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2011-UP-447 - Johnson v. Hall

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

Dr. Brad R. Johnson, Appellant,

v.

Lewis W. Hall, Lewis V. Hall, L.W. Hall Enterprises, LLC, and Cold Air A/C Service, Inc., Respondents.


Appeal From Horry County
 J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2011-UP-447
Submitted October 1, 2011 – Filed October 11, 2011   


AFFIRMED


Stuart M. Axelrod, of Myrtle Beach, for Appellant.

Brent M. Boyd, of Columbia; F. Truett Nettles, II, of Charleston; G. Michael Smith, of Conway; and Jay R. Lee, of Florence; for Respondents.

PER CURIAM:  Dr. Brad R. Johnson appeals the trial court's denial of his motion for a continuance and his motion for a new trial in his civil suit against Lewis W. Hall, Lewis V. Hall, L.W. Hall Enterprises, LLC, and Cold Air A/C Service, Inc.  On appeal, Johnson argues the trial court's denial of his written, post-trial motion for a continuance and his motion for a new trial violated his rights pursuant to Rule 40(b), SCRCP, the United States Constitution, and the South Carolina Constitution.[1]  We affirm[2]  pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Wayne Smith Constr. Co., Inc. v. Wolman, Duberstein, & Thompson, 294 S.C. 140, 143, 363 S.E.2d 115, 117 (Ct. App. 1987) (finding the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion); Austin v. Stokes-Craven Holding Corp.,  387 S.C. 22, 49, 691 S.E.2d 135, 149 (2010) ("Whether to grant a new trial is a matter within the discretion of the trial [court], and this decision will not be disturbed on appeal unless it is unsupported by the evidence or is controlled by an error of law."); Rule 40(b), SCRCP (providing "no action may be called for trial until 180 days after service of the last pleading which adds a new party to the action, unless all parties consent in writing"); Paschal v. Causey,  309 S.C. 206, 209, 420 S.E.2d 863, 865 (Ct. App. 1992) (finding the 180-day period is "a procedural right" that "provides parties a period of time to prepare the case" and noting the right may be waived); Faith Holiness Church v. Church of God at Scranton,  282 S.C. 487, 489, 319 S.E.2d 348, 349 (Ct. App. 1984) ("[A] party who fails to object to the trial of a case and affirmatively agrees to its trial at a designated time cannot later assert that the trial court erred in trying the case before the close of the statutory period.").

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 


[1] We decline to address Johnson's arguments concerning the constitutional violations.  These issues are not preserved for our review because Johnson did not raise these issues to the trial court.  See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007) (finding an issue must be raised to and ruled upon by the trial court in order to be preserved for appellate review). 

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