Burry & Son Homebuilders, Inc. v. Ford, No. 23757

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTOAL; HARWELL
Decision Date14 December 1992
PartiesBURRY & SON HOMEBUILDERS, INC., Appellant, v. Denny FORD, Respondent.
Docket NumberNo. 23757

Page 313

426 S.E.2d 313
310 S.C. 529
BURRY & SON HOMEBUILDERS, INC., Appellant,
v.
Denny FORD, Respondent.
No. 23757.
Supreme Court of South Carolina.
Submitted Oct. 27, 1992.
Decided Dec. 14, 1992.

William C. Cleveland of Haynsworth, Marion, McKay & Guerard, Charleston, for appellant.

Charles S. Goldberg, and J. Kevin Holmes of Steinberg, [310 S.C. 530] Spitz, Goldberg, Pearlman, Holmes, White & O'Neill, Charleston, for respondent.

Page 314

TOAL, Justice:

The issue presented in this appeal is whether the trial court erred in refusing to grant the plaintiff's motion for a voluntary dismissal and in granting the defendant's motion for summary judgment on the basis that the plaintiff, an unlicensed residential builder, could not maintain this suit for breach of contract. We affirm.

FACTS

Appellant, Burry & Sons Homebuilders ("Burry"), brought this action for breach of contract, asserting that Denny Ford ("Ford") contracted with Burry for residential improvements on his home after Hurricane Hugo. Ford answered by way of a general denial, and further asserted Burry was not entitled to enforce the contract since Jim Burry, the president and major shareholder of Burry, is an unlicensed residential builder. Ford also alleged Burry's defective workmanship required subsequent work entitling him to a set-off. On January 11, 1991, Ford filed a motion to amend his answer to assert a counterclaim for damages resulting from Burry's defective workmanship. Ford also moved for summary judgment on Burry's complaint. In support of his motion for summary judgment, Ford submitted an affidavit in which a special investigator for the South Carolina Residential Builders' Commission declared Jim Burry is not licensed. The affiant further declared one hourly employee of Burry is licensed, but this employee worked on the house only two days and did not use his license to do the work. On January 29, Burry filed a motion for a voluntary dismissal without prejudice.

A hearing was held on July 25, 1991, on all three motions. The parties orally argued the voluntary dismissal issue. The trial court denied Burry's motion for voluntary dismissal, granted Ford's motion to amend to assert a counterclaim, and granted Ford's motion for summary judgment. Burry appeals [310 S.C. 531] the denial of the voluntary dismissal and the granting of the summary judgment.

LAW/ANALYSIS

Generally, the plaintiff is entitled to a voluntary non-suit without prejudice as a matter of right unless legal prejudice is shown...

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5 practice notes
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • 14 Abril 2003
    ...leave of court before the defendant 354 S.C. 302 files an answer or motion for summary judgment. Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 (1992); In re Morrison, 321 S.C. 370, 373, 468 S.E.2d 651, 652-53 (1996) ("[U]nder the plain language of paragraph (a)(1), a ......
  • Hunt v. Branch Banking & Trust Co., Civil Action No.: 4:12-2216-MGL-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 13 Marzo 2013
    ...of court before the defendant files an answer or before a motion for summary judgment is filed. Burry & Son Homebuilder, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 (1992). In this matter, neither an answer nor a motion for summary judgment had been filed. In fact, Plaintiff acknowledged an ......
  • Lenz v. Walsh, No. 3930.
    • United States
    • Court of Appeals of South Carolina
    • 24 Enero 2005
    ...S.C. 647, 244 S.E.2d 217 (1978); Wagner v. Graham, 296 S.C. 1, 370 S.E.2d 95 (Ct.App.1988). 4. See Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 5. Duckworth, 270 S.C. at 649, 244 S.E.2d at 218. 6. 97 N.C.App. 291, 388 S.E.2d 221 (N.C.Ct.App.1990). 7. Id. at 222-23. 8......
  • Lenz v. Walsh, No. 3930 (NC 1/24/2005), No. 3930
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 24 Enero 2005
    ...647, 244 S.E.2d 217 (1978); Wagner v. Graham, 296 S.C. 1, 370 S.E.2d 95 (Ct. App. 1988). 4. See Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 5. Duckworth, 270 S.C. at 649, 244 S.E.2d at 218. 6. 388 S.E.2d 221 (N.C. Ct. App. 1990). 7. Id. at 222-23. 8. See, e.g., Hodg......
  • Request a trial to view additional results
5 cases
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • 14 Abril 2003
    ...of court before the defendant 354 S.C. 302 files an answer or motion for summary judgment. Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 (1992); In re Morrison, 321 S.C. 370, 373, 468 S.E.2d 651, 652-53 (1996) ("[U]nder the plain language of paragraph (a)(1),......
  • Lenz v. Walsh, No. 3930.
    • United States
    • Court of Appeals of South Carolina
    • 24 Enero 2005
    ...647, 244 S.E.2d 217 (1978); Wagner v. Graham, 296 S.C. 1, 370 S.E.2d 95 (Ct.App.1988). 4. See Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 5. Duckworth, 270 S.C. at 649, 244 S.E.2d at 218. 6. 97 N.C.App. 291, 388 S.E.2d 221 (N.C.Ct.App.1990). 7. Id. at 222-23. 8.......
  • Hunt v. Branch Banking & Trust Co., Civil Action No.: 4:12-2216-MGL-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 13 Marzo 2013
    ...of court before the defendant files an answer or before a motion for summary judgment is filed. Burry & Son Homebuilder, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 (1992). In this matter, neither an answer nor a motion for summary judgment had been filed. In fact, Plaintiff acknowledged......
  • Lenz v. Walsh, No. 3930 (NC 1/24/2005), No. 3930
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 24 Enero 2005
    ...244 S.E.2d 217 (1978); Wagner v. Graham, 296 S.C. 1, 370 S.E.2d 95 (Ct. App. 1988). 4. See Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 5. Duckworth, 270 S.C. at 649, 244 S.E.2d at 218. 6. 388 S.E.2d 221 (N.C. Ct. App. 1990). 7. Id. at 222-23. 8. See, e.g., Hodge......
  • Request a trial to view additional results

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