THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ella R. Hall,        Appellant,

v.

Anne Middleton Bell, Esquire,        Respondent.

Appeal From Sumter County
L. Henry McKellar, Circuit Court Judge

Unpublished Opinion No. 2004-UP-008
Submitted October 6, 2003 – Filed January 14, 2004

AFFIRMED

Ella R. Hall, of Hartsville, Pro Se.

William C. Cleveland, of Charleston, for Respondent.

PER CURIAM:  Ella R. Hall appeals from the circuit court’s grant of summary judgment to defendant Anne M. Bell.  We affirm. [1]

FACTS

The chief complaint in this case centers upon Hall’s allegation that Bell committed legal malpractice in failing to file an action against Hall’s former employer Commander Nursing Home (“Commander”).  Hall became the subject of an investigation by the South Carolina Board of Nursing (the “Board”) when Commander notified the Board that it suspected Hall of diverting the drug Phenergan from the home.

Hall hired Bell to represent her in August 1997.  Bell admits Hall spoke with her about filing an action against Commander as well as defending Hall in front of the Board.  However, Bell maintains she informed Hall they should concentrate on the case before the Board first, as a determination by the Board that Hall did divert drugs from the home would render a subsequent suit against Commander as moot.  At no point did Bell agree to bring a suit against Commander on Hall’s behalf.  Hall does not dispute Bell provided such advice. 

Subsequently, Hall became dissatisfied with Bell’s representation.  After seeking other representation Hall terminated Bell’s employment in March 1998.  The Board subsequently dismissed the investigation into the Phenergan incident at Commander in Hall’s favor. 

After the Board’s investigation was dismissed, Hall filed suit against Bell alleging three causes of action and requesting $5.5 million dollars in damages. [2]   Hall later amended her complaint alleging two additional causes of action. 

Bell moved for summary judgment arguing the scope of her employment involved only representing Hall in front of the Board.  Additionally, Bell argued, even if a genuine issue of fact existed, at the time of Hall’s termination of her employment the statute of limitations had not elapsed and Hall had retained other counsel. 

The circuit court agreed and granted summary judgment in favor of Bell.  Hall now appeals.

STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.  Rule 56(c), SCRCP; South Carolina Prop. and Cas. Guar. Assoc. v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880, 883 (Ct.App. 2001).  To determine whether any material facts exist, the evidence and all inferences, which can be reasonably drawn therefrom, must be viewed in the light most favorable to the nonmoving party.  Id.  Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law.  Id.  An appellate court reviews the granting of summary judgment under the same standard applied by the trial court.  Id. 

LAW/ANALYSIS

Hall appeals from the circuit court’s grant of summary judgment and alleges thirteen instances of error in the trial judge’s ruling. The allegations of error will be grouped into two categories:  1) whether there are procedural irregularities in circuit court’s granting Bell’s summary judgment motion; and 2) the circuit court erred in granting summary judgment as there were genuine issues of material fact.

I.                  Procedural Irregularities

Hall asserts there were procedural irregularities with regard to the circuit court’s granting of summary judgment.  We will address each issue individually.

Hall first argues error because the judge failed to read the case file before conducting the hearing.  The record reveals the circuit court was familiar with the case and was able to conduct a hearing on the matter.  It is further apparent that any deficiency in knowledge of the facts of the case Hall may have observed at the hearing was cured by the circuit court’s well-reasoned order granting summary judgment.

Second, Hall argues the circuit court erred in granting Bell’s motion for summary judgment, although Bell had not yet filed her answer to the supplemental complaint.  Hall filed a supplemental complaint alleging two additional causes of action on May 23, 2001.  Bell received the complaint on May 25, 2001.  The summary judgment motion was heard on May 30, 2001.  The circuit court granted summary judgment on the following day.  Although nothing in the record reflects Hall had permission to amend her complaint, it is apparent from the order granting summary judgment the circuit court considered the supplemental complaint and viewed it as alleging two additional causes of action arising out of the same set of facts as the previous complaint.

Third, Hall again argues the circuit court judge failed to read the filings before reaching its decision.  The circuit court’s order states it reviewed the initial complaint, the supplemental complaint, and Bell’s answer.  Hall does not specify what matters are present in those filings that would warrant reversal of the circuit court.  Furthermore, Hall may not rest on the allegations in her pleadings to create a cause of action where those allegations are controverted by affidavits submitted by Bell.  Yarborough v. Rogers, 306 S.C. 260, 261, 411 S.E.2d 424 (1991).

Hall’s fourth argument rests upon the theory that the circuit court should not have viewed the supplemental complaint as amendments to the complaint.  The circuit court’s order states:  “Although the newly filed Complaint does not purport to amend the original complaint, the Court will liberally view the pleading as an amendment that adds two causes of action to the original complaint.”  By considering the causes of actions from the original and supplemental complaints the circuit court benefited Hall by searching the complaints to find a basis on which to support her suit.  The circuit court did not err in considering both the original and supplemental complaint.

Hall’s fifth argument is that Bell made numerous false and ambiguous statements in her submissions to the court.  Hall further alleges that Bell concealed evidence.  Even if we accept Hall’s interpretations of Bell’s submissions, it does not undermine the basis of the circuit court’s order on two essential facts: 1) that Bell did not agree to sue Commander on Hall’s behalf; and 2) Hall retained other counsel prior to the running of any statute of limitations on any viable claim. 

Absent Hall’s ability to show that Bell agreed to sue Commander but failed to do so before the statute of limitations expired she cannot maintain her action against Bell.  We find no procedural irregularity on the circuit court’s behalf.

II.               Genuine Issues of Material Fact

Hall first alleges there were material issues of fact whether Bell’s scope of representation was limited to representation before the Board.  We disagree.

It is clear from the record the circuit court was correct in concluding no issue of material fact existed over whether the scope of representation included Hall’s suit against Commander.  First, at the outset of Bell’s representation she had Hall prepare a summary of facts of her case.  Although the summary does contain a reference to [j1]  Hall’s desire to sue Commander, there is nothing in the record to deduce that Bell agreed to represent Hall in the matter. 

Second, the record demonstrates that Bell only agreed to represent Hall during the Board’s investigation.  Bell asserts, and is uncontradicted by the record, she informed Hall that suing Commander before obtaining a favorable ruling before the Board was not effective, as a negative ruling by the Board would render any subsequent suit moot.  Such statements make clear that Bell’s representation extended only to the Board investigation, at least until the conclusion of the case before the Board.

Third, Hall’s own affidavit fails to reveal testimony that Bell’s scope of representation extended beyond the Board.  Additionally, Hall’s own letter to Bell terminating her services states as one reason for her action Bell’s “lack of encouragement/support [for her] desire to file suit against Commander.”

Next, Hall asserts the Board’s dismissal of Hall’s case is clear evidence that Bell’s “‘Board of Nursing case’ was fictitious, misleading, unfounded, and meritless ... [such that] Hall’s time and money were spent in Bell’s pursuit of a case not in existence, while Hall’s lawsuit did not receive its proper attention.”  It is clear from the record that the case before the Board regarding the misappropriation of the Phenergan existed.  Finally, the Board’s investigation against Hall ended favorably for Hall.

Fourth, Hall asserts Bell was incompetent because she allowed the statute of limitations to expire before filing a suit against Commander.  Hall retained counsel to represent her before the statute of limitations expired with the only possible exception being applicable to a claim of racial discrimination.  Hall had 300 days to file a claim with the EEOC to allege racial discrimination in employment.  See Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 440 (4^th Cir. 1998).  Accepting Hall’s version of events, the statute of limitations began on July 30, 1997.  Bell was terminated by Hall and replaced by new counsel on March 12, 1998.  Therefore 225 days elapsed; the statute of limitations had not expired by the time Hall retained new counsel.  Although South Carolina courts have not addressed this issue, other jurisdictions have held an “attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and was replaced by other counsel before the statute ran of the client’s action.”  Knight v. Myers, 748 P.2d 896, 902 (Kan. 1998); see also Steketee v. Lintz, 694 P.2d 1153, 1159 (Cal. 1985); Harvey v. MacKay, 440 N.E.2d 1022, 1026 (Ill. 1982).  Accordingly, Bell is not liable for failing to file an action where she was replaced by another attorney before the statute of limitations expired. 

Finally, Hall asserts the court erred in granting summary judgment, as there were material issues of fact whether Bell violated the statute of fraud provisions.  As this issue was neither raised to nor ruled upon by the trial court it is not preserved for our review.  See South Carolina Dep’t of Social Servs. v. Father and Mother, 294 S.C. 518, 524, 366 S.E.2d 40, 43 fn. 22 (Ct.App. 1988) (issue which was not raised below cannot be considered on appeal). 

Even if this issue was preserved, Hall’s argument is meritless.  The failure to follow the statute of frauds does not create a cause of action in tort.  Instead, it provides that for certain types of agreements to be enforceable under contract law they must be in writing.  See, e.g., Young v. Indep. Pub. Co., 273 S.C. 107, 110, 254 S.E.2d 681, 682 (1979).

CONCLUSION

The scope of Bell’s legal representation was limited to the Board’s investigation.  Although Hall expressed interest in suing Commander, no evidence was presented proving Bell agreed to bring said suit.  Additionally, Bell did not suffer legal harm as she retained alternate counsel within the statute of limitations. Therefore the trial court did not err in granting summary judgment. 

AFFIRMED.

GOOLSBY, HUFF and BEATTY, JJ., concur.