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2009-UP-110 - Jennings v. Little Italy Pizzeria

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

Robert Paul Jennings, Appellant

v.

Little Italy Pizzeria, Respondent.


Appeal from McCormick County
 J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2009-UP-110
Submitted March 2, 2009 – Filed March 3, 2009  


AFFIRMED IN PART, REVERSED IN PART


John Erick Sward, of McCormick, for Appellant.

W. Greg Seigler, of McCormick, for Respondent.

PER CURIAMRobert Paul Jennings brought this action against Little Italy Pizzeria in magistrate court alleging perjury and harassment.  In its answer and counterclaim, Little Italy moved to dismiss Jennings's complaint pursuant to Rule 12(b)(6), moved for summary judgment, and requested attorney's fees.  The magistrate court granted summary judgment, awarded Little Italy attorney's fees, and imposed a restraining order.  The circuit court affirmed.  This appeal followed.  We affirm the entry of summary judgment and the issuance of the restraining order, but reverse the award of attorney's fees pursuant to Rule 220(b), SCACR, and the following authorities. [1]

1. As to the entry of summary judgment: S.C. Code Ann. § 16-9-10 (Supp. 2008) (providing that perjury is a criminal offense); Rule 56(c), SCRCP (stating summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"); Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004) ("On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the appellant, the non-moving party below."); State v. Serrette, 375 S.C. 650, 652, 654 S.E.2d 554, 555 (Ct. App. 2007) (stating the burden is on the appellant to provide an appellate court with an adequate record for review).

2. As to the issuance of the restraining order: Patterson v. Reid, 318 S.C. 183, 185, 456 S.E.2d 436, 437 (Ct. App. 1995) ("A party cannot for the first time raise an issue by way of a Rule 59(e) motion which could have been raised at trial."). 

3. As to the award of attorney's fees: Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) (stating attorney's fees are generally not recoverable unless authorized by contract or statute); Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 176, 557 S.E.2d 708, 710 (Ct. App. 2001) (citing Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997)) ("In South Carolina, the authority to award attorney's fees can come only from a statute or be provided for in the language of a contract. There is no common law right to recover attorney's fees.").  

AFFIRMED IN PART AND REVERSED IN PART.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.


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