THE STATE OF SOUTH CAROLINA

Unpublished Opinion No. 2003-UP-381
Submitted March 26, 2003 – Filed June 3, 2003

PER CURIAM: Henry Dickey (Dickey) appeals the circuit court’s dismissal of his Motion to Reconsider under Rule 59, SCRCP. Dickey contends the circuit court abused its discretion by refusing to grant a continuance due to the sudden illness of his counsel. Dickey also argues the circuit court violated the provisions of Rule 40(b). Finally, Dickey complains the court failed to establish a record of its motion to dismiss or a record of its justification for denying a continuance.

On June 10, 1999, Dickey filed a legal malpractice action against W. Carole Holloway, an attorney in Darlington County, alleging negligence in the handling of an action regarding recovery of attorney’s fees. In his complaint, Dickey asked for damages in excess of two million dollars ($2M). [1] Holloway filed an answer on July 9, 1999.

By memorandum dated February 9, 2001, the clerk of court for Darlington County notified Dickey’s counsel of a mandatory roster meeting scheduled for Monday, March 5, 2001 at 9:30 a.m. The Notice of Jury Roster memo was accompanied by a Roster Report dated “Monday, 2/12/2001.” Pages 23 and 24 of the Roster Report included Dickey’s case, the names of counsel and an abbreviated chronology of papers served up until the date of printing.

The Notice of Jury Roster was posted by certified mail to Dickey’s counsel in Atlanta, Georgia. The certified mail receipt does not indicate the date of mailing by the circuit court; however, the delivery signature indicates that Valerie Waddell (presumably an employee) claimed the notice on February 22, 2001.

By letter dated March 2, 2001, Dickey’s counsel notified the circuit court of conflicts in cases in which he was lead counsel including Dickey v. Holloway. Dickey’s counsel advised the court that he intended to resolve the conflicts “according to numerical order listed in Exhibit ‘A’.” [2] Further, counsel informed the court that he intended to “go forward with the priority of cases as identified in Exhibit ‘A’ unless [he was] properly notified of a different priority of appearance which has been conferred and agreed upon by the Honorable Judges or the Clerk.”

On March 6, 2001, the circuit court left a message with Dickey’s counsel directing him to appear in court on the following morning of March 7 to proceed to trial. Counsel did not appear at the circuit court the following morning. Accordingly, the circuit court, by order dated and filed March 7, 2001, dismissed Dickey’s case for failure to prosecute. Counsel claims he fell seriously ill on the night before he was scheduled to appear and was unable to return to work until March 27, 2001, whereupon he received written notice of the dismissal.

On April 6, 2001, pursuant to Rule 59, SCRCP, counsel filed a motion to amend the judgment of dismissal for failure to prosecute.

The motion to amend included exhibits. Among them was a letter from counsel dated March 9, 2001 to the circuit court requesting a continuance of his pending cases for the period of March 7, 2001 through March 15, 2001 because of an acute illness. This letter referenced an enclosed doctor’s excuse from a physician’s office in Columbia, S.C. [3]

Counsel also filed an affidavit on April 6, 2001 in which he claims to have notified the Clerk of Court’s office on March 7, 2001 of his sudden illness and requested continuance on all cases. Counsel further states in his affidavit that “[o]n March 9, 2001, and after seeing the doctor, I followed up my request for continuance via letter and physician slip, explaining my illness to the court.” Finally, counsel states “[t]he Presiding Judge and Clerk of Court were first made aware and given notice of my acute illness on March 7, 2001.”

The next intelligible document included in the record is the order from Judge Floyd dated June 27, 2001 denying counsel’s Rule 59 motion to amend. In rendering the denial, the circuit court noted the following: “Motion Dismissed after giving due notice. Although Plaintiff’s Attorney did not appear; I find my previous order is appropriate.”

A motion for continuance lies within the trial court’s sound discretion, and it’s ruling will not be reversed without a clear showing of abuse. McKissick v. J. F. Cleckley & Co., 325 S.C. 327, 479 S.E.2d 67 (Ct. App. 1996). Mere allegations of error are not sufficient to demonstrate an abuse of discretion. On appeal, the burden of showing abuse of discretion is on the party challenging the trial court’s ruling. State ex rel. McLeod v. Wilson, 279 S.C. 562, 310 S.E.2d 818 (Ct. App. 1983).

Counsel contends the trial court abused its discretion in refusing to grant a continuance because counsel provided timely notice of his sudden illness. We disagree.

Counsel claims in his April 6, 2001, Motion to Amend and affidavit that both the presiding judge and the clerk of court were “made aware and given notice of [his] acute illness on March 7, 2001.” Counsel does not say how he contacted the court, to whom he spoke with, any reply on behalf of the court either accepting his request or denying it, or why there is nothing in the record, save his own statements, confirming this March 7 notice. Counsel offers no evidence as to how the presiding judge may have known of his illness.

Counsel next claims he followed up this initial notice with a letter and doctor’s excuse “sent and faxed to the court on March 9, 2001.” Counsel declined to provide any evidence in the record confirming the circuit court received these documents on March 9. To wit, there is no certified mail receipt, facsimile confirmation sheet, or March 9 date stamped copy from the circuit court. In fact, both the letter and the doctor’s excuse are date stamped as received by the circuit court on April 6, 2001. [4]

We note that counsel did not visit a physician or compose the written request for a continuance until two days after he was scheduled to appear before the court. The record only confirms that the Motion to Amend, request for continuance, doctor’s excuse and affidavit were filed by the circuit court on April 6, 2001, nearly a full month after counsel’s failure to appear.

Counsel has failed to provide a convincing record to substantiate his claim he provided prompt and timely notice of his illness and request for a continuance to the circuit court. Accordingly, we find the circuit court acted within its discretion to deny counsel’s request for a continuance. No error.

Counsel contends the circuit court violated Rule 40(b), SCRCP by failing to give counsel at least 24 hours notice before the case was called to trial and by calling the case for trial before it had been on the Jury Roster for 30 days. We disagree.

Rule 40(b) is the second major section of Rule 40 and governs the call of cases on the Jury Roster. Under the terms of 40(b), a case must be on the Jury Roster for 30 days before it may be called for trial. More importantly, the rule restricts the number of cases that are subject to trial on the first day of a term of court. The first twenty cases on the Jury Trial Roster that, before the opening of the term of court, have not been dismissed, continued or otherwise resolved may be called immediately. All cases after the first twenty require at least 24 hours notice before they may be called for trial. Once called the court may in its discretion grant a continuance as provided in Rule 40(i). See Rule 40(b), SCRCP.

The record is lean on the notice issue and counsel’s statements are vague. The Roster Report is incomplete. There is no certain way to determine whether or not the case at issue fell within the first twenty cases on the original report making 24-hour notice unnecessary. Assuming this case was number twenty-one (21), appellant’s argument still fails.

The Jury Trial Roster contains numerous unidentified handwritten notations. Relevant to our inquiry is a notation stating “Michelle left message on 6th” just beneath the caption for Dickey v. Holloway. Directly above this notation, in a distinct hand, is a date and time of “11:00 AM 3-7.” In the motion to amend counsel simply makes the conclusory statement that he was given less than twenty-four hours notice that his case would be tried on March 7, 2001 without any supporting facts in his affidavit or exhibits. Finally, in the appellant’s brief, counsel states, “On the afternoon of March 6, 2001, Plaintiff’s counsel received a call from Deputy Clerk directing him to appear to court on the next morning at 9:00 a.m. to proceed to trial.”

Counsel makes no effort to link the written notations on the Roster Report and the Deputy Clerk’s telephone call to a conclusion that the requisite notice was not given. Counsel admits he was given notice on March 6 and offers no evidence supporting his contention that he was telephoned in “the afternoon”. In any event, this court cannot reach into the ether and create conclusions for the appellant. This record and counsel’s conclusory account are insufficient to show a violation of the Rule 40(b) notice requirement.

Counsel further contends the circuit court called the case for trial less than thirty (30) days from the date the case appeared on the jury trial roster in violation of Rule 40.

Rule 40 clearly states only that the case must appear on the Jury Trial Roster for at least thirty (30) days prior to trial. In the appellant’s brief, counsel claims he received his first notice that the case was on the Roster when he retrieved his mail on February 22, 2001. Thus, the call for the case on March 7 fell well short of the thirty (30) day period required under the rule. This reasoning misses the mark. We are concerned with the date upon which the case of Dickey v. Holloway first appeared on the Jury Trial Roster. Counsel declines to address this question. The record reveals only that the circuit court sent out a memorandum to counsel dated February 9, 2001, advising him of a mandatory roster meeting on March 15, 2001 along with a copy of the edited Jury Trial Roster Report which has a print date in the upper left-hand corner of 2/12/2001. Counsel makes no conclusions as to the significance of either of these dates with regard to his claim of inadequate notice. Neither does he reference these documents in his motion to amend or the brief.

Counsel does not provide adequate supporting authority to sustain his claim of a violation of Rule 40. Thus, he is deemed to have abandoned the issue. Matthews v. City of Greenwood, 305 S.C. 267, 407 S.E.2d 668 (Ct. App. 1991). Mere allegations of error are not sufficient to demonstrate an abuse of discretion. State ex rel. McLeod v. Wilson, 279 S.C. 562, 310 S.E.2d 818 (Ct. App. 1983).

Counsel claims the circuit court erred in failing to establish a record evidencing a motion to dismiss and providing a justification for denying the request for a continuance. We disagree.

These issues are not preserved for our review because they were not raised in the trial proceedings. See State v. Pauling, 322 S.C. 95, 100, 470 S.E.2d 106, 109 (1996) (stating that "[h]aving denied the trial judge an opportunity to cure any alleged error by failing to contemporaneously object ..., Appellant is procedurally barred from raising these issues for the first time on appeal"); State v. Peay, 321 S.C. 405, 413, 468 S.E.2d 669, 674 (Ct.App.1996) (finding a contemporaneous objection and ruling at trial are required to preserve an error for review).

In light of the fact that counsel has presented conclusory claims without solid support, we decline to disturb the order of the circuit court denying his Rule 59 motion to reconsider or amend the judgment. The order of the circuit court must be,

[1] One should note that James H. Dickey, an Atlanta attorney, represented Henry J. Dickey, plaintiff in this case. While both gentlemen carry the same surname, there is nothing in the record to indicate either man is related to the other. This appeal concentrates on the activity, or lack thereof, of counsel, J.H. Dickey.

[2] Exhibit “A” consisted of a list of two cases. Dickey v. Holloway was listed as the second of the two. See the Record on Appeal page 19.

[3] There is nothing on either the letter or the accompanying doctor’s excuse to indicate when they may have come to the attention of the court other than the typed date and the date-filed stamp for April 6, 2001. Specifically, there is nothing in the letter referencing any prior conversation(s) between counsel and the judge or the clerk’s office regarding his illness. There is no facsimile confirmation sheet indicating that either the letter or excuse was faxed to the court.

[4] This is the same date counsel filed his motion to amend and affidavit giving his version of his communication with the court.