Sheppard v. Kimbrough

• Decision Date: 25 April 1984
• Docket Number: No. 0220,0220
• Citation: 282 S.C. 348,318 S.E.2d 573
• Court: South Carolina Court of Appeals
• Parties: Stephen Paul SHEPPARD, Appellant, v. Edward S. KIMBROUGH, M.D., and Kathy Entzminger, R.N., Respondents. . Heard

Page 573

318 S.E.2d 573

282 S.C. 348

Stephen Paul SHEPPARD, Appellant, v. Edward S. KIMBROUGH, M.D., and Kathy Entzminger, R.N., Respondents.

No. 0220.

Court of Appeals of South Carolina.

Heard April 25, 1984.

Decided July 23, 1984.

O. Fayrell Furr, Jr. and Charles L. Henshaw, Jr., Columbia, and J. Alan Bass, Myrtle Beach, for appellant.

Donald V. Richardson, III, Charles E. Carpenter, Jr., and Steven M. Anastasion, Columbia, for respondents.

GOOLSBY, Judge:

Stephen Paul Sheppard appeals from an order denying his motion to vacate judgment and granting motions by the respondents Edward S. Kimbrough, M.D., and Kathy Entzminger, R.N., for summary judgment in an action for medical malpractice. The issues we address in this opinion concern the failure by Sheppard to include an exception relating to the denial of his motion to vacate judgment, the adoption by the trial judge of another circuit judge's order when granting summary judgment, the denial of Sheppard's motion for a continuance, and the support for Entzminger's motion for summary judgment. We affirm.

Sheppard filed a medical malpractice action against Kimbrough and Entzminger in 1979. The case was voluntarily nonsuited two years later, but only after each party's deposition was taken. Shortly afterward, on April 4, 1981, and proceeding pro se, Sheppard reinstituted another action against Kimbrough and Entzminger by the service of a summons only. A complaint virtually identical to the complaint in the prior action was served upon both defendants on April 23, 1981. Both defendants answered the complaint.

Thereafter, on April 28, 1981, Kimbrough filed a motion for summary judgment. A hearing on Kimbrough's motion was conducted before The Honorable Robert H. Cureton, Special Circuit Judge, on June 2, 1981. Sheppard failed to appear at the hearing. Three days later, on June 5, 1981, Judge Cureton granted Kimbrough summary judgment and dismissed Sheppard's complaint as to Kimbrough. Judge Cureton's order was followed on June 15, 1981, with a motion by Entzminger for summary judgment. Sheppard did not appeal Judge Cureton's order; rather, he moved on June 18, 1981, to vacate the order claiming he lacked notice of the June 2, 1981 hearing.

The Honorable Robert H. Burnside, Special Circuit Judge, held a hearing on July 7, 1981, upon Sheppard's motion to vacate Judge Cureton's order. Again, Sheppard failed to appear. On July 10, 1981, Judge Burnside dismissed Sheppard's motion to vacate; however, Sheppard was allowed ten days from the date of Judge Burnside's order to renew the motion to vacate. Seven days later, Sheppard again moved to vacate Judge Cureton's order asserting that he received neither notice of the June 2, 1981 hearing conducted by Judge Cureton nor notice of the July 7, 1981 hearing conducted by Judge Burnside.

The Honorable Luke N. Brown, Circuit Judge, held a hearing on August 5, 1981, on Sheppard's motion to vacate. This time, Sheppard was represented by counsel. At the hearing, Judge Brown heard both Kimbrough and Entzminger upon their respective motions for summary judgment after he denied Sheppard's request for additional time to secure affidavits in opposition to the motions for summary judgment. So far as we can tell, no one produced any affidavits either in support of or in opposition to either motion for summary judgment; however, the depositions of the parties taken in the prior action were part of the record before the court. ¹

In an order dated August 24, 1981, Judge Brown denied Sheppard's motion to vacate. He also granted both motions for summary judgment. In doing so, Judge Brown adopted "the reasons set forth in" Judge Cureton's order dated June 5, 1981, although Entzminger's motion was filed ten days after entry of Judge Cureton's order.

A. Appeal as to Kimbrough

The principal question involved with Sheppard's appeal of the order granting summary judgment to Kimbrough relates to Sheppard's failure to appeal the denial of his motion to vacate judgment.

Sheppard offered five exceptions to Judge Brown's order. Four pertain to Kimbrough. Each of the four exceptions assigns an error to that portion of Judge Brown's order granting Kimbrough summary judgment. No exception is taken by Sheppard, however, to that portion of Judge Brown's order denying his motion to vacate the summary judgment granted Kimbrough by Judge Cureton's earlier order.

Because Judge Brown did not have the power to review, affirm, reverse, or modify Judge Cureton's order granting Kimbrough summary judgment [ Tisdale v. American Life Ins. Co., 216 S.C. 10, 56 S.E.2d 580 (1949); Middleton v. Denmark Ice & Fuel Co., 97 S.C. 457, 81 S.E. 157 (1914) ] without first vacating the judgment in Kimbrough's favor, the only motion properly considered by Judge Brown was Sheppard's motion to vacate the judgment [see S.C. Code of Laws § 15-27-130 (1976); 46 Am.Jur.2d Judgments §§ 679 et seq. at 830-952 (1969) ]; and in the absence of a proper exception raising a question as to the correctness of Judge Brown's order denying his motion to vacate the judgment, we cannot consider whether Judge Brown committed error in denying it. See Cooper Tire and Rubber Co. v. Perry, 261 S.C. 538, 201 S.E.2d 245 (1973) (in the absence of a proper exception, question of whether earlier orders by another judge reached correct conclusion could not be considered on appeal); Pudigon v. Goblet, 24 S.C. 476 (1886) (appeal taken from an order refusing defendant's motion to vacate a judgment by default warranted dismissal of an appeal where no exception filed designating any specific error in order appealed from).

We need not reach, then, the issue concerning whether Judge Brown erred in granting summary judgment in Kimbrough's favor. Because Judge Brown did not set aside Judge Cureton's order granting Kimbrough summary judgment, the entertainment by Judge Brown of Kimbrough's motion for summary judgment was superfluous. Even if Judge Brown committed error in granting Kimbrough summary judgment, "it would be idle to remand the case" for that reason since an unappealed from and unvacated judgment in Kimbrough's favor, that given earlier by Judge Cureton, remains outstanding. Cathcart v. Hopkins, 119 S.C. 190, 212, 112 S.E. 64, 71 (1922); 5B C.J.S. Appeal & Error § 1852 at 290 (1958).

We therefore affirm the judgment insofar as it relates to Kimbrough.

B. Appeal as to Entzminger

Sheppard directs several exceptions to the granting of summary judgment by Judge Brown to Entzminger. He complains about (1) Judge Brown's basing his grant of summary judgment to Entzminger on Judge Cureton's order of June 5, 1981, "because ... Entzminger did not make a [m]otion for [s]ummary [j]udgment until June , 1981, and the merits of her [m]otion were not considered" at that time; (2) Judge Brown's not allowing him additional time within which to secure an affidavit in opposition to Entzminger's motion for summary judgment; (3) Judge Brown's granting Entzminger summary judgment "because [Sheppard did not] ... produce expert testimony that [Entzminger was] negligent in the administration of medical treatment and care to [Sheppard];" and (4) Judge Brown's granting Entzminger summary judgment "on the basis that the statute of limitations became a bar to the action after the action was commenced by [s]ummons [w]ithout [c]omplaint but before service of the [c]omplaint." ²

1.

Sheppard objects to Judge Brown's granting summary judgment to Entzminger's based upon the reasoning employed by Judge Cureton in an earlier order granting summary judgment to Kimbrough. He maintains that Judge Brown improperly adopted the reasoning of Judge Cureton's order because Judge Cureton could not have considered the merits of Entzminger's motion for summary judgment since her motion came after Judge Cureton issued his order.

We cannot agree with Sheppard that the adoption by Judge Brown of the reasoning employed by Judge Cureton in an earlier order that did not discuss the merits of Entzminger's motion for summary judgment manifests that Judge Brown failed to give proper consideration to the record as it related to Entzminger when Judge Brown granted Entzminger's motion for summary judgment.

Judges often adopt the reasoning used by other judges in different cases involving similar factual situations. The mere fact that Judge Brown's opinion employs the reasoning of another judge does not cause the opinion to lose its character as Judge Brown's opinion since it clearly appears that the opinion adopted by Judge Brown is his own. See 20 Am.Jur.2d Courts § 71 at 435-36 (1965) ("Nor does an opinion lose its character as an opinion of the court merely by the fact that it has not been prepared by any member of the court, but has been drafted by one not a member of the court, provided the opinion has been adopted by the court as its own opinion").

Moreover, simply because the merits of Entzminger's motion were not considered by Judge Cureton does not make Judge Brown's action upon Entzminger's motion any less valid. What is important is whether Judge Brown considered the merits of Entzminger's motion and not whether Judge Cureton did so. Judge Brown's order plainly discloses that Entzminger moved for summary judgment in her favor on June 15, 1981, that she based her motion upon the discovery conducted in the prior case involving the parties, and that he heard the motion on August 5, 1981. He obviously felt, since he adopted the reasoning of Judge Cureton's order granting summary judgment to Kimbrough, that, as in the case of Kimbrough, "[t]he record is completely devoid of...