Rycroft v. Tanguay

• Decision Date: 18 April 1983
• Docket Number: No. 21899,21899
• Court: South Carolina Supreme Court
• Parties: Kenneth R. RYCROFT, Appellant, v. Rene J. TANGUAY and Manufactured Housing, Inc., Defendants, of whom Rene J. Tanguay is the Respondent.

Page 327

302 S.E.2d 327

279 S.C. 76

Kenneth R. RYCROFT, Appellant, v. Rene J. TANGUAY and Manufactured Housing, Inc., Defendants of whom Rene J. Tanguay is the Respondent.

No. 21899.

Supreme Court of South Carolina.

April 18, 1983.

David D. Armstrong, Greenville, for appellant.

Clifford F. Gaddy, Jr., of Gaddy & Davenport, Greenville, for respondent.

LEWIS, Chief Justice:

This appeal is from an order of the lower court setting aside and reopening a judgment upon the ground that the judgment was obtained through extrinsic fraud of appellant.

The parties to this action, as the sole stockholders, engaged in a mobile home business in Greenville, South Carolina, during 1978 and 1979 under the name of Manufacturing Housing, Inc. They had a disagreement over the conduct of the business and appellant instituted this action in April 1979 to dissolve the corporation. Respondent filed a counterclaim alleging misapplication of funds by appellant. By reply, appellant interposed similar allegations against respondent.

The matter was referred to the Master in Equity and a hearing was held on June 13, 1979. Counsel for respondent waited until the night before the hearing to serve a subpoena duces tecum on appellant to produce, among other things, records of a joint bank account at Citizens and Southern National Bank in the names of himself and his wife. Although discovery was pursued while the action was pending, at no time prior to the subpoena did respondent or his counsel inquire of appellant concerning his personal bank records. There is no indication in the record that appellant ever actively concealed the fact that he had personal bank accounts; he was simply never asked. Appellant was unable to produce the bank records at trial the next morning in response to the subpoena served the night before. During trial appellant was questioned about his negotiation of checks payable to the corporation. At the conclusion of the hearing, respondent's attorney moved for a continuance so that he could obtain and inspect the Citizens and Southern National Bank records. The Master denied the motion as untimely made.

Appellant was allowed to purchase the one-half interest of respondent in the corporation for the sum of $3100.00 and respondent was awarded the sum of $4,114.68 against appellant on his counterclaim. The Master issued his report on June 29, 1979 setting forth his findings and recommendations to the circuit court. No exceptions were served or filed by either party to the report of the Master, and appellant duly complied with the decision of the Master by paying the above amounts to respondent who accepted the same.

Thereafter, appellant filed a motion on August 3, 1979 to dismiss this action on the ground that the issues between the parties had been settled and disposed of in accordance with the Master's report. On August 29, 1979 respondent filed a reply to the motion requesting that the case be reopened and respondent allowed to present additional evidence on the ground that appellant had offered perjured testimony and had committed fraud upon the court. In the meantime, respondent procured the issuance of another subpoena duces tecum to secure the production of appellant's personal bank records which respondent had mentioned in his motion for a continuance of the hearing on June 13, 1979. Subsequently these bank records were received by respondent and his attorney.

Pursuant to the motion previously made for an order of dismissal, this action was dismissed on September 6, 1979. Notice of appeal by respondent from the order of dismissal was...