preserved for our review, we decline to consider the issue.
ANDERSON, BEATTY, and SHORT, JJ., concur.