Bell v. White, 21928
| Decision Date | 24 May 1983 |
| Docket Number | No. 21928,21928 |
| Citation | 303 S.E.2d 242,279 S.C. 153 |
| Court | South Carolina Supreme Court |
| Parties | W.C. BELL and Davis O. Heniford, Jr., Appellants, v. Malcolm E. WHITE and Bob Bible, Respondents. |
Stevens, Stevens & Thomas, Loris, for appellants.
D.W. Green, Jr., of Burroughs, Green & Sasser, Conway; and Howell V. Bellamy, Jr., of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondents.
Appeal is from an order of the lower court denying appellants' motion to reinstate a cause of action previously dismissed by reason of a voluntary nonsuit.
This action was instituted by appellants to require specific performance of an alleged option agreement. Apparently the option lapsed after the suit was begun, rendering moot appellants' prayer for specific performance. After the court denied the motion by appellants to amend their complaint, appellants, agreeably to respondents, obtained an order of voluntary nonsuit without prejudice.
Shortly after the order of nonsuit was filed, respondent Malcolm E. White instituted an action against appellants for alleged abuse of process arising out of the action in which the order of voluntary nonsuit had been previously taken. Appellants then moved to set aside the voluntary nonsuit and to reinstate the original cause of action on the ground that the nonsuit had been entered through mistake and excusable neglect (Section 15-27-130, 1976 Code of Laws). They alleged that the voluntary nonsuit was based upon the oral assurances by counsel for respondents that the nonsuit would terminate the controversy between the parties. The trial court denied the motion and we affirm.
The voluntary nonsuit was entered without prejudice and, therefore, did not alone preclude the institution of the action for abuse of process. Appellants seek relief from the voluntary nonsuit solely upon the alleged oral agreement between counsel that the voluntary nonsuit terminated all of the controversy between the parties. The affidavits filed by counsel show that they are in sharp disagreement as to whether there was an understanding as alleged by appellants. Since counsel disagree as to the alleged agreement and did not reduce it to writing, it is rendered, in any event, of no binding effect under Rule 14 of the Circuit Court Rules, which provides:
Consent must be in writing. --No agreement or consent between the parties, or their attorneys, in respect to the proceedings in a cause shall be...
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Ashfort Corp. v. Palmetto Const. Group, Inc., 24253
...law applying former Circuit Court Rule 14 to settlement agreements, Small v. Small, 286 S.C. 87, 332 S.E.2d 769 (1985); Bell v. White, 279 S.C. 153, 303 S.E.2d 242 (1983), and with a majority of the decisions applying similar provisions in other states. 2 Canyon Contracting Co. v. Tohono O'......