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Harris v. Palmetto Pediatric Professionals7/19/2005
ce when they requested, and the trial court granted, their request for a dismissal.
In any event, we find no merit in the Harrises' various arguments. First, we find the Harrises' assertion that the trial court improperly, sua sponte dismissed the case to be incorrect. As noted, the trial court simply acquiesced in the Harrises' request for a dismissal when the court refused another continuance. But cf. Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 211, 493 S.E.2d 826, 832 (1997) (holding that a trial judge possesses the inherent power to dismiss actions sua sponte for a party's failure to prosecute his claim); Crout v. South Carolina Nat'l Bank, 278 S.C. 120, 123-24, 293 S.E.2d 422, 423-24 (1982) (affirming the trial court's decision to dismiss the case with prejudice when a motion for continuance was denied and appellant was unprepared to try the case when called for trial).
The next assignment of error stems from the trial court's refusal to grant an additional continuance when the case was called for trial on July 22. We find no error in the trial court's denial of the Harrises' continuance request. Reiland v. Southland Equip. Serv., Inc., 330 S.C. 617, 637, 500 S.E.2d 145, 155-56 (Ct. App. 1998) (holding that a trial judge's ruling on a motion for a continuance will not be disturbed absent an abuse of discretion). We further note that when requesting a continuance on the basis of a lack of material evidence, the moving party must show not only the absence of some material evidence, but also due diligence on his part to obtain it. Hudson v. Blanton, 282 S.C. 70, 74, 316 S.E.2d 432, 434 (Ct. App. 1984).
Were we to accept the Harrises' contention that the so-called material evidence had been disclosed in June 2002, we would be constrained to join the able trial judge in finding that they failed to exercise due diligence to obtain the evidence. This failure is especially significant considering the age of this case, the repeated delays, the court's willingness to set the trial as a date certain, the clear prior warning by the court that this case would be tried on that specific date, and the Harrises' counsel's position a month earlier in June that the case was ready for trial but for his being called for trial in Atlanta. The denial of the motion for yet another continuance was proper.
The Harrises finally allege the court erred in excluding any expert witnesses not disclosed in discovery before June 6, 2002. This issue is not preserved for our review.
In Gold Kist, Inc. v. Citizens and Southern National Bank of South Carolina, 286 S.C. 272, 280-81, 333 S.E.2d 67, 73 (Ct. App. 1985), we considered the exclusion of deposition testimony. In that case, the trial court excluded the testimony because the proponent of the testimony made only a bare assertion the witness was living at the time in Georgia and desired the deposition testimony be admitted under then Circuit Court Rule 87(d)(3). Id. at 281, 333 S.E.2d at 73. We upheld the trial court's ruling in part because:
Gold Kist failed to establish a sufficient record on which adequate review of the issue could be made. Gold Kist did not set forth in the transcript of record a proffer of the evidence it sought to introduce. Assuming arguendo the court erred in excluding the deposition, without the proffer we cannot determine the prejudicial nature of the error. Without a showing of prejudice, the Court will not reverse a judgment for alleged error in the exclusion of evidence.
Id.
This court considered a similar situation in Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867 (Ct. App. 1986). There, the trial court limited redirect examination of an expert witness. I
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