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2007-UP-495 - Brown v. Brown

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 Court of Appeals


Benjamin Brown, III, Respondent,

v.

Carl Brown, Dorothy Brown Pinckney, Sarah Brown Seabrooks, Ernestine Brown Robinson, Flossie Brown Mack, Heirs at Law and Distributees of Benjamin Brown, John Doe and Mary Roe, adults and Richard Roe and Jane Doe, infants, persons under disability or incompetence, if any including those persons who might be in the military and covered by the Soldiers and Sailors Civil Relief Act, being fictitious names designating any unknown heirs, devisees, distributees, issue, executors, administrators, successors, or assigns of the following deceased persons:  Rachael Brown, Lottie Brown Shaffer, Sarah Brown, Benjamin Brown, Benjamin Brown, Jr., Mary Ann Brown, Lawrence Stanley, and all other persons known or claiming any right, title, estate in or lien upon the real estate described in the Complaint herein, Defendants,

and

Carl Brown and Dorothy Brown Pinckney, Third Party Plaintiffs,

v.

James Mack, Jr. and Salem Baptist Church of Wadmalaw Island, an unincorporated association, Third Party Defendants,

Of Whom Carl Brown is the Appellant.


Appeal From Charleston County
 Mikell R. Scarborough, Master-In-Equity


Unpublished Opinion No. 2007-UP-495
Submitted October 1, 2007 – Filed October 16, 2007


APPEAL DISMISSED WITHOUT PREJUDICE


Edward M. Brown, of Charleston, for Appellant.

Karen Marie DeJong, of Mt. Pleasant, for Respondent.

PER CURIAM:  Carl Brown appeals the master-in-equity’s order denying his motion to enforce a mediation agreement and ruling that the case should be set for trial.  We dismiss the appeal without prejudice.

FACTS

Benjamin Brown, III, instituted a quiet title action against Carl Brown, Dorothy Brown, and all other named defendants.  The parties, pursuant to agreement and with the encouragement of the master, entered into mediation.  At mediation, the parties agreed on a division of property and entered into a written mediation agreement (the Agreement).  At the settlement hearing, the Agreement was read into the record before the master and later incorporated into the master’s order (the November 2005 Order).  In addition to the property division, the Agreement provided Carl and Benjamin would share equally the costs of a land survey, which was to be submitted to the Charleston County Planning Board (the Planning Board) for approval.  The master also indicated the Agreement was subject to the Planning Board’s approval of the plat and, once approved, the plat together with the lot descriptions were to be presented to the master for the final issuance of master deeds.

Palmetto Land Surveying, Inc. was hired to survey the property.  The surveyor submitted an itemized statement of costs to both parties.[1]  In January 2006, the surveyor sent another bill indicating the balance due on the survey was required before the surveyor would submit the plat to the Planning Board for review.  Benjamin refused to pay his half, indicating he was no longer in agreement with the Agreement.  Specifically, Benjamin claimed he entered into the Agreement based on the representation made by Carl that the 1.6 acres Carl would receive under the Agreement were wetlands.  The survey revealed the 1.6 acres were not wetlands, but in fact, dry land, and thereby more valuable to Carl than anticipated by the parties to the Agreement.

In May 2006, Carl filed a motion to enforce the Agreement.  After hearing the motion, the master concluded that a determination of where the wetlands were situated on the property was a condition precedent to the validity of the Agreement and held the parties lacked that knowledge when they entered into the Agreement.  Further, the master stated he understood the intent of the parties in entering the Agreement but believed the parties never “got to that agreement.”  Thus, the master denied the motion and ordered the parties to reach an agreement regarding the plat to be submitted to the Planning Board (the May 2006 Order) within thirty days, or “I’m going to rule that there was no agreement, and the case will come back and be tried.”  It is from the May 2006 Order that this appeal followed.

LAW/ANALYSIS

Benjamin claims the orders from which Carl appeals are interlocutory, and therefore, are not appealable.  We agree.

As a general rule, only final judgments are appealable.  Culberston v. Clemens, 322 S.C. 20, 23, 471 S.E.2d 163, 164 (1996).  Any judgment or decree leaving some further act to be done by the court before the rights of the parties are determined is interlocutory and not final.  Mid-State Distribs., Inc. v. Century Importers, Inc., 310 S.C. 330, 336, 426 S.E.2d 777, 780 (1993).

Benjamin argues a trial court’s order refusing to enforce a settlement agreement is not immediately appealable, citing Peterkin v. Brigman, 319 S.C. 367, 461 S.E.2d 809 (1995).  Peterkin was a wrongful death and survival action in which the parties reached a settlement agreement before trial.  When the parties submitted the settlement agreement to the trial court, it declined to approve the agreement finding there was no “meeting of the minds.”  Id.  On appeal of the order refusing to enforce the settlement agreement, the Supreme Court found the order was not immediately appealable.  Id.  The court found the refusal to approve the settlement agreement did not determine anything about any cause of action or defense, nor did it prevent a judgment from being rendered in the action.  Id. 

The end result of the trial judge’s action in the instant case was to refuse to enforce the parties’ settlement agreement.  Thus, under Peterkin, we find the failure to enforce the agreement is not immediately appealable. Inasmuch as we have decided this appeal is interlocutory, we need not reach the other issues raised by Appellant.

APPEAL DISMISSED WITHOUT PREJUDICE.

ANDERSON and THOMAS, JJ., and CURETON, A.J., concur.


[1] Benjamin and Carl were each required to make an initial deposit of $1,250.