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2005-UP-424 - Babb v. Scott

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

David A. Babb,        Appellant,

v.

Bettie Ann Scott, Pam LaHay-Orr, Linda Cancel, Laurens County Arts Council, and Todd Alexander,        Defendants,

Of Whom Bettie Ann Scott is        Respondent.


Appeal From Laurens County
James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No.   2005-UP-424
Submitted June 1, 2005 – Filed June 29, 2005


AFFIRMED


David A. Babb, of Laurens, for Appellant.

James E. Bryan, Jr, of Laurens, for Respondent.

PER CURIAM: David Babb appeals an order permanently restraining him from signing and issuing subpoenas himself and temporarily restraining him from having the clerk issue subpoenas on his behalf and from contacting Bettie Ann Scott and her employer.  We affirm.[1]

Babb, representing himself, brought this action against his former paramour, Scott, and others.  In his voluminous complaint, Babb alleged that during their relationship he rendered a nude painting of Scott, which she took after their relationship ended.  He also alleged Scott, who is an elementary school art teacher, made comments to others in the arts community about Babb that damaged his reputation and that she spread a sexually transmitted disease to him.  In the process of pursuing the suit, Babb personally signed and issued subpoenas to Scott’s employer, banker, and doctor seeking documents. 

Scott alleged these subpoenas were unduly burdensome and meant solely to harass, embarrass, and humiliate her.  She asked the court to quash the subpoenas.  Additionally, in her answer to the complaint, she asked for a restraining order to prevent Babb from coming about, contacting, or harassing her.  She filed a petition seeking a restraining order restraining Babb from coming about and harassing her and “from indirectly harassing her by sending out invalid subpoenas and requesting irrelevant material from persons and from sending printed material concerning her to her employer and to other people she is connected with in an attempt to humiliate and embarrass her.” 

After a hearing, the trial court issued an order temporarily and permanently restraining Babb from issuing and signing subpoenas on his own behalf, pursuant to Rule 45, SCRCP.  The court ordered Babb was temporarily restrained from having the clerk issue subpoenas on his behalf until his deposition is taken.  It also restrained Babb from harassing, coming near Scott, or contacting her employer until the deposition is taken.  Babb appeals. 

LAW AND DISCUSSION

1.     Appealability

We first question whether the trial court’s order is immediately appealable.  A grant of an injunction is immediately appealable.  See S.C. Code Ann. § 14-3-330(4) (Supp. 2004).  However, discovery orders are interlocutory and not immediately appealableFlagstar Corp. v. Royal Surplus Lines, 341 S.C. 68, 73, 533 S.E.2d 331, 334 (2000) (stating discovery orders are not directly appealable); Lowndes Products, Inc. v. Brower, 262 S.C. 431, 433, 205 S.E.2d 184, 185 (1974) (“[O]rdinarily, an order denying or compelling discovery is not directly appealable”).  The trial court permanently restrained Babb from issuing and signing subpoenas on his own behalf and temporarily restrained him from having the clerk issue subpoenas for him until his deposition was taken.  Additionally, the court “restrained [Babb] from harassing and coming about Defendant, Bettie Anne (sic) Scott and from contacting her employer, pending [the] taking of his deposition.”  As the trial court couched its order in terms of granting injunctive relief, we will treat the appeal as one from an order granting an injunction.  Thus, we find the trial court’s order is immediately appealable. 

2.     Notice

Babb asserts the trial court erred in holding a hearing for injunctive relief because he was not provided adequate notice of the hearing.  We disagree.

At the hearing, Babb objected stating:  “I need a continuance for preparing the documents to hand over to the court.  I never received notice from the clerk of court’s office.  I only received notice from him about four days ago---.”

The court responded:  “As long as you get notice, you were served with that notice, that’s all the law requires.” 

The court did not address the issue of notice in its order and Babb failed to file a Rule 59, SCRCP, motion seeking a ruling on this issue.  Accordingly, it is not preserved.  Summer v. Carpenter, 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997) (stating that where trial judge did not rule on issue at trial and party did not make a Rule 59, SCRCP, motion for a ruling, issue is not preserved for appellate review).

Even if we were to consider the court’s remarks on the record as a ruling, we find the issue of the timeliness of the notice is not preserved as the court only addressed the issue of the notice coming from Scott’s counsel rather than the clerk’s office.  See 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.”).

We find no merit to Babb’s contention that the notice of the hearing was inadequate because it was provided to him by Scott’s counsel rather than the clerk’s office.  Rule 65 (a), SCRCP, only provides an adverse party must be given notice before the court may issue a temporary injunction.  The rule does not specify that the notice must come directly from the clerk’s office.  Here, Scott filed her motion for an injunction and notice of hearing on the motion with the clerk of court’s office and served the documents on Babb.  We find no error in the trial court’s determination that this method provided Babb with adequate notice of the hearing. 

3.     Injunction

Babb argues the trial court erred in granting Scott injunctive relief and in suspending his subpoenas.  We disagree. 

The granting of an injunction is discretionary and the appellate court will not disturb the conclusions of the trial court unless there has been an abuse of discretion showing the order is clearly erroneous.  Gilley v. Gilley, 327 S.C. 8, 12, 488 S.E.2d 310, 312 (1997).  Similarly, “[t]he rulings of a trial judge in matters involving discovery will not be disturbed on appeal absent a clear showing of an abuse of discretion.”  Bayle v. South Carolina Dep’t of Transp., 344 S.C. 115, 128-29, 542 S.E.2d 736, 742-43 (Ct.App.2001).  An abuse of discretion occurs when the trial judge’s ruling is based upon an error of law or, when based on factual conclusions, is without evidentiary support.  An abuse of discretion occurs when the trial judge’s ruling is based upon an error of law or, when based on factual conclusions, is without evidentiary support.  Id.

It is uncontested that Babb issued subpoenas signed by him, rather than having them signed and issued by the Clerk of Court and thus was in violation of Rule 45, SCRCP.[2]  Thus, we find no error in the trial court ordering that he be temporarily and permanently restrained from issuing and signing subpoenas on his own behalf. 

We also find no abuse of discretion in the trial court’s order restraining Babb from having the clerk issue further subpoenas on his behalf, harassing Scott, and contacting her employer until after his deposition is taken. 

As the trial court found:

It is  . . . evident that [Babb] had contact with [Scott’s] employer, which could affect her job.

The parties acknowledge that there is scheduled for July 15, 2004, a deposition of [Babb] after which time the issues can hopefully be narrowed and more clearly stated.

This Court finds that the voluminous Complaint in this matter makes it difficult to determine what the issues are.  Further, [Babb] informed the Court at the motion hearing that he was filing and Amended Complaint, although there is no order permitting said amendment. 

The trial court did not permanently prohibit Babb from having the clerk issue subpoenas on his behalf in this litigation.  Rather, the court merely restrained him doing so until after his deposition in an attempt to have Babb’s claims clarified so that the court could better determine whether the information Babb sought, which was of a highly personal nature, was relevant to his claims and thus properly discoverable.  We find no abuse of discretion in this action. 

Babb argues the trial court erred in granting the temporary injunction because an adequate remedy of law exists.  He also contends the trial court erred in granting the temporary injunction without requesting the undertaking of a bond.  The trial court addressed neither of these issues in its order and Babb failed to file a Rule 59, SCRCP motion requesting the court rule on them.  Accordingly, we find these issues are not preserved for our review.  See Summer v. Carpenter, 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997) (stating that where trial judge did not rule on issue at trial and party did not make a Rule 59, SCRCP, motion for a ruling, issue is not preserved for appellate review).

CONCLUSION

For the reasons discussed above, the trial court’s order is

AFFIRMED.

GOOLSBY, HUFF, and KITTREDGE, JJ., concur. 


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

[2] Rule 45, SCRCP provides subpoenas shall be signed and issued by the clerk of court or by an attorney as an officer of the court.