Galloway v. Regis Corp., 2623

• Decision Date: 07 November 1996
• Docket Number: No. 2623,2623
• Citation: 325 S.C. 541,481 S.E.2d 714
• Parties: Tera Ann GALLOWAY, Respondent, v. REGIS CORPORATION, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 714

481 S.E.2d 714

325 S.C. 541

Tera Ann GALLOWAY, Respondent, v. REGIS CORPORATION, Appellant.

No. 2623.

Court of Appeals of South Carolina.

Heard Nov. 7, 1996.

Decided Jan. 27, 1997.

Review Dismissed March 5, 1997.

Saunders M. Bridges, Jr., of Bridges, Orr, Derrick & Ervin, Florence, for appellant.

Manning Y. Culbertson, of Culbertson, Christophillis & Sauvain; and David H. Wilkins, of Wilkins & Madden, Greenville, for respondent.

PER CURIAM:

Regis Corporation (Regis) appeals from an order compelling enforcement of a settlement agreement purportedly reached between Regis and Respondent Tera Ann Galloway (Galloway). We reverse and remand.

I.

In September 1992, Galloway brought a personal injury suit against Regis, alleging she fell in Regis's retail establishment. Galloway and Regis entered into informal settlement negotiations but reached no resolution. After Regis and Galloway learned that the case was on the docket for the September 1994 term of court, they agreed to engage in formal mediation of the case. The mediation took place on August 23, 1994.

According to Galloway, the parties reached a final settlement of the case during the mediation, with Regis agreeing to pay Galloway $190,000. While no formal settlement agreement was signed, Galloway contends the terms of the settlement were reflected in notes written by Regis's attorney during the mediation. After the mediation, the parties informed the clerk of court that the case had been settled. A form order dismissing the case as settled was entered on September 7, 1994. Galloway contends that, despite repeated requests, Regis refused to disburse the agreed-upon funds.

Not unexpectedly, Regis paints a dramatically different picture of the case. According to Regis, documenting of Galloway's claimed loss of earning capacity had been a major obstacle throughout the settlement negotiations. During the August mediation session, Galloway for the first time stated she had tax returns that would support her lost earnings claim. Regis contends that while no agreement was reached at the mediation, the parties reached an agreement several days later. According to Regis, the parties agreed that Regis would pay Galloway $190,000 in exchange for a complete release of Galloway's claims. However, the agreement was conditioned upon receipt by Regis of Galloway's tax returns substantiating the income levels claimed by Galloway at the mediation. Galloway could not produce the required tax returns, and the assorted receipts and other documentation provided to Regis did not support the income levels claimed by Galloway. Because Galloway did not satisfy the condition precedent to settlement of the case, Regis refused to disburse the settlement funds to Galloway.

In an effort to resolve their dispute over the settlement agreement, the parties attempted to reinstate the case on the jury trial docket. Because of an administrative error, the consent order seeking reinstatement was never entered. Thereafter, Galloway filed a motion seeking to compel Regis to comply with the settlement agreement. The lower court concluded that, at the August mediation, the parties had in fact agreed to settle the case for $190,000, payable immediately. The lower court ordered Regis to comply with the terms of the settlement agreement by paying $190,000 as agreed during settlement negotiations, plus pre-judgment interest at 8.75 percent and post-judgment interest at 14 percent. The court also ordered Regis to pay Galloway $1,253.25 in attorney's fees and costs incurred in connection with her motion to compel. This appeal followed.

II.

On appeal, Regis contends the trial court erred in enforcing the settlement agreement. We agree.

Assuming without deciding that the parties did in fact firmly agree to settle Galloway's claim for $190,000, the trial court nonetheless erred in enforcing the agreement. In Widewater Square Assocs. v. Opening Break of America, Inc., 319 S.C. 243, 460 S.E.2d 396 (1995), and Ashfort Corp. v. Palmetto Constr. Group, Inc., 318 S.C. 492, 458 S.E.2d 533 (1995), our Supreme Court held that Rule 43(k) of the South Carolina Rules of Civil Procedure applied to settlement agreements. Rule 43(k) provides that "[n]o agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record." Rule 43(k), SCRCP. To comply with the requirements of Rule 43(k), "the order or written stipulation must set forth the terms of the settlement." Ashfort, 318 S.C. at 495, 458 S.E.2d at 535.

In this case, there simply is no consent order or other writing that reveals the terms of the settlement. The form order issued on September 7 merely indicates that the case was settled; it does not reflect the terms of the settlement. See Ashfort, 318 S.C. at 495, 458 S.E.2d at 535 (form order showing that case was settled does not satisfy Rule 43(k)'s writing requirement). The correspondence between the attorneys after the mediation is likewise silent as to the terms of the settlement agreement. ¹ The trial court, therefore, erred by ordering enforcement of the oral agreement.

Galloway argues, however, that certain notes written during the mediation by Regis's attorney or insurance adjuster satisfy Rule 43(k)'s writing requirement. We disagree.

The notes to which Galloway refers are hand-written calculations of damages and are contained on a single page in the record. The top part of the page is a listing of categories of damages (general damages, lost wages, etc.) and corresponding dollar figures, which total $186,279.88. Beside this...