" 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 when the [circuit court]'s ruling is based upon an error of law or, when based upon factual conclusions, is without evidentiary support." Fontaine v. Peitz , 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987). Under Rule 15(a), SCRCP :
An abuse of discretion occurs when there is an error of law or factual conclusion that is without evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987); Burroughs, 352 S.C. at 391, 574 S.E.2d at 219; Hedgepath v. Amer. Tel. Tel. Co., 348 S.C. 340, 353, 559 S.E.2d 327, 334 (Ct.App. 2001); Bayle v. South Carolina Dep't ofTransp., 344 S.C. 115, 128, 542 S.E.2d 736, 742 (Ct.App. 2001). A court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion where the ruling is manifestly arbitrary, unreasonable, or unfair.
Where a court is clothed with discretion, but rules as a matter of law, the appealing party is entitled to have the matter reconsidered and passed on as a discretionary matter.Fontaine v. Peitz, 291 S.C. 536, 538-39, 354 S.E.2d 565, 566-67 (1987) (citations omitted). In making a determination based on Rule 612(2), the trial court must be guided by the interests of justice.
A reviewing court may find abuse of discretion where an appellant shows that the lower court's conclusion is based upon an error of law or without evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987). "When a trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred."
In Hodge v. Pollock, 223 S.C. 342, 348, 75 S.E.2d 752, 754-55 (1953), in which the Supreme Court similarly reviewed a circuit court decision based on a writ of certiorari to a zoning board, the court quoted 58 Am.Jur. Zoning Section 231, saying, "[T]he decision of the zoning board will not be upheld where it is based on errors of law, or fraud, or where there is no legal evidence to support it, or where the board acts arbitrarily or unreasonably, or in a discriminatory manner or where, in general, the board has abused its discretion." More recently, in Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987), the Supreme Court specifically addressed the circuit court's review of a decision by a zoning board, stating, "The circuit court should not disturb the findings of the board unless the board has acted arbitrarily or in an obvious abuse of discretion, or unless the board has acted illegally or in excess of its lawfully delegated authority." The court then explained that "[a]n abuse of discretion occurs when [a decision] is based upon an error of law or, when based upon factual conclusions, is without evidentiary support.
See State v. Hawes, 411 S.C. 188, 191, 767 S.E.2d 707, 708 (2015) ("A failure to exercise discretion amounts to an abuse of that discretion." (quoting Samples v. Mitchell, 329 S.C. 105, 112, 495 S.E.2d 213, 216 (Ct. App. 1997))); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred."). We address whether this error warrants a new trial in section III.
(quoting Samples v. Mitchell , 329 S.C. 105, 112, 495 S.E.2d 213, 216 (Ct. App. 1997) )); Fontaine v. Peitz , 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred."). The exercise of discretion is not to simply make a decision.
Further, the circuit court failed to exercise its discretion by not applying the four-part test to determine whether the motion was timely. See Callen v. Callen, 365 S.C. 618, 627, 620 S.E.2d 59, 64 (2005) ("When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred.") (quoting Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987)). I would thus remand the case to the circuit court with instructions to apply the four-part test.
An abuse of discretion occurs when the trial court's ruling is based upon factual conclusions that are without evidentiary support or when the trial court's decision is based upon an error of law. Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987). In the instant case, the trial court's conclusion that Bland and Richter did not willfully violate the protective order is without evidentiary support.
Data Sys. Corp.v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992) ("The cardinal rule of statutory construction is that words used therein must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation."); Issues 4 and 5: Gurganious v.City of Beaufort, 317 S.C. 481, 490, 454 S.E.2d 912, 918 (Ct.App. 1995) ("While a property owner has a constitutionally protected right to continue the use following enactment of a zoning ordinance, provisions terminating the nonconforming use upon destruction of a specified portion of the premises . . . are proper, so long as the maximum amount of destruction permitted and the time allowed is reasonable."); and Issues 7 and 8: Purdy v. Moise, 223 S.C. 298, 302, 75 S.E.2d 605, 607 (1953) ("[A local zoning board's] construction of its own ordinance, the enforcement of which it is charged with, should be given some consideration and not overruled without cogent reason therefore."); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("The circuit court should not disturb the findings of the board unless the board has acted arbitrarily or in an obvious abuse of discretion, or unless the board has acted illegally or in excess of its lawfully delegated authority."). AFFIRMED.