Arthur v. Sexton Dental Clinic, No. 4103.

CourtCourt of Appeals of South Carolina
Writing for the CourtBeatty
Citation628 S.E.2d 894
PartiesEllis ARTHUR and Barbara Arthur as Wife, next friend, and companion, Appellants, v. SEXTON DENTAL CLINIC, and Leigh Westraad and Lisa Ann Eagerton, as personal representatives of the Estate of Dr. H.L. Eagerton, Jr. and his associates A-Z; SC JUA, Respondents.
Decision Date10 April 2006
Docket NumberNo. 4103.
628 S.E.2d 894
Ellis ARTHUR and Barbara Arthur as Wife, next friend, and companion, Appellants,
v.
SEXTON DENTAL CLINIC, and Leigh Westraad and Lisa Ann Eagerton, as personal representatives of the Estate of Dr. H.L. Eagerton, Jr. and his associates A-Z; SC JUA, Respondents.
No. 4103.
Court of Appeals of South Carolina.
Heard September 13, 2005.
Decided April 10, 2006.

Page 895

COPYRIGHT MATERIAL OMITTED

Page 896

Ellis and Barbara Arthur, of Myrtle Beach, pro se, for Appellants.1

Saunders M. Bridges, Jr. and Amy Anderson Wise, of Florence, for Respondents.

BEATTY, J.:


In this medical malpractice action, Ellis Arthur and Barbara Arthur (Appellants) appeal the circuit court's order, arguing the court erred in: (1) failing to set aside a scheduling order; (2) limiting discovery; (3) denying their Batson motion; and (4) excluding certain witnesses at trial. We affirm.

FACTS

On May 8 1995, Ellis Arthur visited the Sexton Dental Clinic with a toothache. Dr. Sojourner examined Arthur and extracted Arthur's tooth. Arthur returned to the Sexton Dental Clinic on May 10, 1995, because he continued to experience pain. Dr. Hester examined Arthur, did not see any problems, and sent Arthur home. Arthur began to experience trismus,2 and therefore returned to the Sexton Dental Clinic once again on May 12, 1995. Dr. Sojourner examined Arthur, discovered an infection, and prescribed antibiotics. Arthur was hospitalized on May 16 for the infection and remained hospitalized for approximately two weeks. Arthur continues to suffer from pain in his throat and jaw. In addition, he has trouble swallowing food, and cannot speak clearly.

On April 30, 1998, Arthur and his wife filed this action against the Sexton Dental Clinic, Dr. Eagerton,3 and some associates (Respondents) for medical malpractice. Shortly after answering the Appellants' complaint, Respondents' counsel served Appellants with interrogatories and requests for the production of documents. When responses were not completed in a timely manner, Respondents moved to compel Appellants to answer the discovery. After a hearing, Circuit Court Judge Sidney Floyd granted the motion and ordered Appellants to respond within sixty days and to specifically address information regarding their expert witnesses.

On July 26, 2000, Respondents retained new counsel. The new counsel soon became concerned regarding the limited amount of discovery that had been completed in the two years since the case was filed. As a result, counsel forwarded a proposed scheduling order to Circuit Court Judge James E. Brogdon, Jr., the Chief Administrative Judge, on November 9, 2000. Counsel also forwarded a copy of the proposed scheduling order to Appellants' counsel. A few days later, Judge Brogdon's law clerk called Appellants' counsel to discuss the proposed scheduling order and left a voicemail message concerning the order. In addition, Respondents' counsel mailed Appellants' counsel a letter inquiring whether Appellants would agree to the proposed scheduling order and stating that if Appellants did not consent, Judge Brogdon would schedule a conference to discuss the matter. After receiving no response from Appellants' counsel, Judge Brogdon signed the scheduling order on December 19, 2000.

Page 897

The order, which was filed on January 4, 2001, limited discovery to forty-five days.

On September 19, 2001, Circuit Court Judge J. Michael Baxley held a hearing concerning the parties' pending motions. The motions included the following: (1) Respondents' motion to compel discovery; (2) Respondents' motions for summary judgment; (3) Appellants' motion to set aside the scheduling order; (4) Appellants' motion to amend the pleadings to include additional doctors; and (5) Appellants' motion to compel the depositions of certain witnesses. At the beginning of the hearing, Judge Baxley notified the parties that he planned to defer Appellants' motion to set aside the scheduling order to Judge Brogdon. Judge Baxley stated "I am not the chief administrative judge" and "I'm going to defer to him and I'll let you go back in the back and have a telephone conference with Judge Brogdon." Appellants objected, arguing the "scheduling order is a matter that needs to be heard and ruled on by the Court because ... the other motions... fall from that." Judge Baxley refused to hear the scheduling order motion. However, he heard Respondents' motions and Appellants' motion to amend the pleadings. He deferred Appellants' motion to compel depositions until Judge Brogdon ruled on the scheduling order motion.

Prior to the telephone conference with Judge Brogdon, Judge Baxley denied Respondents' motion for summary judgment. Judge Baxley, however, granted Respondents' motion to compel discovery and ordered Appellants to produce dental records, prescription records, tax returns, and an itemized statement of damages within ten days. In addition, Judge Baxley denied Appellants' motion to amend the pleadings stating, "[i]t would be significantly prejudicial to these new parties and to the existing defendants to allow this amendment at this very late hour."

During the telephone conference, Judge Brogdon denied Appellants' motion to set aside the scheduling order. After the telephone conference, Judge Baxley resumed the proceeding and heard Appellants' motion to compel the deposition of certain witnesses. Because the witnesses were not properly identified prior to the end of discovery as provided in the scheduling order, Judge Baxley denied this motion. Appellants were, however, permitted to depose Dr. Eagerton.

On January 14, 2002, Judge Brogdon presided over the jury trial in the case. During jury selection, Appellants challenged two of Respondents' peremptory strikes based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Judge Brogdon held a Batson hearing and ruled the strikes were proper given there was no showing of pretext.

After the Batson hearing, Appellants' counsel renewed his motions. Judge Brogdon considered these motions as well as Respondents' pre-trial motions, which included: (1) Respondents' motion seeking to exclude certain evidence due to Appellants' failure to comply with discovery within the ten-day time frame set forth in Judge Baxley's order; and (2) Respondents' motion to exclude the testimony of Appellants' witnesses, Dr. Fish, Dr. Graham, and Dr. Chewning. Judge Brogdon granted Respondents' motion and, as a consequence, excluded evidence Appellants failed to timely produce. Specifically, Judge Brogdon excluded the testimony of Drs. Fish, Graham, and Chewning.

Ultimately, the jury rendered a verdict in favor of Respondents. Judge Brogdon denied Appellants' post-trial motions. This appeal followed.

DISCUSSION
I. Discovery

Appellants contend the circuit court erred in issuing the scheduling order outside the presence of Appellants' counsel. In the alternative, Appellants assert the circuit court erred in failing to set aside the scheduling order and declining to extend the time for discovery.4 We disagree.

Page 898

"The trial court's rulings on discovery matters will not be disturbed on appeal absent a clear abuse of discretion." Belk of Spartanburg, S.C., Inc. v. Thompson, 337 S.C. 109, 126-27, 522 S.E.2d 357, 366 (Ct. App.1999). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000).

Under certain conditions, the South Carolina Rules of Civil Procedure permit trial courts to issue scheduling orders for discovery. Rule 16(a)(5) provides that upon motion of the parties, the court "may in its discretion or upon motion of any party direct the attorneys for the parties to appear before it" for a pre-trial hearing to consider the limitation of time allowed for discovery. In addition, Rule 26(f) provides the following:

[T]he court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorneys for any party if the motion includes: (1) A statement of the issues as they then appear; (2) A proposed plan and schedule of discovery; (3) Any limitations proposed to be placed on discovery; (4) Any other proposed orders with respect to discovery; and (5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.

Rule 26(f), SCRCP. The court may combine a pre-trial hearing, authorized by Rule 16, and a discovery conference, authorized by Rule 26(f). Id.

In this case, Respondents' counsel forwarded a proposed scheduling order to Judge Brogdon on November 9, 2000, along with a brief letter explaining his concerns regarding the limited amount of discovery that had been completed.5 After unsuccessfully attempting to contact Appellants' counsel, Judge Brogdon signed the scheduling order on December 19, 2000, and filed it on January 4, 2001. Although Judge Brogdon did not hold a discovery conference or a pretrial hearing, we find no reversible error.

Initially, we reject Appellants' contention that Judge Brogdon was required to hold a hearing on the issuance of the scheduling order. Our review of the above-cited rules of civil procedure reveals that the decision of whether to conduct a hearing is a matter left to the discretion of the trial judge. This interpretation of the rules is supported by analysis of Rule 16 of the Federal Rules of Civil Procedure, a rule that is similar to our state court rule. Rule 16, SCRCP editor's note ("This Rule 16 is similar to the Federal Rule" with limited exceptions.). Specifically, secondary authority has stated that a scheduling conference is not mandatory and the issuance of a scheduling order does not require formal communication. See 6A Charles Alan Wright & Arthur R....

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13 practice notes
  • Jenkins v. Few, No. 4763.
    • United States
    • Court of Appeals of South Carolina
    • February 28, 2011
    ...588, 586 S.E.2d 572 (2003); Bryson v. Bryson, 378 S.C. 502, 662 S.E.2d 611 (Ct.App.2008); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 628 S.E.2d 894 (Ct.App.2006). However, we conclude the Bensch factors are more appropriate because the record before us indicates Jenkins listed Stokes as ......
  • Jenkins v. Few, Opinion No.  4763
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2010
    ...588, 586 S.E.2d 572 (2003); Bryson v. Bryson, 378 S.C. 502, 662 S.E.2d 611 (Ct. App. 2008); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 628 S.E.2d 894 (Ct. App. 2006). However, we conclude the Bensch factors are more appropriate because the record before us indicates Jenkins listed Stokes......
  • James v. South Carolina Dep't of Transp., No. 4835.
    • United States
    • Court of Appeals of South Carolina
    • June 1, 2011
    ...Hollman v. Woolfson, 384 S.C. 571, 577, 683 S.E.2d 495, 498 (2009); see also Arthur v. Sexton Dental Clinic, 368 S.C. 326, 333, 628 S.E.2d 894, 898 (Ct.App.2006). In my opinion, the circuit judge committed no error of law, and his ruling is supported by the facts. He therefore ruled within ......
  • Densmore v. City of Greenville, 2011-UP-089
    • United States
    • Court of Appeals of South Carolina
    • March 4, 2011
    ...knowledge of the name of the witness; and (5) the prejudice to the opposing party"); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 339, 628 S.E.2d 894, 901 (Ct. App. 2006) (determining the court did not need to specifically enunciate the five Jumper factors if, based on a review of the reco......
  • Request a trial to view additional results
13 cases
  • Jenkins v. Few, No. 4763.
    • United States
    • Court of Appeals of South Carolina
    • February 28, 2011
    ...588, 586 S.E.2d 572 (2003); Bryson v. Bryson, 378 S.C. 502, 662 S.E.2d 611 (Ct.App.2008); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 628 S.E.2d 894 (Ct.App.2006). However, we conclude the Bensch factors are more appropriate because the record before us indicates Jenkins listed Stokes as ......
  • Jenkins v. Few, Opinion No.  4763
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2010
    ...588, 586 S.E.2d 572 (2003); Bryson v. Bryson, 378 S.C. 502, 662 S.E.2d 611 (Ct. App. 2008); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 628 S.E.2d 894 (Ct. App. 2006). However, we conclude the Bensch factors are more appropriate because the record before us indicates Jenkins listed Stokes......
  • James v. South Carolina Dep't of Transp., No. 4835.
    • United States
    • Court of Appeals of South Carolina
    • June 1, 2011
    ...Hollman v. Woolfson, 384 S.C. 571, 577, 683 S.E.2d 495, 498 (2009); see also Arthur v. Sexton Dental Clinic, 368 S.C. 326, 333, 628 S.E.2d 894, 898 (Ct.App.2006). In my opinion, the circuit judge committed no error of law, and his ruling is supported by the facts. He therefore ruled within ......
  • Densmore v. City of Greenville, 2011-UP-089
    • United States
    • Court of Appeals of South Carolina
    • March 4, 2011
    ...knowledge of the name of the witness; and (5) the prejudice to the opposing party"); Arthur v. Sexton Dental Clinic, 368 S.C. 326, 339, 628 S.E.2d 894, 901 (Ct. App. 2006) (determining the court did not need to specifically enunciate the five Jumper factors if, based on a review of the reco......
  • Request a trial to view additional results

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