THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ronald R. Hall,        Respondent,

v.

Arthur Keels,        Appellant.

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2003-UP-730
Submitted October 15, 2003 � Filed December 16, 2003

AFFIRMED

Arthur Keels, of Blythewood, for Appellant.

Ronald R. Hall, of West Columbia, for Respondent.

PER CURIAM:� Arthur H. Keels appeals from the trial court�s grant of summary judgment to his former attorney Ronald R. Hall on Keel�s counterclaims.� We affirm.�

FACTUAL/PROCEDURAL BACKGROUND

Hall represented Keels in a personal injury action against the owners of a dog that bit Keels.�� By letter dated November 7, 1996, Hall informed Keel�s treating physician, Dr. Thomas Trancik of the lawsuit and asked Dr. Trancik to provide him with a copy of Keels�s medical records pursuant to a release signed by Keels that read, �I have directed Mr. Hall to protect your interest from any jury verdict or settlement reached in this matter.�� After receiving this letter, Dr. Trancik decided not to resubmit his bill for $9,927.95 to Medicare, which had denied the bill for failure to include supporting documentation in the form of operative notes for each wound debridement and failing to sign the bill.� Rather, Dr. Trancik submitted the bill to Hall in hopes of receiving payment through the lawsuit.�

In May of 1998, Keels settled his lawsuit against the owners of the dog for $19,500.00.� Keels signed a settlement statement, which provided Dr. Trancik would receive $9,927.95, Hall would receive $3,500.00, and Keels would receive the remaining $6,072.05.� Keels later instructed Hall not to turn over the $9,927.95 to Dr. Trancik due to Keels�s disagreement over the bill.�

Hall thereafter brought a declaratory judgment action against Keels and Dr. Trancik seeking an order declaring that the $9,927.95 belonged to Dr. Trancik and authorizing Hall to release these funds to Dr. Trancik.� Keels answered, denying Dr. Trancik was entitled to the funds because he had already been paid by Medicare and �the ridiculous amount over and above what Medicare approved constitutes fraud and extortion.�� He asserted he only signed the settlement statement because Hall assured him that he would not have to pay Dr. Trancik.� Keels asserted counterclaims against Hall for malpractice, negligence, incompetence, and conspiracy.� He also asserted cross-claims against Dr. Trancik for �fraud, piracy, robbery, malpractice, and lying.�� Instead of filing an answer, Hall filed a motion to dismiss the counterclaims.� On Dr. Trancik�s motion, Judge Gregory dismissed the cross-claims and ordered Hall to disburse $9,927.95 to Dr. Trancik.� Judge Gregory ruled the counter-claims against Hall would remain in effect.� This court affirmed that order. [1] �

After this court rendered its opinion, the trial court held a hearing on Hall�s motion to dismiss, treating it as one for summary judgment.� The court held Hall�s actions in representing Keels did not meet the necessary elements of malpractice or negligence.� It further dismissed Keels�s counterclaim for conspiracy. This appeal followed.�

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, the appellate courts apply the same standard that governs the trial court under Rule 56(c), SCRCP:� summary judgment is proper when �there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.�� Rule 56, SCRCP; Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).� The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party.� Id.� �The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder.�� George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001).� �It is well established that summary judgment should be granted �. . . in cases in which plain, palpable and indisputable facts exist on which reasonable minds cannot differ.��� Anders v. S.C. Farm Bureau Mut. Ins. Co., 307 S.C. 371, 373, 415 S.E.2d 406, 407 (Ct. App. 1992) (quoting Main v. Corley, 281 S.C. 525, 526, 316 S.E.2d 406, 407 (1984)); see Bloom v. Ravoira, 339 S.C. 417, 529 S.E.2d 710 (2000) (finding where a verdict was not reasonably possible under the facts presented, summary judgment was proper).

DISCUSSION

I.       Conversion of motion to dismiss to one for summary judgment.�

Keels objects to the trial court�s conversion of Hall�s motion to dismiss to one for summary judgment.� He asserts he was not even aware that it was being considered as summary judgment and was not given a chance to present any material or have any witnesses.� Keels failed to raise this issue to the trial court in a Rule 59, SCRCP motion.� Accordingly, it is not preserved for our review.� Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (�It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.�).��

�

II.       Conspiracy

The trial court dismissed Keels�s counterclaim for conspiracy.� It held that as Judge Gregory had dismissed his cross-claims against Dr. Trancik for robbery and piracy and it is impossible for Hall to conspire with himself to divest Keels of the settlement proceeds, Keels�s conspiracy claim must fail.� Keels did not appeal this ruling.� As such, it is the law of the case. See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (holding an unappealed ruling becomes the law of the case and precludes further consideration of the issue on appeal).� Accordingly, we affirm the trial court�s dismissal of Keels�s counterclaim for civil conspiracy.�

III.      Malpractice and negligence

Many of Keels�s issues on appeal concern the validity of Dr. Trancik�s bill and Dr. Trancik�s alleged violation of Medicare laws in his submission of the bill.� These claims were addressed by Judge Gregory�s dismissal of Keels�s cross-claims against Dr. Trancik and this court�s opinion affirming that order.� This court held, �Keels is unable to challenge the reasonableness of the bill and has demonstrated no violation of the Medicare provisions.��

Keels also asserts Hall committed malpractice by convincing him to sign the settlement statement, which provided for payment to Dr. Trancik.� Before Keels retained Hall, he had agreed to pay Dr. Trancik�s medical bills.� When Keels entered the hospital, his wife signed a name to the hospital form which provided in part:� �I hereby authorize and assign payment to Baptist Medical Center at Columbia and Physicians . . . all Insurance Benefits and proceeds of any claims which I may have against any third party in connection with any event resulting in my need for outpatient services. . . .�� In requesting release of his medical records, Keels assured Dr. Trancik that his fees would be protected in any settlement.� Furthermore, in response to an interrogatory in his personal injury action asking him to state his treating physicians and medical bills incurred, he listed Dr. Trancik�s bill for $9,818.85.�

On appeal, Keels complains he was coerced into signing the settlement statement and protests Hall�s bringing the declaratory judgment action to authorize payment.� He does not argue he would not have accepted the settlement offer absent Hall�s assurance that he would not have to pay Dr. Trancik�s bill.� We agree with the trial court that Keels did not establish the elements of malpractice in Hall�s attempt to pay Dr. Trancik�s bill.

In addition, Keels contends Hall was negligent in failing to inform him that he was required to re-pay Medicare out of the settlement for any funds they had paid and informing him that he could not sue for what Medicare had paid.� However, Keels admitted in his reply brief that he did not actually have to repay Medicare.� Accordingly, as he suffered no damages from Hall�s allegedly incorrect advice, his action for malpractice must fail.� See Hubbard v. Taylor, 339 S.C. 582, 588, 529 S.E.2d 549, 552 (Ct. App. 2000) (stating the elements �of negligence are:� (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty by the defendant, and (3) damages proximately resulting from the breach of duty.�).

IV.     Conclusion

We find the trial court did not err in granting summary judgment to Hall on Keels claims for conspiracy, malpractice, and negligence.� Accordingly, the order of the trial court is

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.�