Lukacs v. Walker, 1458

• Decision Date: 18 January 1990
• Docket Number: No. 1458,1458
• Citation: 301 S.C. 80,390 S.E.2d 365
• Court: South Carolina Court of Appeals
• Parties: Thomas R. LUKACS, d/b/a Low Country Concrete, Respondent, v. Medley Randolph WALKER, Strico Development Corporation and First Trident Savings and Loan Association of whom Strico Development Corporation is appellant. Appeal of STRICO DEVELOPMENT CORPORATION. . Heard

Page 365

390 S.E.2d 365

301 S.C. 80

Thomas R. LUKACS, d/b/a Low Country Concrete, Respondent, v. Medley Randolph WALKER, Strico Development Corporation and First Trident Savings and Loan Association of whom

Strico Development Corporation is appellant.

Appeal of STRICO DEVELOPMENT CORPORATION.

No. 1458.

Court of Appeals of South Carolina.

Heard Jan. 18, 1990.

Decided Feb. 20, 1990.

George Raymond McElveen, III, of McElveen & McElveen, Columbia, for appellant.

Cheryl D. Shoun and Robert T. Lyles, Robinson, Craver, Wall & Hastie, Charleston, for respondent.

SHAW, Judge:

Respondent, Thomas R. Lukacs, doing business as Low Country Concrete, sued appellant, Strico Development Corporation, for failure to pay sums due under a contract. Lukacs moved for summary judgment against Strico. From an order of the trial judge granting Lukacs' motion, Strico appeals. We affirm.

This appeal arises from multi-party litigation involving the construction of a residence. Lukacs, a subcontractor, alleged Strico, a general contracting firm, failed to pay the sum of $12,308.80 due under an agreement between the parties for labor, services and materials furnished by Lukacs. On June 30, 1988, Strico filed and served a summary judgment motion against a third party. This motion was scheduled and heard on August 11, 1988. On July 27, 1988, Lukacs filed and served a motion for summary judgment against Strico. At the time of the August 11, 1988 hearing on Strico's motion for summary judgment, Lukacs' attorney appeared and requested the motion for summary judgment against Strico be heard. Counsel for Strico objected to the hearing of Lukacs' summary judgment motion stating that the motion had not been scheduled to be heard and he had affidavits he wanted to file. The trial judge then rescheduled the hearing on the motion for the following morning.

On August 12, 1988, counsel for Strico appeared at the hearing but failed to object to the scheduling of the hearing on that day. He merely argued the contract on which Lukacs' cause of action and summary judgment motion was based had been renegotiated by a third party who was another defendant named in the case. However, Strico's counsel was unable to present any evidence in support of this position.

At the hearing, the trial judge granted Lukacs' motion for summary judgment and ruled, as a matter of law, Lukacs was entitled to attorney's fees under the contract. He did not state a definite dollar amount for Lukacs' judgment nor set the amount of attorney's fees. On August 23, 1988, the trial judge issued his written order granting summary judgment to Lukacs in the amount of $12,308.80 along with reasonable attorney's fees.

Strico first contends the trial judge erred by ruling on Lukacs' motion for summary judgment without giving Strico ten days notice of a date certain on which the hearing would be held pursuant to Rule 56(c) S.C.R.C.P. Lukacs argues the rule does not require ten days notice of a date certain, but requires the motion not be heard sooner than ten days from the date of service of the motion.

While both parties present compelling arguments, we do not address the question of whether ten days notice of a date certain is required by Rule 56(c), for this issue was not properly raised or preserved. The record reflects the following colloquy between the trial judge and Strico's counsel after objection that the motion had not been scheduled:

THE COURT: You've had ten days.

MR....