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2010-UP-231 - Ervin v. Colleton County

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

Charles Ervin, Sr., Appellant,

v.

Colleton County, Respondent.


Appeal From Colleton County
 Perry M. Buckner, Circuit Court Judge
 Roger M. Young, Circuit Court Judge


Unpublished Opinion No. 2010-UP-231
Submitted March 1, 2010 – Filed April 5, 2010
Withdrawn, Substituted and Refiled April 13, 2010


AFFIRMED


James H. Moss, of Beaufort, for Appellant.

Marshall H. Waldron, Jr., of Beaufort, for Respondent.

PER CURIAM:  Charles Ervin appeals from Judge Buckner's order granting a directed verdict to Colleton County.  Judge Buckner based his ruling on Judge Young's previous order granting summary judgment to Colleton County as to its liability for any wrongful actions taken against Ervin by the Colleton County Sheriff and his deputies.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to whether Judge Young erred in granting partial summary judgment to Colleton County:  Law v. South Carolina Dept. of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006) ("In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions and to deny the motions where either the evidence yields more than one inference or its inference is in doubt."); Rule 56(c), SCRCP (providing a trial court may grant a motion for summary judgment only "if 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"); Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000) ("In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party."); Cone v. Nettles, 308 S.C. 109, 112, 417 S.E.2d 523, 525 (1992) (determining that in South Carolina, sheriffs and deputies are state, not county, officials because (1) the South Carolina constitution establishes the office of sheriff and the term of office; (2) the duties and compensation of sheriffs and deputies are set forth by the General Assembly; (3) their arrest powers are related to state offenses; and (4) the Governor of South Carolina has the authority to remove a sheriff for misconduct and fill the vacancy); S.C. Code Ann. §§ 23-11-10 and 23-13-10 (2007) (providing that the citizens elect the Sheriff, and the Sheriff is answerable for the neglect or misconduct in the office of any deputy).

2. As to whether Judge Young erred in granting summary judgment while Ervin's motion for leave to amend his complaint was still pending: Scott v. McCain, 272 S.C. 198, 202, 250 S.E.2d 118, 121 (1978) ("[A] defective complaint cannot be amended to state a new or different cause of action after the statute of limitations has run."); S.C. Code Ann. § 15-78-110 (2005) (providing "any action brought pursuant to [the South Carolina Tort Claims Act] is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered").

AFFIRMED.      

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


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