Georganne Apparel, Inc. v. Todd, 1563

• Decision Date: 10 September 1990
• Docket Number: No. 1563,1563
• Citation: 399 S.E.2d 16,303 S.C. 87
• Court: South Carolina Court of Appeals
• 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

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.

J. Edward Bell, III of Bell & Bagley, Sumter, for appellant.

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 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 affidavit before the court contradicted this representation, stating that the expert had reviewed the necessary documents before the May 18 hearing. The court also found that the Defendants were prejudiced by Plaintiff's actions.

Plaintiff argues before us that the trial judge abused her discretion by dismissing the complaint with prejudice. The claimed abuse of discretion rests on contentions: (1) Plaintiff's substantial compliance with the May 20 order, (2) the availability of milder sanctions, (3) the court's reliance on factors not supported by the record, (4) and the court's reliance on points to which Plaintiff had no chance to respond. As to the Defendant Anderson State Bank, Plaintiff argues the court abused its discretion by dismissing the complaint because Anderson did not join in the other Defendants' motions.

Before addressing these arguments, we set out certain telling excerpts from the orders below. From Judge Waller's May 20, 1988, order:

During oral argument, plaintiff initially moved for a continuance of the trial of this matter. The defendants strenuously objected to this Motion arguing that plaintiff had had two and one-half years to prepare its case, and that all the defendants were ready for trial and had expended significant sums of money in preparing for the trial of this matter. ^*

* * * * * *

... In this regard, the defendants advised the Court of the fact that the plaintiff had commenced this action two and one-half years ago by filing its Complaint on January 31, 1986, and had subsequently had the case struck from the roster pursuant to Rule 40(c)(3) in September of 1986 and thereafter restored to the roster over nine months ago in September of 1987. In addition, counsel for defendant Travis Matthews and Dal Felkel and Associates, once again advised the Court of the fact that defendant Matthews had been without insurance from the commencement of this action and would continue to be without insurance until this matter was resolved. Admittedly, as has already been stated by it in its Order of May 16, 1988, this Court is mindful of plaintiff's dilatory actions in preparing its case. Furthermore, this Court is also aware of the extreme hardship which has been...