Prime Medical Corp. v. First Medical Corp., No. 0868

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY
Citation353 S.E.2d 294,291 S.C. 296
PartiesPRIME MEDICAL CORPORATION, Appellant, v. FIRST MEDICAL CORPORATION, Thomas J. DeCaro and Robert P. Schofield, Jr., Respondents. . Heard
Decision Date09 December 1986
Docket NumberNo. 0868

Page 294

353 S.E.2d 294
291 S.C. 296
PRIME MEDICAL CORPORATION, Appellant,
v.
FIRST MEDICAL CORPORATION, Thomas J. DeCaro and Robert P.
Schofield, Jr., Respondents.
No. 0868.
Court of Appeals of South Carolina.
Heard Dec. 9, 1986.
Decided Feb. 2, 1987.
Certiorari Denied May 20, 1987.

Page 295

[291 S.C. 297] Jay Bender of Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, for appellant.

William L. Pope of Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford, Columbia, for respondents.

GOOLSBY, Judge:

The dispositive issue in this action for breach of contract against the respondents First Medical Corporation, Robert P. Schofield, Jr., and Thomas J. DeCaro ("First Medical"), is whether the administrative judge abused his discretion in denying the appellant Prime Medical Corporation's motion for a voluntary dismissal without prejudice. We hold that he did so and reverse and remand for entry of an order of voluntary dismissal without prejudice.

Prime Medical filed a summons and complaint against First Medical for breach of a contract to form a third corporation. First Medical timely answered.

On December 27, 1984, Prime Medical filed a motion for a voluntary dismissal without prejudice. The motion was heard on December 28, 1984. The administrative judge denied the motion solely because counsel for First Medical "indicated they were ready and prepared to go to trial." The administrative judge then set the case for trial for January 14, 1985.

The case went to trial. At the close of testimony, the trial judge directed a verdict in First Medical's favor. Prime Medical now appeals contending, among other things, that the administrative judge abused his discretion in failing to grant its motion for a voluntary dismissal without prejudice.

[291 S.C. 298] At the time the administrative judge denied Prime Medical's motion, Circuit Court Rule 45(2), which is identical to Rule 41(a)(2) of the new South Carolina Rules of Civil Procedure, was in effect. Circuit Court Rule 45(2) provides in part that "an action shall not be dismissed at the plaintiff's instance save upon order of the Court and upon such terms and conditions as the Court deems proper."

In Gulledge v. Young, 242 S.C. 287, 130 S.E.2d 695 (1963), a case that preceded the adoption of Circuit Court Rule 45(2), the Supreme Court commented on the rule in this state regarding voluntary dismissal:

The rule in this State is that 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 defendants. The [hearing] Judge has no discretion with respect to the granting of such a motion unless and until legal prejudice is shown. In that event, the

Page 296

matter becomes one of discretion for the [hearing] Judge.

242 S.C. at 291, 130 S.E.2d at 697.

The first case interpreting Rule 45(2), Harmon v. Harmon, 257 S.C. 154, 184 S.E.2d 553 (1971), holds that the "rule vest[ed] discretionary power in the [hearing] judge which he did not have prior to the adoption of the rule." 257 at 158, 184 S.E.2d at 555. The court noted that a hearing judge may refuse to allow a dismissal where...

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4 practice notes
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • 14 Abril 2003
    ...S.C. at 531, 426 S.E.2d at 314; Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990); Prime Med. Corp. v. First Med. Corp., 291 S.C. 296, 353 S.E.2d 294 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......
  • Knight v. Waggoner, No. 3819.
    • United States
    • Court of Appeals of South Carolina
    • 7 Junio 2004
    ...burden of this showing of legal prejudice lies solely on the party seeking to defeat the motion. See Prime Med. Corp. v. First Med. Corp., 291 S.C. 296, 300, 353 S.E.2d 294, 297 As the parties opposing the motion for a voluntary dismissal without prejudice, Appellants failed to carry their ......
  • Bowen & Smoot v. Plumlee, No. 23189
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Febrero 1990
    ...the defendant or unless important issues of public policy are present in the case. Prime Medical Corporation v. First Medical Corporation, 291 S.C. 296, 353 S.E.2d 294 Here, the Attorneys filed their motion to dismiss before the Children filed their Answer or Counterclaim. The trial judge f......
  • Jarrell v. Seaboard Systems R.R., Inc., No. 1065
    • United States
    • Court of Appeals of South Carolina
    • 14 Diciembre 1987
    ...as a matter of right, unless there is a showing of legal prejudice to the Defendant." Prime Medical Corp. v. First Medical Corp., 291 S.C. 296, 353 S.E.2d 294 [294 S.C. 186] Seaboard alleges it will be subjected to substantial legal prejudice as a result of the granting of the non-suit......
4 cases
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • 14 Abril 2003
    ...S.C. at 531, 426 S.E.2d at 314; Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990); Prime Med. Corp. v. First Med. Corp., 291 S.C. 296, 353 S.E.2d 294 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......
  • Knight v. Waggoner, No. 3819.
    • United States
    • Court of Appeals of South Carolina
    • 7 Junio 2004
    ...burden of this showing of legal prejudice lies solely on the party seeking to defeat the motion. See Prime Med. Corp. v. First Med. Corp., 291 S.C. 296, 300, 353 S.E.2d 294, 297 As the parties opposing the motion for a voluntary dismissal without prejudice, Appellants failed to carry their ......
  • Bowen & Smoot v. Plumlee, No. 23189
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Febrero 1990
    ...the defendant or unless important issues of public policy are present in the case. Prime Medical Corporation v. First Medical Corporation, 291 S.C. 296, 353 S.E.2d 294 Here, the Attorneys filed their motion to dismiss before the Children filed their Answer or Counterclaim. The trial judge f......
  • Jarrell v. Seaboard Systems R.R., Inc., No. 1065
    • United States
    • Court of Appeals of South Carolina
    • 14 Diciembre 1987
    ...as a matter of right, unless there is a showing of legal prejudice to the Defendant." Prime Medical Corp. v. First Medical Corp., 291 S.C. 296, 353 S.E.2d 294 [294 S.C. 186] Seaboard alleges it will be subjected to substantial legal prejudice as a result of the granting of the non-suit......

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