Georganne Apparel, Inc. v. Todd, No. 1563

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 399 S.E.2d 16,303 S.C. 87
• Parties: GEORGANNE APPAREL, INC., Appellant, v. George Mack TODD, Shirley Todd, Lake City Manufacturing Company, Inc., Georganne Ltd., Travis Matthews, Dal Felkel and Associates, and Anderson State Bank, Respondents. . Heard
• Decision Date: 10 September 1990
• Docket Number: No. 1563

Page 16

399 S.E.2d 16 303 S.C. 87 GEORGANNE APPAREL, INC., Appellant,
v.
George Mack TODD, Shirley Todd, Lake City Manufacturing
Company, Inc., Georganne Ltd., Travis Matthews,
Dal Felkel and Associates, and Anderson
State Bank, Respondents. No. 1563. Court of Appeals of South Carolina. Heard Sept. 10, 1990.
Decided Oct. 29, 1990.

[303 S.C. 88] J. Edward Bell, III of Bell & Bagley, Sumter, for appellant.

Page 17

Finley B. Clarke of Clarke & Johnson, Florence, Susan Taylor Wall and Warren Ariail of Holmes & Thompson, Charleston, Charles E. Godwin, Lake City and Duvall W. Spruill, Columbia, for respondents.

PER CURIAM:

On January 31, 1986 Georganne Apparel, Inc., Plaintiff-Appellant filed its initial complaint against Defendants-Respondents, George Mack Todd, Shirley Todd, Lake City Manufacturing Company, Inc., Georganne Ltd., Travis Matthews, and Dal Felkel and Associates (and others no longer involved in this case) alleging conversion, unfair trade practices, breach of fiduciary duty and professional malpractice. On November 30, 1988 the court, speaking through Judge Carol Connor, acting on defense motions, dismissed all causes of action with prejudice. Plaintiff appeals; we affirm.

A detailed history of the litigation and the delays incident thereto is necessary for an understanding of the court's dismissal.

In September 1986 the trial court, at Plaintiff's request, struck the case from the trial roster pursuant to SCRCP, Rule 40(c)(3). In September 1987 the trial court, at Plaintiff's request, restored the case to the trial roster. On February 22, 1988 Plaintiff along with Matthews and Dal Felkel (referred to as "Accountants") entered into a consent order whereby [303 S.C. 89] Plaintiff agreed to limit its claim against the Accountants to professional negligence only.

On May 16, 1988 the trial court, upon a motion by Accountants, issued an order precluding Plaintiff from calling its designated accounting expert as a witness because Plaintiff had failed to cooperate with Accountants in setting up a deposition of the expert witness.

In an order of May 20, 1988, more than two years after the original complaint, the trial court (Judge Waller) granted Plaintiff's motion to dismiss the case without prejudice pursuant to SCRCP Rule 41(a)(2) on the conditions:

(1) That it pay certain costs to each Defendant before refiling this action, and

(2) That it limit the refiled action to only those causes of action "as currently set forth in plaintiff's complaint ... as further limited by the Consent Order dated February 22, 1988...."

On September 15, 1988, Plaintiff filed a new complaint which named Anderson State Bank as a Defendant in addition to the Defendants in the original complaint, and which added causes of action for fraud and unfair trade practices, conversion, breach of fiduciary duty, professional negligence and negligence, thereby violating Judge Waller's order.

The trial court (Judge Connor) on November 30, 1988, dismissed the case with prejudice finding that Plaintiff purposefully added new causes of action and a new defendant to the refiled complaint in blatant violation of the May 20, 1988, order. The court also stated that it was "mindful of the history of abuse this case presents." The court noted Plaintiff represented on May 18, 1988, that it was not prepared for trial because it did not have the documents necessary to enable its expert to render an opinion. The court found that an...