Pearman v. Sutton

THE STATE OF SOUTH CAROLINA In The Court of Appeals James F. Pearman, III & Lauri C. Pearman, Respondents, v. Sutton Builders, Inc. & John R. Sutton, Appellants. Appeal From Anderson County James W. Johnson, Jr., Circuit Court Judge Unpublished Opinion No. 2003-UP-228 Submitted March 10, 2003 - Filed March 26, 2003 AFFIRMED Thomas H. Coker, Jr., of Greenville, for respondents. Randall Scott Hiller, of Greenville, for appellants. PER CURIAM: This is a breach of contract action arising from a Settlement Agreement between the buyers of a home, James and Lauri Pearman (the “Pearmans”), and the builder, John Sutton. The Pearmans and Sutton each filed Motions to Compel Settlement. The circuit court granted the Pearmans’ motion and awarded liquidated damages of $75,000. Sutton appeals. We affirm. FACTS/PROCEDURAL HISTORY The Pearmans executed a contract with Sutton for the construction of a home. Unhappy with the construction, the Pearmans brought suit alleging various causes of action. The parties settled the controversy in an agreement entered by the circuit court, requiring Sutton to correct defects and complete the remaining work as outlined in the agreement. The balance of money due Sutton under the contract was placed in escrow. The agreement provided for: 1) a subsequent inspection to determine compliance with the agreement; and 2) the payment of the escrowed funds to Sutton once inspection certified the defects were corrected and the home was substantially completed. If the inspection revealed the defects were not corrected or the home not completed, the agreement provided for liquidated damages payable to the Pearmans. Based on this agreement, the circuit court dismissed the action. Several months later, the designated independent inspector examined the Pearmans’ home and issued a one-sentence statement that the work specified in the agreement had been completed. The Pearmans did not believe this was accurate and they notified Sutton of their intention to depose the inspector. Sutton’s attorney disagreed that the Pearmans had the authority to question the inspector’s report or to depose him, and refused to attend. Sutton did not file for a protective order from the circuit court, attempting to prohibit the Pearmans from deposing the inspector. The Pearmans took the deposition. In his deposition, the inspector admitted he had not inspected the home thoroughly, had not performed any testing, and had taken Sutton’s word that he would finish the items which were not actually finished at the time of the inspection. Subsequently, both the Pearmans and Sutton filed Motions to Compel Settlement, the Pearmans seeking liquidated damages based on the inspector’s deposition testimony and Sutton seeking the funds held in escrow based on the inspector’s one-sentence report. After reviewing the affidavits supplied by the Pearmans and excerpts from the inspector’s deposition, the circuit court ordered the inspector to re-inspect the home and file a detailed report. The inspector subsequently did so, concluding the majority of the repairs were not yet completed. The Pearmans filed another Motion to Compel Settlement. The circuit court granted their motion and awarded $75,000 in liquated damages. Sutton appeals. LAW/ANALYSIS Sutton argues the Pearmans had no authority to depose the inspector because the case had been dismissed, and thus, the circuit court erred by considering the deposition excerpts in the Pearmans’ Motion to Compel Settlement. We find Sutton’s argument to be without merit. Initially we note, “[a] trial court retains the inherent jurisdiction and power to enforce agreements entered into in settlement of litigation before that court.” Rock Smith Chevrolet, Inc. v. Smith, 309 S.C. 91, 93, 419 S.E.2d 841, 842 (Ct. App. 1992). Sutton concedes this in his argument, noting the circuit court retained “inherent jurisdiction to enforce or set aside the settlement.” The South Carolina Rules of Civil Procedure “govern the procedure in all South Carolina courts in all suits of a civil nature whether cognizable as cases at law or in equity . . . [and] shall be construed to secure the just, speedy, and inexpensive determination of every action.” Rule 1, SCRCP. In addition, the Rules specifically provide a procedure for taking a deposition. After commencement of an action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court . . . must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of summons and complaint . . . . Rule 30(a)(1), SCRCP (emphasis added). When the circuit court dismissed this suit, it did so pursuant to a settlement agreement between the parties. The parties agreed to a list of forty-six items to be completed. After approximately five months, the Pearmans suspected this work had not been done. Therefore, pursuant to the settlement agreement and their rights under the South Carolina Rules of Civil Procedure, the Pearmans obtained deposition testimony from the inspector to confirm their suspicion. The inspector’s deposition was taken long after the expiration of thirty days from the service of the summons and complaint. In addition, Sutton made no attempt to prohibit the Pearmans from taking the deposition. [1] Furthermore, we see no difference between gathering a sworn statement by deposition or by affidavit, other than the courtesy it extends to opposing counsel to participate. Sutton does not appeal the circuit court considering affidavits when ruling on the Pearmans’ Motion to Compel Settlement. In fact, Sutton himself submitted sworn testimony in support of his own Motion to Compel. Finally, Sutton provides this Court with no authority stating the Pearmans were not permitted to collect evidence and sworn testimony prior to filing their Motion to Compel Settlement. Because the trial court retains the inherent jurisdiction to enforce settlement agreements, the South Carolina Rules of Civil Procedure did not require the Pearmans to seek permission from the trial court before taking the inspector’s deposition, and Sutton did not seek a protective order prohibiting the Pearmans from taking the inspector’s deposition, nothing barred the circuit court from considering the inspector’s deposition excerpts in the Pearmans Motion to Compel Settlement. CONCLUSION [2] For the foregoing reasons, the circuit court’s order awarding the Pearmans $75,000 in liquidated damages is AFFIRMED. [3] CURETON, STILWELL, and HOWARD, JJ., concur. [1] Sutton could have sought an order from the circuit court protecting him by prohibiting the Pearmans from taking the inspector’s deposition. See Rule 26(c), SCRCP; cf. 23 Am. Jur. 2d Depositions and Discovery § 67 (2002) (stating a federal court “may order that disclosures of requested discovery not be had”). [2] Sutton raises several other issues on appeal. However, we deem these issues abandoned because they do not contain supporting authority. See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 414 (1994) (holding when a party fails to provide arguments or supporting authority for its assertion, the issue is deemed abandoned on appeal). [3] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.