Howard v. Cartee ( 2011 )

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

Stacy W. Howard Appellant,

v.

Pamela O. Cartee, Respondent.

---

Appeal From Darlington County
Paul M. Burch, Circuit Court Judge

---

Unpublished Opinion No.   2011-UP-100
Submitted March1, 2011 – Filed March 14, 2011

---

AFFIRMED

---

Stacy W. Howard, pro se, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Warren V. Ganjehsani, all of Columbia, for Respondent.

PER CURIAM:  Stacy W. Howard appeals the circuit court's denial of his petition for a writ of mandamus and dismissal of his action, arguing: (1) he was denied due process when he was not served with notice of  Pamela O. Cartee's motion to dismiss; (2) Cartee's voluntary appearance in court by her counsel was equivalent to personal service of Howard's summons and complaint; (3) the circuit court erred in dismissing his complaint on the basis that his actions constituted an impermissible form of hybrid representation; (4) he was entitled to a copy of primary and backup tapes according to the Freedom of Information Act (FOIA) and Rule 607(i), SCACR; (5) Rule 607(i) directly conflicts with the legislative intent in sections 14-13-10 and 14-13-20 of the South Carolina Code (1977); (6) the circuit court erred in failing to rule on motions for recusal and change of venue; and (7) the circuit court erred in failing to rule on his Rule 59(e), SCRCP motion.  We affirm.[1] 

1.  As to whether the circuit court erred in denying Howard's request for tapes of his trial based on an impermissible form of hybrid representation:  At the time Howard filed his pro se complaint for the tapes of his trial, the Office of Appellate Defense had already been appointed to represent him for purposes of his direct appeal and had in fact already contacted Cartee regarding the errors in the trial transcript.  Thus, Howard made an invalid pro se request for the primary and backup copies of the trial tapes.  Because Howard was represented by counsel, any request for the trial tapes was required to be made by his counsel.  See State v. Stuckey, 333 S.C. 56, 58, 508 S.E.2d 564, 564 (1998) ("[Because] there is no right to hybrid representation, substantive documents filed [pro se] by a person represented by counsel are not accepted unless submitted by counsel.").[2]

2.  As to whether the circuit court erred in failing to rule on Howard's Rule 59(e), SCRCP motion:  Howard failed to comply with the requirements of Rule 59, SCRCP because he filed his motion on February 13, 2008, almost one month before the circuit court issued its final order on March 6, 2008.  See Rule 59(e), SCRCP ("A motion to alter or amend the judgment shall be served no later than 10 days after receipt of written notice of the entry of the order.").  Accordingly, the circuit court correctly declined to rule on Howard's Rule 59(e) motion. 

3.  As to Howard's remaining issues:  These issues are not preserved for appellate review.  See Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010) ("Issues and arguments are preserved for appellate review only when they are raised to and ruled on by the lower court.") (internal quotation marks omitted); Dixon v. Besco Engineering, Inc., 320 S.C. 174, 178, 463 S.E.2d 636, 638 (Ct. App. 1995) ("Issues on which the trial judge never ruled and which were not raised in a post-trial motion are not preserved for appeal."). 

AFFIRMED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.

---

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

[2] We decline to address whether Howard was entitled to a copy of the primary and backup tapes according to FOIA and Rule 607(i), SCACR because resolution of Howard's argument regarding hybrid representation is dispositive.  See Whiteside v. Cherokee Cnty. Sch. Dist. No. One, 311 S.C. 335, 340-41, 428 S.E.2d 886, 889 (1993) (finding the appellate court need not address a remaining issue when the resolution of a prior issue is dispositive); see also Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision, or judgment upon any ground(s) appearing in the Record on Appeal.").