Moore v. Berkeley County
| Citation | 348 S.E.2d 174,290 S.C. 43 |
| Decision Date | 07 May 1986 |
| Docket Number | No. 22607,22607 |
| Court | United States State Supreme Court of South Carolina |
| Parties | John MOORE, Respondent, v. BERKELEY COUNTY and South Carolina Wildlife and Marine Resources Department, Appellants. . Heard |
Page 174
v.
BERKELEY COUNTY and South Carolina Wildlife and Marine
Resources Department, Appellants.
Decided Sept. 2, 1986.
Page 175
Chief Counsel Buford S. Mabry, Jr., and Staff Counsel James A. Quinn, both of South Carolina Wildlife and Marine Resources Dept., Columbia, for appellant South Carolina Wildlife and Marine Resources Dept.
John H. Tiencken, Jr., of Watson, Creech & Tiencken, Moncks Corner, for appellant Berkeley County.
Kenneth Michael Suggs, of Suggs and Kelly, Columbia, for respondent.
FINNEY, Justice:
This is a tort action by the respondent, John Moore, [290 S.C. 44] against the appellants, Berkeley County and the South Carolina Wildlife and Marine Resources Department, for personal injuries received on August 27, 1982, as a result of a diving accident in waters known as Durham Creek in Berkeley County. The action was commenced on June 12, 1985. The appellants answered and moved for summary judgment alleging, among other defenses, sovereign immunity. Prior to the hearing on the motion, the respondent orally moved for a voluntary nonsuit without prejudice. The trial court granted the motion for nonsuit and this appeal followed. We affirm.
Procedurally, the heart of this controversy is the trial court's ruling on the motion for a voluntary nonsuit after the appellants filed an answer and a motion for summary judgment. Under South Carolina Rules of Civil Procedure 41(a)(2) 1 an action shall not be dismissed at the plaintiff's instance after the service of an answer or motion for summary judgment, except by order of the Court.
In Marlow v. Marlow, 284 S.C. 155, 325 S.E.2d 703 (S.C.App.1984) the Court of Appeals summarized the right of a plaintiff to a nonsuit as follows:
Ordinarily a plaintiff is entitled to a voluntary nonsuit without prejudice as a matter of right, unless there is a showing of legal prejudice to the Defendant. Gulledge v. Young, 242 S.C. 287, 130 S.E.2d 695 (1963). If no legal prejudice is shown, the trial judge has no discretion with respect to granting a motion for discontinuance; but if prejudice is shown, the matter becomes one of discretion for the trial judge. Id.; Ralston Purina Co. v. Odell, 248 S.C. 37, 148 S.E.2d 736 (1966); Harmon v. Harmon, 257 S.C. 154, 184 S.E.2d 553 (1971).
The appellants contend they will be legally prejudiced if the nonsuit is sustained because they will...
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...to apply where the facts giving rise to the litigation occurred before the Supreme Court abolished the doctrine); Moore v. Berkeley County, 290 S.C. 43, 348 S.E.2d 174 (1986) (wherein the Supreme Court clarified its holding in McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), and held ......
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