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Oulla v. Velazques

Court of Appeals of South Carolina

July 24, 2019

Price Oulla and Bonnie Oulla, Appellants,
v.
Lisa Velazques; Harbison Community Association, Inc.; Cody Sox; and Patten Seed Company d/b/a Super-Sod; Defendants, Of which Patten Seed Company d/b/a Super-Sod is the Respondent. Appellate Case No. 2017-000093

          Heard June 5, 2019

          Appeal From Orangeburg County R. Knox McMahon, Circuit Court Judge James B. Jackson, Jr., Circuit Court Judge.

          William E. Applegate, IV, David Breault Lail, and Christopher James Bryant, all of Yarborough Applegate, LLC, of Charleston, for Appellants.

          Charles H. Williams, of Williams & Williams, of Orangeburg; and Edward Raymond Moore, III, Wesley Brian Sawyer, and Rogers Edward Harrell, III, all of Murphy & Grantland, PA, of Columbia; for Respondent.

          THOMAS, J.

         In this civil action arising from an automobile accident, Price Oulla and Bonnie Oulla (collectively, the Oullas) appeal the circuit court's order granting Patten Seed Company's d/b/a Super-Sod (Super-Sod) motion for summary judgment. On appeal, the Oullas argue the circuit court erred in finding (1) the loader of a vehicle did not owe a duty under section 56-5-4100 of the South Carolina Code (2018) to ensure the load did not escape the vehicle and (2) the loader of a vehicle that travelled on a public highway did not owe a common-law duty to third-party drivers on public highways to ensure the load did not escape the vehicle. Further, the Oullas argue the circuit court erred in denying their motion to amend their complaint. We affirm.

         FACTS/PROCEDURAL HISTORY

         In July 2014, Harbison Community Association (Harbison) ordered two pallets of sod from Super-Sod for a landscaping project. On July 22, 2014, Harbison sent two employees-Cody Sox and Corey Branham-to pick up the sod from Super-Sod's location in Orangeburg. Sox and Branham drove a Harbison maintenance truck with a double-axle flatbed trailer from Columbia to Orangeburg to get the sod. They arrived at Super-Sod's location, completed the purchase, and drove to the sod loading site.

         Prior to loading the pallets onto the trailer, Melvin Kearse, a Super-Sod employee working at the loading area, wrapped the sod using plastic wrap. Sox directed Kearse to load the pallets onto the flatbed trailer with one pallet placed in front of the double-axle and the other pallet behind it. Using a forklift, Kearse loaded the pallets onto the trailer as directed. Sox and Branham inspected the trailer, checked the hitch, ensured the load was balanced, and confirmed the trailer bed was clean and free of debris. Although Sox intended to bring straps to tie down the pallets, he and Branham forgot to bring them. Sox asked if Super-Sod had any straps they could use, but he was told Super-Sod did not have any. Sox then decided to leave Super-Sod's property and drive back to Columbia without tying down or otherwise securing the pallets.

         Sox and Branham drove for a short period of time without incident before taking a cloverleaf onramp to westbound Interstate 26 (I-26). Sox successfully exited the onramp and merged into the right-hand lane of the interstate highway. However, shortly after merging onto the highway, a blue tractor-trailer veered into Sox's lane, forcing him to take evasive action. Sox swerved into the shoulder of the interstate to avoid the tractor-trailer. Sox felt the flatbed trailer sway and decided to pull over onto the side of the interstate. When he stopped, Sox noticed the plastic wrap on one of the pallets had torn and approximately half of a pallet of sod had fallen off the back of the trailer. Although none of the sod struck any vehicles, much of it fell into the right-hand lane and forced traffic to the left-hand lane.

         Sox called 911 and the operator dispatched a fire engine and a fire truck. When fire department personnel arrived at the scene, they blocked the right-hand lane of traffic while they removed the sod from the roadway. After they removed the sod, the firemen moved the fire truck off to the side of the road and reopened the right-hand lane for travel. Shortly afterward, fire department personnel received reports of an accident where traffic was still backed up. Price Oulla had been driving west on I-26 and had come to a stop due to the traffic congestion in the area. After Oulla stopped, Lisa Velazques drove into the back of his vehicle at a high rate of speed, causing injuries and damage to both vehicles.

         On December 31, 2014, the Oullas filed a complaint for negligence against Velazques, Harbison, Sox, and Super-Sod. On May 5, 2016, Super-Sod filed a motion for summary judgment, arguing it did not owe a duty of care to the Oullas and even if it did owe a duty, its conduct did not proximately cause the accident. Approximately thirty minutes prior to the hearing on Super-Sod's motion for summary judgment on June 29, 2016, the Oullas filed a motion to amend their complaint pursuant to Rule 15, SCRCP. The proposed amended complaint included a reference to section 56-5-4100 as a basis for the Oullas' claim that Super-Sod owed them a duty of care and added a cause of action for breach of an implied warranty of merchantability. The Oullas argued against Super-Sod's motion but did not notify the circuit court they filed the motion to amend, move for a continuance, or object to the summary judgment hearing proceeding as scheduled.

         At the hearing, the Oullas argued section 56-5-4100 imposed a legal duty on Super-Sod to secure its customers' vehicles and trailers and that duty extended to members of the traveling public. Additionally, the Oullas argued Super-Sod owed them a duty of care under common law principles. Super-Sod argued it had no legal duty to the Oullas under the statute or otherwise and its conduct was not the proximate cause of the Oullas' injuries. The circuit court granted Super-Sod's motion for summary judgment, finding Super-Sod did not owe the Oullas a duty of care under section 56-5-4100 or the common law, and even if it did, Super-Sod's conduct was not the proximate cause of the accident.

         The Oullas filed a motion to reconsider under Rule 59(e), SCRCP, which the circuit court denied. The Oullas filed a notice of appeal. While the appeal was pending, the Oullas filed a motion for relief from judgment pursuant to Rule 60(b), SCRCP. In their motion, the Oullas argued the circuit court failed to rule on their motion to amend their complaint. Further, the Oullas argued that although their motion was made pursuant to Rule 60(b), it should be considered under the more lenient standard of Rule 15.

         The circuit court denied the Oullas' motion for relief from judgment, finding the Oullas failed to show any mistake, inadvertence, or excusable neglect sufficient to award relief under Rule 60(b). Further, the circuit court stated that even if the motion was considered under the more lenient standard of Rule 15, the Oullas' motion would still fail because adding the claim for breach of warranty of merchantability would unfairly prejudice Super-Sod and the amendment alleging a duty of care under section 56-5-4100 would be futile in light of the circuit court's prior grant of summary judgment on that issue. This appeal followed.

         LAW/ANALYSIS

         I. Motion to Amend the Complaint

         The Oullas argue the circuit court abused its discretion by denying their motion to amend under Rule 60(b) because the circuit court should have considered their motion to amend under Rule 15 instead of Rule 60(b). We disagree.

         A denial of a motion to amend under Rule 15 or a motion under Rule 60(b) is within the sound discretion of the circuit court. See Bowman v. Bowman, 357 S.C. 146, 151, 591 S.E.2d 654, 656 (Ct. App. 2004) (holding a Rule 60(b) motion is subject to abuse of discretion review); Sullivan v. Hawker Beechcraft Corp., 397 S.C. 143, 153, 723 S.E.2d 835, 840 (Ct. App. 2012) (holding a Rule 15 motion is subject to abuse of discretion review). Because both motions are subject to the sound discretion of the circuit court, they "will rarely be disturbed on appeal. The [circuit court's] finding will not be overturned without an abuse of discretion or unless manifest injustice has occurred." Sullivan, 397 S.C. at 153, 723 S.E.2d at 840 (quoting Berry v. McLeod, 328 S.C. 435, 450, 492 S.E.2d 794, 802 (Ct. App. 1997)). "An abuse of discretion occurs ...


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