Archie Bell Const. Co., Inc. v. Norman

• Decision Date: 19 January 1993
• Docket Number: No. 1944,1944
• Citation: 427 S.E.2d 689,311 S.C. 84
• Court: South Carolina Court of Appeals
• Parties: ARCHIE BELL CONSTRUCTION COMPANY, INC., Plaintiff, v. Fred Paul NORMAN and Nan N. Norman; Pat Edwards, d/b/a Edwards Electric, Inc.; Dewey Sisk, d/b/a DBS Flooring; Sonny Rabon, d/b/a Sonny's Plumbing; Citicorp Homeowners, Inc.; and The Anchor Bank, Defendants, Of Whom Fred Paul Norman and Nan N. Norman are Appellants, and Archie Bell Construction Company, Inc., and Pat Edwards, d/b/a Edwards Electric, Inc., are Respondents. . Heard

Page 689

427 S.E.2d 689

311 S.C. 84

ARCHIE BELL CONSTRUCTION COMPANY, INC., Plaintiff, v. Fred Paul NORMAN and Nan N. Norman; Pat Edwards, d/b/a

Edwards Electric, Inc.; Dewey Sisk, d/b/a DBS Flooring;

Sonny Rabon, d/b/a Sonny's Plumbing; Citicorp Homeowners,

Inc.; and The Anchor Bank, Defendants,

Of Whom Fred Paul Norman and Nan N. Norman are Appellants,

and

Archie Bell Construction Company, Inc., and Pat Edwards,

d/b/a Edwards Electric, Inc., are Respondents.

No. 1944.

Court of Appeals of South Carolina.

Heard Jan. 19, 1993.

Decided Feb. 16, 1993.

Rehearing Denied March 16, 1993.

Certiorari Granted Oct. 21, 1993.

John R. Clarke and William Isaac Diggs, N. Myrtle Beach, for appellants.

Frederick C. Parsons, III and Stephen C. Ouverson, Surfside Beach, and O. Terry Beverly, Conway, for respondents.

GOOLSBY, Judge:

Archie Bell Construction Company, Inc., brought this action against Fred Paul Norman and Nan N. Norman for foreclosure of its mechanic's lien, for breach of contract, and for breach of contract accompanied by a fraudulent act. The Normans requested a setoff and counterclaimed for damages. The trial court consolidated Bell Construction's action with an action by Edwards Electric, Inc., to foreclose its mechanic's lien and to recover an amount due for electrical work it performed on the Normans' property as a Bell Construction subcontractor. At the close of the evidence, the trial judge directed a verdict in favor of Edwards Electric in the amount of $6,365.50. The Normans appeal the verdict directed by the trial judge in favor of Edwards Electric and the verdict returned by the jury in favor of Bell Construction in the amount of $40,651.24. We affirm the jury verdict in favor of Bell Construction, reverse the directed verdict in favor of Edwards Electric, and remand for a new trial in the case brought by Edwards Electric.

I.

The first issue, which the Normans apparently direct to both Bell Construction and Edwards Electric, concerns the trial judge's refusal to allow the Normans to use the deposition testimony of their expert witness, James M. Strickland.

On Monday, October 22, 1990, the sixth day of the trial, the Normans' attorney told the court that Strickland had left the county over the weekend because of the death of his mother in Greenville, South Carolina, more than 100 miles away. Strickland had been subpoenaed. He was to have testified concerning alleged violations of the electrical building code and of faulty installations and repair of electrical fixtures. He was also to testify about a worker being shocked because of allegedly defective work done by Edwards Electric.

The following day, Tuesday, October 23, 1990, the Normans sought to introduce the deposition pursuant to Rule 32(a)(3)(B), SCRCP. The rule provides, "The deposition of a witness ... may be used by any party for any purpose if the court finds ... (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing...."

Although he did not say why, the trial judge would not permit the deposition testimony "to go to the jury." The trial judge simply allowed the Normans to proffer the deposition and directed the reporter, as the record reflects, to mark the deposition as an exhibit "for identification purposes only" and to make it "a part of the record."

The trial judge's ruling, contrary to the Normans' argument, was not necessarily inconsistent with his remarks, made the day before, that "to protect it on the record, I'll let you put certain portions of his deposition [in]." [Emphasis added.] These remarks came directly after counsel for Edwards Electric objected to the admissibility of Strickland's deposition on the ground that "there has been no showing that he is more than 100 miles from the place...."

We find no reversible error, irrespective of what the trial judge meant by his earlier remarks. The Normans made no showing, by affidavit, sworn testimony, or other evidence, as they were required to do in the absence of a stipulation regarding Strickland's whereabouts, that Strickland's mother had died and that Strickland, as a consequence, was at the time the Normans proffered...