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2011-UP-564 - Pryor v. Portnoy

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

Jerry C. Pryor, Appellant,

v.

William Portnoy and Charleston Aluminum, LLC, Respondents.


Appeal From Calhoun County
James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-564  
Heard September 14, 2011 – Filed December 13, 2011


AFFIRMED


Ammon Tice Lesher, of Greenville and D. Reece Williams, III, of Columbia, for Appellant.

Clay Robinson and R. Geoffrey Levy, both of Columbia, for Respondents.

PER CURIAM: Jerry Pryor appeals the trial court's order granting summary judgment to William Portnoy and Charleston Aluminum, LLC., (collectively Respondents) in which the court held Pryor's claims were barred by the statute of limitations. 

1) As to Pryor's argument Respondents' failure to establish the date of execution for the Charleston Aluminum Trading Company Operating Agreement creates a genuine issue of material fact, we find this issue was neither raised to nor ruled on by the trial court.  Accordingly, it is not preserved.  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."); Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding that where a trial court does not explicitly rule on an argument raised, and appellant makes no Rule 59(e) motion to obtain a ruling, the appellate court may not address the issue).

2) As to Pryor's argument the trial court failed to properly apply the scintilla of evidence rule and view the evidence and draw all inferences therefrom in the light most favorable to Pryor, we find no error in the trial court's ruling. 

The record contains notes from Pryor's attorney and email correspondence between Pryor and his attorney indicating that in late March and early April of 2004, Pryor and the attorney discussed how he had been replaced at Charleston Aluminum and the business had undergone a reinvention "probably to exclude him."  In his deposition, Pryor admitted the discussions were based upon his belief he had been wrongfully deprived of his ownership interest in Charleston Aluminum. 

Pryor claimed in an affidavit he first became aware of the Operating Agreement for Charleston Aluminum, which excluded his ownership interest, in June, 2006.  He stated, "At no point prior to June 2006, did I engage in any discussions with my attorneys or anyone else about a possible cause of action against William Portnoy or Charleston Aluminum for recovery of my ownership interest in Charleston Aluminum."  "[A] court may disregard a subsequent affidavit as a 'sham,' that is, as not creating an issue of fact for purposes of summary judgment, by submitting the subsequent affidavit to contradict that party's own prior sworn statement."  Cothran v. Brown, 357 S.C. 210, 218, 592 S.E.2d 629, 633 (2004).  Furthermore, the statute of limitations began to run when Pryor became aware he had been wrongfully deprived of his ownership interest in Charleston Aluminum even if he and his attorney did not discuss possible causes of action against Respondents for recovery of his ownership interest in Charleston Aluminum at that time.  See Epstein v. Brown, 363 S.C. 372, 376, 610 S.E.2d 816, 818 (2005) (stating the statute begins to run at the point of discovery of facts and not when advice of counsel is sought or a full-blown theory of recovery is developed). 

Pryor also argues his April, 2004 discussions with his attorney did not trigger the running of the statute of limitations given the lack of evidence establishing Pryor's claims actually existed at that time.  This argument is the same as his first issue.  As stated above, Pryor did not raise this argument to the trial court.  Accordingly, it is not preserved. 

AFFIRMED.

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