Collins Entertainment, Inc. v. White (2005)

Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("It is well established that a motion to amend is addressed to the discretion of the trial judge, and the party opposing the motion has the burden of establishing prejudice."); id. ("Amendments to conform to the proof should be liberally allowed when no prejudice to the opposing party will result."). 5.

Our court has espoused this rationale, stating, “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Collins Entm’t, Inc. v. White, 363 S.C. 546, 564 , 611 S.E.2d 262, 271 (Ct. App. 2005) (quoting State v. Capps, 276 S.C. 59, 65 , 275 S.E.2d 872, 875 (1981) (Lewis, C.J., dissenting)).

Auth., 353 S.C. 639, 645 , 579 S.E.2d 151, 154 (Ct. App. 2003) ("South Carolina has long had the discovery rule that failure to respond to requests for admissions renders any matter listed in the request conclusively admitted for trial."); cf. Nexstar Media Grp., Inc. v. Davis Roofing Grp., LLC, 431 S.C. 593 , 603, 848 S.E.2d 597 , 602 (Ct. App. 2020) ("However, South Carolina jurisprudence also establishes a trial court may use its discretion in finding requests to admit ar…

"It is well established that a motion to amend is addressed to the discretion of the trial [court], and the party opposing the motion has the burden of establishing prejudice." Collins Ent., Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005).

See Heins v. Heins, 344 S.C. 146, 152 , 543 S.E.2d 224, 227 (Ct. App. 2001) ("It is well settled that ordinarily[,] a party may not receive relief not contemplated in his or her pleadings."); Collins Ent., Inc. v. White, 363 S.C. 546, 563 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("The failure to plead an affirmative defense is deemed a waiver of the right to assert it.").

Elec. & Gas, Inc., 362 S.C. 445 , 454–55, 608 S.E.2d 859, 864 (2005) ("It is well established that a party pleading an affirmative defense has the burden of proving it."); see also Collins Entm't, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("[E]stoppel must be affirmatively pled as a defense . . . .").

As to whether the special referee erred by awarding Outlaw $17,965 in damages: QHG of Lake City, Inc. v. McCutcheon, 360 S.C. 196, 202 , 600 S.E.2d 105, 108 (Ct. App. 2004) ("In a law action, the measure of damages is determined by the parties' agreement, while in equity, 'the measure of the recovery is the extent of the duty or obligation imposed by law, and is expressed by the amount which the court considers the defendant has been unjustly enriched at the expense of the p…

See Rule 8(c), SCRCP; Collins Entm't, Inc. v. White, 363 S.C. 546, 563 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("[T]he failure to plead an affirmative defense is deemed a waiver of the right to assert it.").

As to whether the Master erred in awarding Verrilli $87,967 in damages: Collins Entm't, Inc. v. White , 363 S.C. 546, 559 , 611 S.E.2d 262, 268-69 (Ct. App. 2005) ("In a breach of contract action, damages serve to place the nonbreaching party in the position he would have enjoyed had the contract been performed. . . .

Wright v. Craft, 372 S.C. 1, 21 , 640 S.E.2d 486, 497 (Ct. App. 2006) ("[E]stoppel must be affirmatively [pleaded] as a defense and cannot be bootstrapped onto another claim." (alterations in Wright) (quoting Collins Entm't, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005))).

Bd. of Dentistry, 403 S.C. 623, 632 , 743 S.E.2d 808, 813 (2013) (finding the circuit court properly denied party's motion to add a cause of action to its complaint because amendment did not occur until three years after filing of complaint and undertaking of extensive discovery, particularly when there were no significant factual developments that warranted the untimely amendment); Jennings v. Jennings, 389 S.C. 190, 209 , 697 S.E.2d 671, 681 (Ct. App. 2010) rev'd on other …

Collins Entm't, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005).

We agree. “[E]stoppel must be affirmatively pled as a defense and cannot be bootstrapped onto another claim.” Collins Entm’t, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct.App.2005).

Because the appellate court lacks the opportunity for direct observation of the witnesses, it should accord great deference to trial court findings where matters of credibility are involved." (citations omitted)); cf. Cannon v. Ga. Att'y Gen.'s Office, 397 S.C. 541 , 725 S.E.2d 698, 704 (2012) (modifying the circuit court's award of attorney's fees to reduce it by the amount incurred in matters unrelated to conduct for which the estate's personal representative was sanctione…

As to whether the trial court erred by denying Warren's motion to amend the pleadings: Rule 15(a), SCRCP (providing that when more than thirty days have passed since a responsive pleading is served, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party"); Hale v. Finn , 388 S.C. 79, 87-88 , 694 S.E.2d 51, 56 (Ct. App. 2010) ("Courts hav…

Collins Entm't, Inc. v. White , 363 S.C. 546, 559 , 611 S.E.2d 262, 269 (Ct. App. 2005).

This issue is not preserved for our review. “[E]stoppel must be affirmatively pled as a defense and cannot be bootstrapped onto another claim.” Collins Entm’t, Inc. v. White , 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005).

Ventures, Inc., 934 S.W.2d at 221 ; cf. Collins Entertainment, Inc. v. While, 363 S.C. 546 , 611 S.E.2d 262, 271 (S.C.Ct.App.2005) (upholding district court order that counsel either proceed as attorney or fact witness).

Collins Entm’t., Inc. v. White, 363 S.C. 546, 559 , 611 S.E.2d 262, 268-69 (Ct.App.2005).

Collins Entertainment, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct.App.2005).

Collins Entm’t, Inc. v. White , 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005).

Issue 2: As to the master raising sua sponte affirmative defenses on behalf of the Respondents: Heins v. Heins , 344 S.C. 146, 152 , 543 S.E.2d 224, 227 (Ct. App. 2001) (“It is well settled that ordinarily a party may not receive relief not contemplated in his or her pleadings.”); Collins Entertainment, Inc. v. White , 363 S.C. 546, 563 , 611 S.E.2d 262, 270 (Ct. App. 2005) (“[T]he failure to plead an affirmative defense is deemed a waiver of the right to assert it.”).

“Every defense, in law or fact, to a cause of action in any pleading, whether a claim, counterclaim, cross-claim, or third- *21 party claim, shall be asserted in the responsive pleading thereto.... ” Rule 12, SCRCP. “[Ejstoppel must be affirmatively [pleaded] as a defense and cannot be bootstrapped onto another claim.” Collins Entm’t, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct.App.2005) (citing Rule 8, SCRCP); Provident Life & Accident Ins.

See Collins Ent., Inc. v. White, 363 S.C. 546, 559 , 611 S.E.2d 262, 269 (Ct. App. 2005) ("Generally, in order for damages to be recoverable, the evidence should be such as to enable the court or jury to determine the amount thereof with reasonable certainty or accuracy.

See Collins Entm't, Inc. v. White, 363 S.C. 546, 560 , 611 S.E.2d 262, 269 (Ct. App. 2005) (finding the circuit court properly granted a directed verdict motion for breach of contract because any calculation of damages by the jury would have been pure speculation).

See Lee v. Bunch, 373 S.C. 654, 661 , 647 S.E.2d 197, 201 (2007) (“The prejudice that would warrant denial of a motion to amend the pleadings is a lack of notice that a new issue is to be tried and a lack of opportunity to refute it.” (citing Collins Entm’t, Inc. v. White, 363 S.C. 546, 562 , 611 S.E.2d 262, 270 (Ct. App. 2005))); Holland ex rel.

See Collins Entm’t, Inc. v. White, 611 S.E.2d 262, 271 (S.C.