Powell v. MUSC ( 2019 )

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
Jack Powell, Appellant,
v.
Medical University of South Carolina, Respondent.
Appellate Case No. 2015-001331
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Unpublished Opinion No. 2019-UP-377
Submitted September 12, 2019 – Filed December 11, 2019
AFFIRMED
Jack Powell, of Charleston, pro se.
M. Dawes Cooke, Jr., and John William Fletcher, both of
Barnwell Whaley Patterson & Helms, LLC, of
Charleston; and John Arthur Jones, of Gallivan, White &
Boyd, PA, of Charleston, for Respondent.
PER CURIAM: Jack Powell, pro se, appeals an order granting summary
judgment in favor of the Medical University of South Carolina (MUSC). On
appeal, Powell argues the circuit court erred in (1) failing to recognize his false
arrest conviction was reversed; (2) allowing MUSC's attorney to make
inflammatory and untruthful statements, and not allowing Powell to argue about
the untruths; (3) hearing the summary judgment motion before Powell received
discovery; (4) "overloading with too many motions" and making mistakes;1 (5) not
knowing MUSC's legal procedures; (6) not ruling on false arrest; (7) not stating in
its order that summary judgment was granted because Powell did not respond to
MUSC's memorandum in support of summary judgment; (8) stating Powell needed
an expert affidavit; (9) "repeatedly chastis[ing]" Powell at another hearing; and
(10) failing to recognize MUSC committed assault and battery, intentional
infliction of emotional distress, gross negligence, false arrest, and false
imprisonment. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:
1. The circuit court did not err in not recognizing Powell's trespassing conviction
was reversed and in granting MUSC summary judgment on Powell's false arrest
and false imprisonment claim. We construe Powell's May 2015 "Motion to Amend
Reconsideration" as a Rule 60(b), SCRCP, motion based on newly discovered
evidence. The circuit court did not abuse its discretion in denying the motion
because the reversal of Powell's trespassing conviction did not change the result of
the circuit court's order granting MUSC summary judgment on Powell's claims.
See Jamison v. Ford Motor Co., 373 S.C. 248, 271, 644 S.E.2d 755, 767 (Ct. App.
2007) ("Generally, the decision to grant a new trial under Rule 60(b)[, SCRCP,]
lies within the sound discretion of the circuit court."); id. ("The appellate court will
reverse a [circuit] court's decision regarding the grant or denial of a Rule 60(b)
motion only if it amounts to an abuse of discretion."); Rule 60(b)(2) (providing the
circuit court may relieve a party from a judgment based upon "newly discovered
evidence which by due diligence could not have been discovered in time to move
for a new trial under Rule 59(b)"); Jamison, 373 S.C. at 272, 644 S.E.2d at 767
("To obtain a new trial based on newly discovered evidence, a movant must
establish that the newly discovered evidence: (1) will probably change the result if
a new trial is granted; (2) has been discovered since the trial; (3) could not have
been discovered before the trial; (4) is material to the issue; and (5) is not merely
cumulative or impeaching."). The circuit court referenced Powell's trespassing
conviction when finding summary judgment was appropriate as to Powell's false
imprisonment claim.2 The reversal of Powell's trespassing conviction did not
1
This claim of error is against the clerk of court.
2
The circuit court did not rely on Powell's prior trespassing conviction when
granting MUSC summary judgment on Powell's claims of assault and battery,
gross negligence, intentional infliction of emotional distress, and slander; thus, the
reversal of that conviction did not impact those claims.
create an issue of material fact as to whether the officers had probable cause to
arrest Powell. See Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 329, 673 S.E.2d
801, 802 (2009) ("Summary judgment is appropriate where there is no genuine
issue of material fact and it is clear the moving party is entitled to a judgment as a
matter of law."); id. at 329-30, 673 S.E.2d at 802 ("In determining whether any
triable issues of fact exist, the evidence and all inferences which can be reasonably
drawn from the evidence must be viewed in the light most favorable to the
nonmoving party."); Law v. S.C. Dep't of Corr., 368 S.C. 424, 441, 629 S.E.2d
642, 651 (2006) ("Probable cause is defined as a good faith belief that a person is
guilty of a crime when this belief rests on such grounds as would induce an
ordinarily prudent and cautious man, under the circumstances, to believe
likewise."). Powell admitted in a deposition he was cursing and yelling at the
hospital staff. Thus, the officers had probable cause to arrest him, his arrest was
lawful, and Powell cannot prevail on a claim of false imprisonment. See id. at 440,
629 S.E.2d at 651 ("To prevail on a claim for false imprisonment, the plaintiff
must establish . . . the restraint was unlawful."); id. at 441, 629 S.E.2d at 651 ("The
fundamental issue in determining the lawfulness of an arrest is whether there was
probable cause to make the arrest."); id. ("Although the question of whether
probable cause exists is ordinarily a jury question, it may be decided as a matter of
law when the evidence yields but one conclusion."); S.C. Code Ann. § 16-17-530(2015) (providing it is a misdemeanor to conduct oneself "in a disorderly or
boisterous manner" or "use obscene or profane language" in a public place); State
v. Roper, 274 S.C. 14, 18, 260 S.E.2d 705, 707 (1979) (finding police had probable
cause to arrest the defendants for disorderly conduct when, "upon the police's
stopping them, [they] immediately jumped from the car, shouting profanities").
2. The circuit court did not err in granting MUSC summary judgment on Powell's
negligence claims. Powell's allegations of negligence by doctors and medical
personnel were allegations of medical negligence that required a medical affidavit.
See Jernigan v. King, 312 S.C. 331, 333, 440 S.E.2d 379, 381 (Ct. App. 1993) ("In
a medical malpractice action the plaintiff must establish by expert testimony both
the required standard of care and the defendant's failure to conform to the standard,
unless the subject matter lies within the ambit of common knowledge and
experience, so that no special learning is needed to evaluate the defendant's
conduct."). Powell did not submit an expert affidavit; thus, the circuit court
properly granted summary judgment on those claims. See id. at 334, 440 S.E.2d at
381 ("Thus, on a defendant's motion for summary judgment, there will usually be
no genuine issue of material fact unless the plaintiff presents expert testimony on
the standard of care and its breach by the defendant."). Powell's allegations of
negligence by the security guards and public safety officers relate to the manner in
which they chose to provide police protection. Thus, those claims are barred by
the South Carolina Tort Claims Act. See Huggins v. Metts, 371 S.C. 621, 624, 640
S.E.2d 465, 467 (Ct. App. 2006) (finding section 15-78-60(6) of the South
Carolina Code (2005) exempted police from liability for negligence "concerning
the methods which they choose to utilize to provide police protection"). Further,
Powell did not submit any affidavits or discovery to support his claims of
negligence; thus, the circuit court properly granted summary judgment. See Rule
56(e), SCRCP ("[A]n adverse party may not rest upon the mere allegations or
denials of his pleading [when defending against summary judgment], but his
response, by affidavits or as otherwise provided in this rule, must set forth specific
facts showing there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.").
3. The circuit court did not err in granting MUSC summary judgment on Powell's
assault and battery claim. See S.C. Code Ann. § 15-78-60(17) (2005) ("The
governmental entity is not liable for a loss resulting from . . . employee conduct
outside the scope of his official duties or which constitutes actual fraud, actual
malice, intent to harm, or a crime involving moral turpitude.").
4. The circuit court did not err in granting MUSC summary judgment on Powell's
claim of intentional infliction of emotional distress. See S.C. Code Ann.
§ 15-78-50(a) (2005) ("Any person who may suffer a loss proximately caused by a
tort of the State, an agency, a political subdivision, or a governmental entity, and
its employee acting within the scope of his official duty[,] may file a claim as
hereinafter provided."); S.C. Code Ann. § 15-78-30(f) (2005) ("'Loss' . . . does not
include the intentional infliction of emotional harm.").
5. The issues of whether the circuit court erred in (1) hearing the summary
judgment motion before Powell received discovery, (2) "overloading with too
many motions" and making scheduling mistakes, (3) not ruling on Powell's motion
to recuse Judge Dennis before ruling on his "motion to amend reconsideration,"
and (4) chastising Powell during another hearing are not preserved for this court's
review.3 See Doe v. S.B.M., 327 S.C. 352, 356, 488 S.E.2d 878, 880 (Ct. App.
1997) ("Objections not raised in the trial court cannot be relied on in the appellate
court."); id. ("A contemporaneous objection is required to properly preserve an
error for appellate review."); 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) ("It is well settled that an issue may
3
This section addresses arguments raised in support of Powell's third, fourth, and
ninth issues.
not be raised for the first time in a post-trial motion."); id. ("[I]t is a litigant's duty
to bring to the court's attention any perceived error, and the failure to do so
amounts to a waiver of the alleged error.").
6. The circuit court did not err by not stating in its order that it was granting
summary judgment due to Powell's failure to respond to MUSC's memorandum in
support of summary judgment. See Bowman v. Richland Mem'l Hosp., 335 S.C.
88, 91, 515 S.E.2d 259, 260 (Ct. App. 1999) ("An order is not final until it is
written and entered by the clerk of court."); id. ("Until an order is written and
entered by the clerk of court, the judge retains discretion to change his mind and
amend his ruling accordingly."); Bayne v. Bass, 302 S.C. 208, 210, 394 S.E.2d
726, 727 (Ct. App. 1990) (providing an oral ruling "is not a final ruling on the
merits nor is it binding on the parties until it has been reduced to writing, signed by
the [j]udge[,] and delivered for recordation").
7. Powell's arguments that the circuit court erred in (1) allowing MUSC to make
untruthful and inflammatory statements during the motion hearing, (2) not
knowing MUSC's procedures, and (3) not recognizing the untruths are without
merit. As the plaintiff in this action, Powell had the burden of submitting evidence
to support his pleadings. Because Powell did not submit evidence at the hearing on
MUSC's motion for summary judgment, the circuit court properly granted
summary judgment. See Rule 56(e) ("[A]n adverse party may not rest upon the
mere allegations or denials of his pleading [when defending against summary
judgment], but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing there is a genuine issue for trial. If he does
not so respond, summary judgment, if appropriate, shall be entered against him.").
Further, the circuit court did not abuse its discretion in declining to consider
evidence Powell submitted after the summary judgment hearing. Other than
evidence showing his trespassing conviction was reversed, any evidence Powell
attempted to submit with his motion for reconsideration and his motion to amend
reconsideration was not timely submitted and thus was properly not considered by
the circuit court. See Rule 56(c), SCRCP ("The adverse party [to a motion for
summary judgment] may serve opposing affidavits not later than two days before
the hearing."); Black v. Lexington Sch. Dist. No. 2, 327 S.C. 55, 60, 488 S.E.2d
327, 329 (1997) ("[T]he trial court may refuse to consider materials that were not
timely served such that the opposing party had no time to prepare a response.");
Spreeuw v. Barker, 385 S.C. 45, 68-69, 682 S.E.2d 843, 855 (Ct. App. 2009)
(finding it could not consider a document that was submitted to the family court
"only as an attachment to [the father's] Rule 59(e) motion").
AFFIRMED.4
LOCKEMY, C.J., and HUFF and HILL, JJ., concur.
4
We decide this case without oral argument pursuant to Rule 215, SCACR.