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2004-MO-008 - deBondt v. Carlton Motorcars, Inc
THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Christina G. deBondt,        Respondent,

v.

Carlton Motorcars, Inc. and Mercedes-Benz, N.A.,        Petitioners.


ON WRIT OF CERTIORARI TO
THE COURT OF APPEALS


Appeal from Greenville County
Larry R. Patterson, Circuit Court Judge


Memorandum Opinion No. 2004-MO-008
Heard January 6, 2004 - Filed March 15, 2004


RELIEF GRANTED


Hamilton Osborne, Jr., and James Y. Becker, both of Haynsworth Sinkler Boyd, P.A., of Columbia, for petitioners.

Robin B. Stilwell, of Hunter, Tomaszek & Stilwell, of Greenville, for respondent.


PER CURIAM:  This appeal is from an order vacating petitioners’ offer of judgment and placing this case on the trial roster.  By unpublished order, the Court of Appeals dismissed petitioners’ appeal because an order setting a case for trial is not directly appealable.  We granted petitioners’ request for review.

FACTS

Respondent deBondt is a car collector.  In June 1996, she contracted with petitioner Carlton Motorcars, Inc. (Dealership) to purchase the sixteenth 1998 Mercedes SLK 230 received by the Dealership from petitioner Mercedes-Benz (Mercedes).  As part of the deal, deBondt was entitled to certain promotional materials including CD’s, a keychain, a photo of an SLK prototype, and a “family album” of previous Mercedes autos.  In October 1997, Dealership delivered an SLK to deBondt for the purchase price of $42,258.60.  DeBondt never received the promotional materials.

DeBondt then commenced this action alleging violations of the Dealers Act and the Unfair Trade Practices Act, a cause of action for fraud, deceit, and negligent misrepresentation, and seeking specific performance.  In October 1998, Mercedes offered to settle the litigation by providing “a pristine set of all promotional materials received by charter owners of the SLK 230, complete with personalized letters addressed to Ms. deBondt” and an affidavit confirming the authenticity of the materials.  DeBondt ultimately refused the settlement offer claiming the materials were not in the condition promised and the personalized letters contained errors.

Finally, in November 1998, the trial court granted petitioners summary judgment on all causes of action.  By decision dated July 24, 2000, the Court of Appeals reversed and remanded for trial.  DeBondt v. Carlton Motorcars, Inc., 342 S.C. 254, 536 S.E.2d 399 (Ct. App. 2000).

After the Court of Appeals’ decision, petitioners served on deBondt an offer of judgment for $1,000, plus the promotional materials being held in trust by deBondt’s former attorney and “four disputed letters dated and otherwise revised pursuant to [deBondt’s] written instructions.”  This offer of judgment and deBondt’s acceptance was filed with the Clerk of Court on October 30, 2000. 

On November 20, 2000, an unrecorded status conference was held.  As a result, the trial court issued an order setting the case for trial the following January. 

ISSUE

Is the trial court’s order immediately appealable?  If not, what is petitioners’ remedy?

DISCUSSION

Petitioners characterize the trial court’s order as one setting aside a judgment without the proper procedure and claim this order is therefore directly appealable.

Rule 68(a), SCRCP, which provides for an offer of judgment, states that the clerk of court “shall enter judgment upon filing of the notice of an offer and acceptance of judgment.”  (emphasis added).  In this case, judgment was never entered after the offer and acceptance of judgment were filed.  Instead, the trial judge set the case for trial.

A judgment is not final until it is written and entered.  Ex parte: Reichlyn, 310 S.C. 495, 427 S.E.2d 661 (1993).  Because judgment has never been entered, there is no final judgment in this case.  Further, the Court of Appeals correctly noted that an order setting a case for trial is not directly appealable.  Shields v. Martin Marietta Corp., 303 S.C. 469, 402 S.E.2d 482 (1991) (order restoring case to docket is not appealable).

Where an order is not directly appealable, however, this Court may consider the appeal as an application for mandamus where appropriate.  See State Farm Mut. Auto. Ins. Co. v. Scholes, 601 F.2d 1151 (10th Cir. 1979).  Mandamus will issue only when there is a specific right to be enforced, a positive duty to be performed, and no other specific remedy.  City of Rock Hill v. Thompson, 349 S.C. 197, 563 S.E.2d 101 (2001).  It is a coercive writ that orders a public official to perform a mandatory ministerial duty.  Id.      

Here, we find a writ of mandamus appropriate.  In pertinent part, our Rule 68 tracks the language of Rule 68 of the Federal Rules of Civil Procedure.  As with the federal rule, the language of our rule is mandatory -- once an offer and acceptance of judgment have been filed, the trial court has no discretion to do anything but enter judgment.  Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991).  Entry of a Rule 68 judgment is simply ministerial.  Oates v. Oates, 866 F.2d 203 (6th Cir. 1989). 

In this case, once the offer and acceptance of judgment were filed, the trial court had no discretion to do anything but order that judgment be entered.  Petitioners’ only remedy is a writ of mandamus.  Accordingly, we order that judgment be entered pursuant to Rule 68.

RELIEF GRANTED.

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.