Freeman v. McBee, 0088
| Decision Date | 21 February 1984 |
| Docket Number | No. 0088,0088 |
| Citation | 280 S.C. 490,313 S.E.2d 325 |
| Court | South Carolina Court of Appeals |
| Parties | Clarence Olin FREEMAN, Respondent, v. Patricia A. McBEE, formerly Patricia A. Freeman, Appellant. |
William J. Barnes, Greenville, for appellant.
Andrew L. Abrams of Abrams, Bowen & Parham, Greenville, for respondent.
This action was commenced in 1978 with each party seeking a divorce from the other. After the serving of a petition and a cross-petition and after the issuance of a temporary order, the parties entered into a property settlement agreement which settled all issues involved except the matter of divorce. However, the agreement failed to specifically mention real property located on Halton Road. This property was being purchased under a bond for title/contract in the names of both parties. The house located on the property had initially served as the parties' home and was currently being used by the respondent, Mr. Freeman, as his place of business.
On August 4, 1978, Mr. Freeman filed an affidavit of default as Mrs. McBee had failed to answer his cross-petition within the required time period.
On August 10, 1978, the appellant, Mrs. McBee, filed an amended complaint. Among other things, Mrs. McBee sought an interest in the Halton Road property for the first time.
On August 22, 1978, the court, with Mrs. McBee's consent, dismissed her amended complaint with prejudice as the parties had reached an agreement on all issues concerned in the dismissed pleadings.
On August 24, 1978, Mrs. McBee's attorney sent a letter to Mr. Freeman's attorney advising him that all of Mrs. McBee's pleadings had been withdrawn and that Mr. Freeman was authorized to proceed.
On August 31, 1978, Mr. Freeman was granted a default divorce on his cross-petition. The parties' property settlement agreement was incorporated into the divorce decree. In addition, the court stated that Mrs. McBee will have "no interest in any business property that the respondent (Mr. Freeman) may own or is in the process of purchasing". She did not appeal this order.
On March 10, 1981, Mr. Freeman petitioned the court seeking to have Mrs. McBee held in contempt for refusing to sign the necessary papers removing her name from the bond for title on the Halton Road property. On March 24, 1981, Mrs. McBee answered the petition claiming that the court lacked jurisdiction to issue an order concerning the Halton Road property because, among other things, Mr. Freeman had failed to request such relief in his pleadings. Mrs. McBee requested that that part of the divorce decree be vacated and that she be awarded reasonable attorney's fees.
A hearing was held on March 24, 1981. By an order dated April 29, 1981, the court found that it had jurisdiction, found that Mrs. McBee had waived her interest in the Halton Road property by consenting to the dismissal of her pleadings with prejudice, ordered her to execute the necessary documents to effectuate the waiver of interest and denied her any attorney's fees.
Bonnette v. State, 277 S.C. 17, 282 S.E.2d 597 at 598 (1981). Mrs. McBee consented to the dismissal of her amended complaint with prejudice. This complaint contained the request for an interest in the Halton Road property. By so consenting, Mrs. McBee waived any interest she had in that property. The two and one-half year wait by Mrs. McBee before raising the issue of the effect of her consent to dismiss with prejudice is totally inconsistent with any assertion of an interest in the property and is further evidence of an intentional relinquishment.
By filing the amended complaint requesting an...
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...operates as an adjudication on the merits terminating the action and concluding the rights of the parties. See Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct.App.1984). Because Wood/Chuck had been dismissed with prejudice, it could not be liable to Causey for his injury. Vermeer did not......
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