Newman v. Old West, Inc., 22355

• Decision Date: 20 May 1985
• Docket Number: No. 22355,22355
• Citation: 286 S.C. 394,334 S.E.2d 275
• Court: South Carolina Supreme Court
• Parties: Christine NEWMAN, Appellant, v. OLD WEST, INC., Dry Gulch Saloon, Inc., Estelle Ragin, individually and as sole officer of Old West, Inc., Dry Gulch Saloon, Inc., and Ronald Hubbard, Respondents. . Heard

Page 275

334 S.E.2d 275

286 S.C. 394

Christine NEWMAN, Appellant, v. OLD WEST, INC., Dry Gulch Saloon, Inc., Estelle Ragin individually and as sole officer of Old West Inc., Dry Gulch Saloon, Inc., and Ronald Hubbard, Respondents.

No. 22355.

Supreme Court of South Carolina.

Heard May 20, 1985.

Decided Aug. 5, 1985.

H. Wayne Floyd, West Columbia, for appellant.

David A. Fedor, Columbia, for respondents.

LITTLEJOHN, Chief Judge:

This breach of contract action was brought by Christine Newman, Plaintiff-Appellant, on June 7, 1982, against Old West, Inc., et al., Defendants-Respondents. Some nine months later on March 7, 1983, it was placed on the trial roster as being ready for disposition. On May 6, 1983, Plaintiff's attorney attended a pre-trial conference before the Honorable E.C. Burnett, III, Administrative Judge, in connection with another case that was pending in the same court. On Monday, May 9, 1983, counsel for Plaintiff and Defendants were notified that the case had reached the Common Pleas trial roster. On the morning of May 12, 1983, counsel for all parties were contacted by telephone and advised that they must come immediately to court as the case was called for trial.

The order of the administrative judge, here on appeal, which dismissed the action with prejudice, is as follows:

This is an action for breach of contract, instituted by Christine Newman (Plaintiff) against Old West, Inc., Dry Gulch Saloon, Inc., Estelle Ragin and Ronald Hubbard (Defendants). Plaintiffs have moved for a voluntary non-suit, without prejudice, of the above cause. Motion denied, the above cause will be dismissed with prejudice.

On Monday May 9, 1983, both parties, through counsel, were notified that the above case had reached the Common Pleas trial roster. On Thursday morning May 12, 1983, both parties, through counsel, were notified that the above case would be called for trial that afternoon. Defendants and eight (8) supporting witnesses, some of whom were from out of State, were present and prepared for trial. Also, Defendants attorneys and his staff were present and prepared for trial. Plaintiff's attorney was present but not prepared for trial.

Plaintiff has moved for a continuance pursuant to Circuit Court Rule 27. Plaintiff's motion, for continuance, is denied because Plaintiff has failed to show the absence of a material witness. Plaintiff has also moved for a continuance, pursuant to Circuit Court Rule 81. Plaintiff's motion for a Rule 81 continuance is denied because Plaintiff has failed to show good cause. Finally, Plaintiff has moved for a voluntary non-suit pursuant to Circuit Court Rule 45. Defendant objects.

Where a discontinuance of an action will work a hardship and unduly prejudice the defendant a trial judge may deny the Plaintiff's motion to dismiss. See Harmon v. Harmon 257 S.C. 154, 184 S.E.2d 553 (1971). Clearly, the Plaintiff had sufficient notice that the above cause would be called for trial. Also, Defendants have expended significant sums of money to be present and prepared for trial.

Accordingly, I find that a discontinuance of the above cause will work a hardship and unduly prejudice the Defendants. Thus, I order that the above case be dismissed with prejudice.

AND IT IS SO ORDERED at Columbia, South Carolina on this, the 25th day of May, 1983.

Counsel for the Plaintiff has appealed submitting that the judge abused his discretion (1) in refusing to continue the case pursuant to Circuit Court Rule 27, and (2) in failing to grant the motion for a Rule 81 continuance, and (3) in refusing a motion for a voluntary non-suit pursuant to Circuit Court Rule 45 without prejudice.

All of these matters are addressed to the sound discretion of the trial judge and this Court will not reverse absent an abuse. When seeking a continuance based upon the absence of a material witness, the moving party must strictly comply with Circuit Court Rule 27. Counsel concedes that he did not comply with that Rule. The trial judge had no alternative but to deny the motion. We find no abuse of discretion.

Likewise, we find no abuse of discretion in the refusal by the judge to grant the Circuit Court Rule 81 motion which would have merely placed the case at the foot of the calendar. And in like fashion, the granting of a motion for a voluntary non-suit without prejudice is a matter for the judge's discretion concerning which we find no abuse.

There was a day when counsel had much influence and/or control over the docket. This was conducive to delay, waste of judge time and waste of court time. Since the adoption of the new Judicial Article V to the South Carolina Constitution in 1973, a new system of operation has come into being such that in the interest of judicial economy and disposition of cases for all litigants, the administrative judge must have control of the trial...