THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Louise Wellington, as GAL for Johnny Lee Sanders,        Appellant,

v.

Roberta Floyd, individually, and as Administrator of Manor House of Olanta and Manor House of Olanta,        Respondent.

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Appeal From Florence County
B. Hicks Harwell, Jr., Circuit Court Judge

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Unpublished Opinion No. 2004-UP-575
Submitted October 1, 2004 � Filed November 16, 2004

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REVERSED AND REMANDED

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Ralph J. Wilson, of Conway, for Appellant.

Thomas H. Milligan, of Mt. Pleasant, for Respondent.

PER CURIAM: Louise Wellington, Guardian Ad Litem for Johnny Lee Sanders, appeals the circuit court�s order granting Respondent�s motion for summary judgment on Sanders� action for breach of duty of care.� We reverse and remand. [1]

FACTS

In 1987, an injury to Sanders� head rendered him incapable of living independently.� Sanders also suffered from seizures as a result of the injury and had to take several medications daily to control the seizures.� In 2000, Sanders became a resident of Manor House of Olanta, a residential care facility in Olanta, South Carolina.� In the contract between the parties, Manor House agreed to provide Sanders with certain services, mainly room and board, laundry, and the supervision and administration of medications, although upon admission into the facility Sander�s doctor declared him �capable of self administration of medications.�� The contract also provided that Sanders could �come and go as he please[d].��

Sanders left the premises of the residential care facility on April 11, 2001.� Upon leaving the facility, he was arrested for trespassing and spent more than two weeks in the Effingham Jail in the custody of the Florence County Sheriff�s Department, until he was released to the care of his sister.� Manor House did not know of Sanders� whereabouts during the two-week period and did not attempt to find Sanders or notify his family members of his absence.� Three days after being released to his sister�s care, Sanders suffered seizures.

As an assisted living facility, Manor House of Olanta is licensed under the South Carolina Department of Health and Environmental Control�s Regulations.� 25A S.C.Code Ann.Regs. 61-84 (Supp. 2000).� The regulations require a facility to immediately report residents who have left the facility under circumstances that raise concern about the resident�s safety to any agency providing services to the resident, next of kin, and local law enforcement.� Id. at � 404 (c).���

Sanders brought an action against Roberta Floyd, individually and as Administrator of Manor House of Olanta, and Manor House of Olanta (Respondents) for breach of duty of care, arguing that the regulations create a duty of care for a negligence per se action.� Respondents filed a Motion for Summary Judgment with a Memorandum in support of the Motion, arguing that the licensing regulations do not provide Sanders with a cause of action, and the obligations of the parties are governed merely by the contract between them.�

The Clerk of Court notified the parties that a hearing would be held on August 29, 2002.� Respondent�s counsel also notified Sanders� counsel about the hearing in two letters, dated August 1, 2002 and August 9, 2002.� The second letter specifically requested that any discovery be completed prior to the hearing and offered to �accommodate [counsel] in any way to have any discovery accomplished prior to the hearing.�� After a request for continuance by Sanders� counsel, the hearing was rescheduled for October 23, 2002.�

The Clerk of Court sent notification of the new hearing date to the parties on October 2, 2002. �Sanders filed a Memorandum in Opposition to the Motion for Summary Judgment on October 8, 2002, which did not include any affidavits or supporting testimony.� Sanders did not send a copy of the memorandum to Respondent.� Sanders� counsel also did not appear at the October 23rd hearing.� The judge held that Respondent owed no duty to the plaintiff and therefore did not breach any standard of care to the plaintiff.

Sanders filed a Motion for Reconsideration on November 7, 2002, accompanied by a Memorandum in Support of Motion for Reconsideration.� The judge denied the Motion for Reconsideration based on the �different standards of care that are applicable and the evidence considered and arguments made at the previous hearing.�� Louise Wellington, as Sanders� Guardian Ad Litem, now appeals.

LAW/ANALYSIS

I.          Notice

Sanders maintains the circuit court erred in finding proper notice had been given to him pursuant to Rules 5 and 6, SCRCP, in regards to the October 23, 2002 hearing.� We disagree.

Rules 5 and 6 of the South Carolina Rules of Civil Procedure provide that for every written motion, notice of the hearing must be served upon each of the parties through their attorney, if there is one, by delivering a copy to him or by mailing it to him at his last known address.� Rule 5(a) and (b)(1), SCRCP.�

The Clerk of Court properly notified Sanders, by mailing notice of the hearing to the most recent address on record for Sanders� counsel.� Thus, service was proper.

II.         Summary Judgment

Sanders argues the circuit court erred in granting summary judgment when discovery had not yet been completed.� We disagree.

�[S]ummary judgment must not be granted until the opposing party has had a full and fair opportunity to complete discovery.�� Baughman v. American Tel. & Tel., Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991).� Summary judgment also should not be granted if a party can demonstrate that further discovery will uncover additional evidence relevant to the issue and that they are not merely engaged on a �fishing expedition.�� Id. at 112, 410 S.E.2d at 544.� Sanders neither requested additional time from the court for discovery, nor proved that any extra time would be beneficial to resolving the summary judgment motion.� In addition, opposing counsel sent correspondence volunteering to help with any discovery that needed to be completed before the hearing.� Therefore, Sanders had a full and fair opportunity to complete discovery.

Sanders also claims the circuit court erred in granting summary judgment because, viewing the evidence in the light most favorable to Sanders, material issues of fact exist regarding whether Floyd or Manor House breached a duty of care to Sanders or proximately caused Sanders� injuries.� We agree.

On appeal of a grant of a summary judgment, we apply the same standard that governs the trial court under Rule 56(c), SCRCP:� summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.� Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).� In determining whether an issue of fact exists, the evidence and all inferences that can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party.� Faile v. South Carolina Dep�t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002).� �Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law.�� Vermeer Carolina�s, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 59, 518 S.E.2d 301, 306 (Ct. App. 1999).� �Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied.�� Hall v. Fedor, 349 S.C. 169, 173-74, 561 S.E.2d 654, 656 (Ct. App. 2002).� Moreover, �[s]ummary judgment is a drastic remedy, which should be cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues.�� Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 349 S.C. 356, 363, 563 S.E.2d 331, 336 (2002).

Rule 56(e), SCRCP, states that a party opposing a motion for summary judgment �may not rest upon the mere allegations or denials of his pleading.�� The party must submit affidavits or the like, which �set forth specific facts showing that there is a genuine issue for trial.� If he does not so respond, summary judgment, if appropriate, shall be entered against him.�� Rule 56(e), SCRCP.

In CEL Products, LLC v. Rozelle, this court held an employer was entitled to summary judgment as to a former employee�s claims because the former employee merely relied on his pleadings and did not present opposing affidavits.� 357 S.C. 125, 130, 591 S.E.2d 643, 645 (Ct. App. 2004).� When a plaintiff is faced with a defendant�s motion for summary judgment that is supported by evidence, the plaintiff cannot defeat the motion by relying upon the mere allegations of his complaint, but must disclose the facts he intends to rely on by affidavit or other proof.� Dyer v. Moss, 284 S.C. 208, 211, 325 S.E.2d 69, 70 (Ct. App. 1995).� �A conclusory statement as to the ultimate issue in a case is not sufficient to create a genuine issue of fact for purposes of resisting summary judgment.�� Shupe v. Settle, 315 S.C. 510, 516-517, 445 S.E.2d 651, 655 (Ct. App. 1994).�

However, ��[the] party opposing summary judgment need not come forward in any way if the moving party has not supported his motion to the point that it is a sham.��� Title Ins. Co. of Minnesota v. Christian, 267 S.C. 71, 76, 226 S.E.2d 240, 242 (1976) (quoting Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967)).� ��Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied, even if no opposing evidentiary matter is presented.��� Id. (quoting Fed. R. Civ. P. 56).� The party moving for summary judgment carries the initial burden of showing an absence of evidentiary support for the nonmoving party�s case.� NationsBank v. Scott Farm, 320 S.C. 299, 303, 465 S.E.2d 98, 100 (Ct. App. 1995).

Although Sanders did not offer any affidavits in opposition to Respondent�s motion, Respondent�s evidentiary showing as to the issue of negligence fails to establish the absence of a genuine issue.� Respondent maintains its contract with Sanders provided that he was free to �come and go� as he pleased and submitted a sworn affidavit prepared by Roberta Floyd denying she or Manor House had a duty of care.� However, section 404 (c) of the South Carolina Code Regulations 61-84 (Supp. 2000) states:

In cases where a resident leaves the facility under circumstances which raise concerns about his/her safety, the following must be contacted immediately: next of kin or responsible person, sponsoring agency or any other agency providing services to the client and local law enforcement.

25A S.C.Code Ann.Regs. 61-84 (Supp. 2000).

Whether Sanders left the facility under circumstances that should have raised concern about his safety is a genuine issue of material fact, therefore, the motion for summary judgment should have been denied.�

REVERSED AND REMANDED.

STILWELL, BEATTY, and SHORT, JJ., concur.

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