King v. King
| Decision Date | 28 March 2007 |
| Docket Number | 2007-UP-132 |
| Court | South Carolina Court of Appeals |
| Parties | Patricia E. King and Robbie King Jones, as representatives of W.R. King and Ellen King, Appellants, v. Margie B. King and Robbie Patricia Ione King, Individually and as co-personal representatives of the Estate of Christopher C. King, deceased and Nelson M. King, Chester Telephone Company and Branch Banking & Trust (BB&T), Respondents. |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted March 1, 2007
Appeal From Chester County Kenneth G. Goode, Circuit Court Judge
Willie F. Bradley, Jr, of Columbia, for Appellants.
Raymon E. Lark, Jr. and Timothy F. Rogers, of Columbia, for Respondents.
Patricia E. King and Robbie King Jones (Appellants), as representatives of W.R. King and Ellen King (parents), appeal the circuit court's order dismissing this action for failure to prosecute and allowing Margie B. King and Robbie Patricia Ione King (Respondents) to proceed with their counterclaims. We affirm. [1]
In November 1998, Appellants filed this action for enforcement of a loan and ownership/operation of King's Funeral Home. [2] Respondents filed a timely answer. In November 1999 Appellants filed an amended complaint in which they dismissed one defendant. Respondents again filed a timely answer in which they asserted additional counterclaims.
In April 2001, Appellants served a Request for Leave to Amend” and a First Amended Complaint” on Respondents. Appellants sought to add plaintiffs and defendants and new causes of action. However, the First Amended Complaint” was neither authorized by an order of the circuit court nor by consent of the parties.
By letter dated May 3, 2001, Judge Alford informed Appellants they may amend their complaint to add new parties. Judge Alford instructed Appellants to prepare a proposed order in that regard and send a copy of the prepared order to opposing counsel at the same time you send it to me.”
In May 2001, Respondents deposed two of Appellants' witnesses Robbie King Jones and Moses Caldwell. During the deposition of Robbie King Jones, a disagreement arose regarding Respondents' questioning and Appellants' counsel's interjections. Respondents terminated the deposition until [they] could come before [the court] and get a ruling on” the objections and actions by Appellants. After Robbie King Jones' deposition ended, counsel for Appellants informed Caldwell he did not have to appear at his deposition. Although he initially refused to go to the deposition, the sheriff persuaded Caldwell to obey the subpoena and appear at his deposition. However, Caldwell refused to answer any of Respondents' questions because Appellants' counsel was not present. Thereafter Respondents filed a motion for contempt, a motion to compel removal of a lis pendens, motion for protective order against Appellants' counsel's speaking objections during depositions, a motion for stay, and a motion to compel answers to discovery requests.
On June 1, 2001, the circuit court held a hearing to consider motions and matters of concern between the parties. During this hearing, the circuit court acknowledged both parties have at some point failed to cooperate with the discovery process. [3] The circuit court then informed both parties discovery must be completed forthwith in order to get the case ready for trial. The circuit court also warned both parties that if there are any further impediments to the discovery, any other problems with it, I will consider sanctions.” The circuit court further noted the possible sanctions include dismissing the case altogether for failure to cooperate.
Also during the hearing, the circuit court held Appellants had ten days to provide supplemental answers to Respondents' interrogatories. In addition, the circuit court instructed Appellants to provide documents and answers to Respondents' discovery requests in compliance with the South Carolina Rules of Civil Procedure. Thereafter, the circuit court stated directly to Appellants: Give [the Respondents] the information they want; quit stonewalling. You run the risk of getting this whole lawsuit thrown out.”
As to the lis pendens on Respondents' property, the circuit court held the Respondents needed to provide information proving the property was not related to the law suit and then Appellants would have to remove the lis pendens.
The circuit court considered also Appellants' motion to amend the complaint. The court agreed the complaint should be amended to include all interested parties; however, the court also informed Appellants they shouldn't serve an amended complaint until you get permission from the court to do that... file it and then you can file an amended complaint and serve people.” The court then instructed Appellants to prepare [the court] another order” to add the interested parties. The court also stated that if [Appellants have] already submitted... an order, I'll sign it.”
After the circuit court heard and ruled on all motions, the court asked Respondents to prepare an order extending the time for discovery to one hundred and twenty days to allow the new parties time to complete discovery. The court also told Appellants: I'm going to allow you to amend to add the parties you want to add... and allow you to file an amended complaint.” Then, before the hearing ended, Respondents asked whether they could draft a proposed order and it won't be next week or the next week...;” the court answered affirmatively.
After the June 2001 hearing, neither party filed any order. A status conference was scheduled for March 18, 2004. The status conference was apparently cancelled when Appellants were late.
In April 2004, Respondents filed a motion to dismiss for failure to prosecute. After a hearing, the circuit court held dismissal was warranted based on Appellants' willful violation and total disregard of [court orders]” and repeated failure to litigate this matter. The court also held Respondents' counterclaims remained viable. Appellants filed a motion to reconsider, which the circuit court denied. This appeal followed.
Whether an action should be dismissed for failure to prosecute is left to the discretion of the [circuit court], and [its] decision will not be disturbed, except upon a clear showing of an abuse of discretion.” McComas v. Ross 368 S.C. 59, 62, 626 S.E.2d 902, 904 (Ct. App. 2006). An abuse of discretion occurs (1) when the court's ruling is based upon an error of law, such as application of the wrong legal principle; (2) when based upon factual conclusions, the ruling is without evidentiary support; (3) when the court is vested with discretion, but the ruling reveals no discretion was exercised; or (4) when the ruling does not fall within the range of permissible decisions applicable in a particular case. Ex parte: Capital U-Drive-It, Inc., 369 S.C. 1, 5, 630 S.E.2d 464, 467 (2006).
Appellants contend the circuit court erred in dismissing their case for failure to prosecute. We disagree.
Rule 41(b), SCRCP, provides that a defendant may move for dismissal of an action for failure of the plaintiff to prosecute or to comply with the South Carolina Rules of Civil Procedure or any order of court. The plaintiff has the burden of prosecuting his action, and the trial court may properly dismiss an action for plaintiff's unreasonable neglect in proceeding with his cause.” Don Shevey & Spires, Inc. v. Am. Motors Realty Corp., 279 S.C. 58, 60, 301 S.E.2d 757, 758 (1983). Such power is deemed to be necessarily vested in trial courts [in order for them] to manage their own affairs so as to achieve orderly and expeditious disposition of cases.” Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 212, 493 S.E.2d 826, 832 (1997) (citation omitted).
Generally, the dismissal of actions for failure to prosecute is appropriate in cases where: (1) the dismissals are imposed to maintain the orderly disposition of cases in the face of repeated warnings or multiple opportunities to proceed with trial; and (2) only then upon a finding of unreasonable neglect. McComas v. Ross, 368 S.C. 59, 62, 626 S.E.2d 902, 904 (Ct. App. 2006). In addition, there must be some showing of indifference to the rights of the defendant.” Id. at 63, 626 S.E.2d at 904.
As this court noted in McComas, the Fourth Circuit Court of Appeals requires trial courts to consider four factors before dismissing a case for failure to prosecute: 1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Id. at 63, 626 S.E.2d at 904-05 (citing Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990)).
In this case, we find the circuit court did not commit an abuse of discretion in dismissing Appellants' case for failure to prosecute because the dismissal came after repeated warnings Appellants had infinite opportunities to move the case forward, Appellants unreasonably neglected to proceed with their cause of action, and Appellants demonstrated an indifference to Respondents' rights. The circuit court instructed Appellants numerous times to comply with discovery and file an amended complaint. The circuit court also warned Appellants that further illegitimate delays in discovery could lead to dismissal. The record fails to demonstrate that Appellants complied with all of the court's requests. [4] In addition, the only reason this case has not moved forward is because Appellants have...
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