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2009-UP-258 - Howle v. Howle

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Phillip C. Howle, Sally Howle Ritchie, Miriam Howle Grover, Ken Howle, Members of the Howle and Sally Howle Ritchie, as Personal Representative of the Estate of Cleonita W. Howle, Appellants/Respondents,

v.

Leslie E. Howle, Respondent/Appellant.


Appeal From Horry County
 J. Stanton Cross, Jr., Master-in-Equity


Unpublished Opinion No.  2009-UP-258
Heard May 13, 2009 – Filed June 1, 2009


AFFIRMED


Kenneth E Sowell, of Anderson, for Appellant-Respondent.

Hugh L. Willcox, Jr. and Edward A. Love, both of Florence, for Respondent-Appellant.

PER CURIAM:  Phillip C. Howle, Sally Howle Ritchie, Mirian Howle, Ken Howle, and Sally Howle Ritchie, as personal representative of the estate of Cleonita W. Howle allege the trial court erred in: (1) finding Leslie Howle did not assume the mortgage on the Beach House and Plaintiffs were not entitled to have the mortgage reinstated and assigned to Plaintiffs; (2) finding the assumption was invalid because Carolina Bank had no knowledge of any type of assumption; (3) finding Darlington Fuel Company, Inc. was a necessary party to the action; (4) finding Plaintiffs were not entitled to judgment against Leslie Howle based on breach of contract; (5) finding the statute of limitations prohibited their breach of contract claim; and (6) allowing Leslie Howle to present evidence of setoff and payment although such was not pled in her counterclaim.  Leslie Howle cross appeals arguing the trial court erred in finding she was not entitled to an award based upon diminution in property value of the Beach House due to Phillip Howle's filing of a lis pendens. We affirm pursuant to Rule 220(b), SCACR, and the following authorities. 

1.  As to whether the trial court erred in (1) finding Leslie Howle did not assume the mortgage on the Beach House and Plaintiffs were not entitled to have the mortgage reinstated and assigned to Plaintiffs; (2) finding the assumption was invalid because Carolina Bank had no knowledge of any type of assumption; and (3) finding Darlington Fuel Company, Inc. was a necessary party to the action, we find these issues are abandoned.  See State v. Jones, 344 S.C. 48, 58-59, 543 S.E.2d 541, 546 (2001) (finding an issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority).    

2.  We hold the trial court did not err in finding Philip Howle's breach of contract claim was barred by the statute of limitations pursuant to: S.C. Code Ann. § 15-3-530 (2005) (providing a party must commence an action within three years of the date the cause of action arises); Martin v. Companion Healthcare Corp., 357 S.C. 570, 575, 593 S.E.2d 624, 627 (Ct. App. 2004) (finding the three-year statute of limitations "begins to run when the underlying cause of action reasonably ought to have been discovered"). 

3.  We find Philip Howle's argument that the trial court erred in relying on a three-year statute of limitations pursuant to section 15-3-530 of the South Carolina Code (2005) is not preserved for review.  See In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) ("An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court."). 

4.  We find Philip Howle's argument that the trial court erred to the extent its order was based on evidence of setoff and payment presented at trial is not preserved for our review because the trial court did not make a final ruling on this issue.  See S.C. Dept. of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007) (holding that in order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge). 

5.  We find Leslie Howle's cross appeal is not preserved for review.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding that when a trial court makes a general ruling on an issue, but does not address the specific argument raised by the appellant and the appellant does not make a motion to alter or amend pursuant to Rule 59(e), SCRCP, to obtain a ruling on the argument, the appellate court cannot consider the argument on appeal).   

AFFIRMED.

SHORT, WILLIAMS, and LOCKEMY, JJ., concur.