Petty v. Weyerhaeuser Co., 20856
| Decision Date | 23 January 1979 |
| Docket Number | No. 20856,20856 |
| Citation | 272 S.C. 282,251 S.E.2d 735 |
| Court | South Carolina Supreme Court |
| Parties | George PETTY, d/b/a Petty's Skate Arena, Respondent, v. WEYERHAEUSER COMPANY and Burris Construction Company, Inc., of which Weyerhaeuser Company is Appellant. |
Boyd, Knowlton, Tate & Finlay, Columbia, for appellant.
Saleeby, Cox, Driggers & Bledsoe, Hartsville, for respondent.
The defendant, Weyerhaeuser Company (Weyerhaeuser), appeals from an order of the circuit judge denying its motion to (1) set aside the service of the summons and complaint, (2) set aside an order of default taken against it, and (3) dismiss the suit against it for lack of in personam jurisdiction.
The action was commenced in February 1976 when plaintiff Petty filed a complaint against Weyerhaeuser and a codefendant, Burris Construction Company, Inc. The allegations against Weyerhaeuser are in products liability on the theory of negligence, warranty and strict liability. More specifically, the claim against Weyerhaeuser is that it manufactured and supplied to the plaintiff a defective product unsuited as flooring for plaintiff's skating rink.
Weyerhaeuser is a Washington State corporation. It was once qualified to do business in South Carolina, with C. T. Corporation System of Greenville serving as its agent for service. However, in 1967, it withdrew its qualification and has had no relationship with C. T. Corporation System since.
Plaintiff undertook service of process by mailing to the office of the Secretary of State for South Carolina two copies of the summons and complaint. Accompanying the two copies was an instruction that one copy be served on Weyerhaeuser through C. T. Corporation System, the plaintiff having been informed by the Secretary of State that C. T. Corporation System was Weyerhaeuser's registered agent in South Carolina. On February 13, the Secretary of State sent, by registered mail, a copy of the summons and complaint to the following address:
Weyerhaeuser Company
c/o C. T. Corporation System
409 E. North Street
C. T. Corporation System received the summons and complaint on February 7, 1976, returned a receipt for them to the office of the Secretary of State, and forwarded the summons and complaint to Weyerhaeuser at its home office in Tacoma, Washington.
On February 27, 1976, George H. Bonneville, in-house counsel for Weyerhaeuser, telephoned the plaintiff's attorneys, acknowledging receipt of the summons and complaint, and requesting an extension of time to answer the plaintiff's complaint. This telephone conversation was confirmed and documented by a letter from Weyerhaeuser's attorney, dated March 1, 1976. The letter stated, in relevant part:
"Confirming our telephone conversation of February 27, Please consider this letter as an informal notice of appearance on behalf of Weyerhaeuser Company in the suit you recently instituted on behalf of your client, Petty's Skate Arena, against Weyerhaeuser Company and Burris Construction Company." (Emphasis added.)
It also said:
"If and when you conclude that the prospects of settlement of the claim against Weyerhaeuser do not justify further delay, I will arrange for formal appearance and answer by South Carolina counsel immediately upon notice from you."
Plaintiff's counsel, on March 10, 1976, acknowledged receipt of the letter, saying:
"I am simply writing to you to confirm the fact that we are granting you an extension of time to answer or otherwise plead in this matter, . . . ."
On May 24, 1976, plaintiff's counsel wrote to Weyerhaeuser, offering to settle its claim upon payment of $40,000.00. Weyerhaeuser did not respond.
On July 7, 1976, plaintiff's counsel again wrote Weyerhaeuser, asking it to:
". . . let us know at your earliest convenience whether you are going to retain counsel and defend this case or settle Mr. Petty's claim."
Weyerhaeuser did not respond.
On August 9, plaintiff's counsel wrote Weyerhaeuser, saying:
"Please let us have some response from you concerning whether you will meet our settlement demand, or send us your answer to our complaint within ten days of the date of this letter."
Weyerhaeuser again ignored the communication.
On August 21, ten days having elapsed without reply, plaintiff's counsel filed what purported to be an affidavit of default, and on August 25, took an order of the court declaring Weyerhaeuser in default and referring the matter to a master to ascertain allowable damages. On September 10, Weyerhaeuser's counsel wrote to plaintiff's counsel apologizing for ignoring previous correspondence and telling plaintiff's counsel that he was sending the entire file to a Columbia, South Carolina law firm with the request that it represent Weyerhaeuser's interest.
Subsequently, the master held a hearing and recommended judgment for damages in the amount of $118,750.00. This recommendation was accepted and the circuit judge issued his order in November, granting judgment in that amount.
On December 10, 1976, Weyerhaeuser's South Carolina attorneys served counsel for the plaintiff with a notice of special appearance and with a motion to quash and set aside the service of the summons and complaint, to set aside the order of default, and to dismiss the suit for lack of jurisdiction over the person of defendant Weyerhaeuser.
The agreed statement of facts stipulates that there were before the judge three issues: (1) whether service of process was properly made on defendant Weyerhaeuser, thereby conferring in personam jurisdiction in the court, (2) whether any form of substituted service was properly perfected by plaintiff so as to confer in personam jurisdiction on the court, and (3) whether the order adjudging defendant to be in default was invalid due to irregularities contained in the court's record. In addition, plaintiff raised an issue before the trial judge of whether Weyerhaeuser had entered a voluntary appearance in the action prior to the entry of the order of default.
The judge overruled the motion, holding that plaintiff's service of process and proof of service were properly made and established, and holding that:
". . . irrespective of service of...
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Hood v. Haynes, 53565
...the clerk of the court denying he still was the defendant's registered service agent constituted an appearance); Petty v. Weyerhauser Co., 272 S.C. 282, 251 S.E.2d 735 (1979) (defendant's attorney called and acknowledged receipt of summons and complaint and by letter asked to consider the l......
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Stearns Bank Nat. Ass'n v. Glenwood Falls
...735 (1979), for the proposition that a letter from one attorney to another may constitute a voluntary appearance. Glenwood Falls argues Petty is distinguishable from this In Petty, plaintiff's counsel sent the summons and complaint to defense counsel in Tacoma, Washington. A few weeks later......
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Adams v. McDaniel, 2009 NY Slip Op 31273(U) (N.Y. Sup. Ct. 6/3/2009)
...various types of conduct as a general appearance conferring personal jurisdiction over a defendant. For example, in Petty v Weyerhaeuser Co. (272 SC 282 [1979]), the South Carolina Supreme Court held the defendant had made a general appearance after the defendant's counsel wrote a letter to......
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