J.J. Lawter Plumbing v. Wen Chow Intern. Trade and Inv., Inc., No. 0498

CourtCourt of Appeals of South Carolina
Writing for the CourtBELL; SANDERS, C.J., and SHAW
Citation331 S.E.2d 789,286 S.C. 49
Decision Date18 March 1985
Docket NumberNo. 0498
PartiesJ.J. LAWTER PLUMBING, Respondent, v. WEN CHOW INTERNATIONAL TRADE AND INVESTMENT, INC., Appellant. . Heard

Page 789

331 S.E.2d 789
286 S.C. 49
J.J. LAWTER PLUMBING, Respondent,
v.
WEN CHOW INTERNATIONAL TRADE AND INVESTMENT, INC., Appellant.
No. 0498.
Court of Appeals of South Carolina.
Heard March 18, 1985.
Decided June 11, 1985.

Page 790

[286 S.C. 51] Mario W. Schenkel, of Cox & Schenkel, Spartanburg, for appellant.

Richard W. Rhodes, of Burts, Turner, Hammett, Harrison & Rhodes, Spartanburg, for respondent.

BELL, Judge:

J.J. Lawter Plumbing sued Wen Chow International Trade and Investment, Inc., for breach of an alleged oral contract for construction services. A jury returned a verdict in Lawter's favor for $4,758.60. Wen Chow appeals. We affirm.

In July 1980 Wen Chow engaged the services of Ed Padgett, a general contractor, to convert a health spa in Spartanburg County into a restaurant. Padgett in turn hired several subcontractors, including Lawter. Lawter's written agreement with Padgett called for payments of $4670 for [286 S.C. 52] plumbing work. Extra work subsequently done by Lawter brought the total contract price to $6,676.60.

Midway through the project Padgett encountered serious problems with both his physical and financial health. He was absent from the job site for some time, and either refused or was unable to pay Lawter and the other subcontractors. C.C. Cheng, Wen Chow's on site representative, supervised work on the restaurant in Padgett's absence. When most of the subcontractors, including Lawter, walked off the job in September, Cheng urged them to return and assured them they would be paid when the restaurant was completed.

The restaurant opened for business in November. Neither Padgett nor Wen Chow ever paid Lawter for finishing the plumbing work, although he apparently presented bills to both. Lawter filed suit against Padgett and Wen Chow in January 1981. His theory of recovery against Wen

Page 791

Chow was based upon an oral agreement between Cheng and himself to complete the work described in Lawter's original contract with Padgett.

I.

Lawter filed a voluntary dismissal of Padgett six days before trial. Padgett had not answered the complaint, nor had Wen Chow filed a cross claim against him. On appeal Wen Chow argues the dismissal was improper under Rule 45, Rules of Practice for the Circuit Courts of South Carolina. Alternatively, it contends Padgett was a necessary party, without whom Lawter's action against Wen Chow could not proceed.

A.

Rule 45(1) provides in part:

An action may be dismissed by the plaintiff without order of Court (a) by filing and serving a notice of dismissal at any time before service by the adverse party of an answer....

This rule (presently S.C.R.Civ.P. 41(a)(1)(i), effective July 1, 1985) is substantially identical to Federal Rule of Civil Procedure 41(a)(1)(i). The word "action" in [286 S.C. 53] the federal rule has been interpreted to mean all of the claims against any one defendant, not necessarily all of the claims against all the defendants. Terry v. Pearlman, 42 F.R.D. 335, 3 A.L.R.Fed. 562 (D.Mass.1967). Thus, a voluntary dismissal under Fed.R.Civ.P. 41(a)(1)(i) is effective against a defendant who has not answered, even though another defendant has. Id. While no South Carolina court has ruled on this precise issue, we find the Terry rationale to be persuasive. Since Padgett had not answered the complaint, his dismissal by notice was proper under Circuit Court Rule 45.

B.

Wen Chow argues that Padgett was a necessary party without whom the action could not be tried. A necessary party is one whose rights must be ascertained and settled before the rights of the...

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4 practice notes
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...Med. Corp. v. First Med. Corp., 291 S.C. 296, 353 S.E.2d 294 (Ct.App.1987). In J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 331 S.E.2d 789 (Ct.App.1985), Wen Chow hired a general contractor, Padgett, to convert a health spa into a restaurant. Padgett hired Lawter ......
  • Johnson v. Hoechst Celanese Corp., No. 2288
    • United States
    • Court of Appeals of South Carolina
    • December 7, 1994
    ...conflicts is within the province of the jury, not this court. See, e.g., J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 331 S.E.2d 789 Accordingly, we affirm the decision of the trial court. AFFIRMED. HOWELL, C.J., CONNOR, J., and HOWARD, Acting Judge, concur. -----......
  • McPeters v. Yeargin Const. Co., Inc., No. 0810
    • United States
    • Court of Appeals of South Carolina
    • September 23, 1986
    ...be viewed in the light most favorable to Mr. McPeters. J.J. Lawter Plumbing Inc. v. Wen Chow International Trade and Investment, Inc., 286 S.C. 49, 331 [290 S.C. 331] S.E.2d 789 (Ct.App.1985). Our review is limited to determining whether there is any evidence reasonably supporting the verdi......
  • Ingle v. Kuszmaul, 2005-UP-393
    • United States
    • Court of Appeals of South Carolina
    • June 15, 2005
    ...breach of the contract. The amount due under a contract is for the fact finder. J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 55, 331 S.E.2d 789, 792 (Ct. App. 1985). The failure to make payment as provided in a contract constitutes a substantial breach of the cont......
4 cases
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...Med. Corp. v. First Med. Corp., 291 S.C. 296, 353 S.E.2d 294 (Ct.App.1987). In J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 331 S.E.2d 789 (Ct.App.1985), Wen Chow hired a general contractor, Padgett, to convert a health spa into a restaurant. Padgett hired Lawter ......
  • Johnson v. Hoechst Celanese Corp., No. 2288
    • United States
    • Court of Appeals of South Carolina
    • December 7, 1994
    ...conflicts is within the province of the jury, not this court. See, e.g., J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 331 S.E.2d 789 Accordingly, we affirm the decision of the trial court. AFFIRMED. HOWELL, C.J., CONNOR, J., and HOWARD, Acting Judge, concur. -----......
  • McPeters v. Yeargin Const. Co., Inc., No. 0810
    • United States
    • Court of Appeals of South Carolina
    • September 23, 1986
    ...be viewed in the light most favorable to Mr. McPeters. J.J. Lawter Plumbing Inc. v. Wen Chow International Trade and Investment, Inc., 286 S.C. 49, 331 [290 S.C. 331] S.E.2d 789 (Ct.App.1985). Our review is limited to determining whether there is any evidence reasonably supporting the verdi......
  • Ingle v. Kuszmaul, 2005-UP-393
    • United States
    • Court of Appeals of South Carolina
    • June 15, 2005
    ...breach of the contract. The amount due under a contract is for the fact finder. J.J. Lawter Plumbing v. Wen Chow Int'l Trade & Inv., Inc., 286 S.C. 49, 55, 331 S.E.2d 789, 792 (Ct. App. 1985). The failure to make payment as provided in a contract constitutes a substantial breach of the cont......

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