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Harris v. Palmetto Pediatric Professionals7/19/2005
Submitted June 1, 2005
AFFIRMED
Alexander and Etta Harris, individually and as parents of Anita Harris, initiated this medical malpractice action in 1996. Following years of delay and numerous continuances, the case was called for trial a final time on July 22, 2002, at which time the Harrises sought another continuance or, alternatively, a dismissal. The trial court refused a further continuance but granted the Harrises' request for a dismissal. The Harrises appeal from the dismissal of their action. We affirm.
FACTS
After filing this medical malpractice suit in 1996, the Harrises obtained a voluntary dismissal in 1999 pursuant to Rule 41(a), SCRCP. In 2000, the Harrises refiled the action. In 2001, on the motion of the Harrises, the court struck the case from the jury roster for 180 days. The case was subsequently returned to the jury roster and called for trial on June 3, 2002. Counsel for the Harrises did not appear for trial. The trial court contacted the Harrises' counsel who, by way of a conference call, informed the judge that he was in a criminal trial in Atlanta, Georgia, and could not appear.
At that time, the court found the "Plaintiff's attorney has obtained various extensions and voluntary dismissals and this Court finds no excuse to again delay trial on the eve of a scheduled trial date." Rather than dismiss the case, the trial court, by an order dated June 6, 2002, continued the case again and set the case for a date certain trial on July 22, 2002. Additionally, that order stated discovery was ended and no witnesses, lay or expert, could be added to the witnesses already listed in the answers to interrogatories. Although it is admitted that the July 22 trial date was known to the parties, it appears that the order ending discovery was not sent to the parties.
When the case was called for trial on July 22, the Harrises' attorney motioned the court to set aside its previous June 6, 2002, order, reopen discovery, and establish a new scheduling order in light of newly discovered evidence and the need for additional discovery. The court heard extensive argument on the motion and ultimately denied it. When asked if he was ready to go forward, the Harrises' attorney answered, "No, your honor." He further stated, "We'd just ask the court if the court would grant us a continuance on this, and if the court does not grant a continuance, we have no choice but to take a voluntary dismissal--or an involuntary dismissal of this case." The court denied the request for the continuance and stated, "we'll either go forward or you're taking an involuntary non-suit." The Harrises' attorney again stated "it is our position we're taking an involuntary non-suit if the court refuses to grant a continuance." After asking again whether plaintiffs were ready for trial and being told no, the court told them, "Your motion for an involuntary non-suit is granted." The Harrises now appeal.
LAW/ANALYSIS
We begin with the fundamental appellate precept that a party may not challenge on appeal a ruling that he requested. Rule 201(b) of the South Carolina Appellate Court Rules provides: "Only a party aggrieved by an order, judgment or sentence may appeal." (emphasis added); see also Beaufort Realty Co., Inc. v. Beaufort County, 346 S.C. 298, 301, 551 S.E.2d 588, 589 (Ct. App. 2001) (noting that " he word 'aggrieved' [in Rule 201(b)] refers to a substantial grievance, a denial of some personal or property right, or the imposition on a party of a burden or obligation"). In this case, the Harrises effectively waived any and all assignments of error or any colorable claim that they have otherwise suffered a substantial grievan
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