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2010-UP-238 - Driggers v. Nexsen

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David Nexsen, Respondent,

v.

Marion Driggers and James L. Lifrage, Defendants,

of whom Marion Driggers is the Appellant.


Appeal From Williamsburg County
George C. James, Jr., Circuit Court Judge
John M. Milling, Circuit Court Judge


Unpublished Opinion No.   2010-UP-238
Submitted April 1, 2010 – Filed April 14, 2010


AFFIRMED


Marion L. Driggers, pro se, of Lake City, for Appellant.

J. Jakob Kennedy, of Florence, for Respondent.

PER CURIAM:  Marion L. Driggers appeals the trial court's order dismissing his motion to restore.  Driggers argues the trial court erred in: (1) ordering a continuance of his hearing; (2) denying his motion to restore; (3) "not checking due process on summary judgment"; (4) failing to investigate who had a claim to personal property at issue in this case; (5) failing to call witnesses to verify the validity of the contracts at issue in this case; (6) "not granting 27-27-10 for Improvements"; (7) failing to grant a continuance to allow his witnesses to appear; (8) failing to question witnesses regarding cutting off power before possession, unjust enrichment or quantum merit, the Hunt Club Contract, or the signing of the stipulation of dismissal; (9) not granting a jury trial because of the compelling evidence in the case; and (10) failing to allow Driggers to subpoena evidence.  We affirm.[1]

As to Driggers' argument that the trial court erred in ordering a continuance of his hearing, the trial court found Nexsen's attorney was involved in a jury trial in Florence County and correctly continued the hearing because the jury trial had priority over the hearing.  See Rule 601, SCACR (stating a circuit court common pleas jury term has priority over a circuit court common pleas non-jury term); Plyler v. Burns, 373 S.C. 637, 650, 647 S.E.2d 188, 195 (2007) ("The grant or denial of a continuance is within the sound discretion of the trial judge and is reviewable on appeal only when an abuse of discretion appears from the record.").    

As to Driggers' contention that the trial court erred in denying his motion to restore, the case was previously dismissed with prejudice, which precludes any subsequent attempts by Driggers to restore the case. See Rule 41(a), SCRCP (stating a case may be voluntary dismissed by stipulation "by filing a stipulation of dismissal signed by all parties who have appeared in the action"); Laughon v. O'Braitis, 360 S.C. 520, 527, 602 S.E.2d 108, 111 (Ct. App. 2004) ("A dismissal with prejudice acts as an adjudication on the merits and therefore precludes subsequent litigation just as if the action had been tried to a final adjudication."); Motley v. Williams, 374 S.C. 107, 111, 647 S.E.2d 244, 246 (Ct. App. 2007) ("It is a long-standing and well-settled rule that an attorney may settle litigation on behalf of his client and that the client is bound by his attorney's settlement actions.").  Driggers' attorney signed a stipulation of dismissal on his behalf, which dismissed the case with prejudice, and the stipulation was validly filed with the Clerk of Court in Williamsburg County. No evidence in the record supports Driggers' contention that his attorney did not represent him at the time of the signing of the stipulation.  Additionally, Driggers signed a settlement agreement and a mutual release, both of which required Driggers to release all claims against Nexsen arising out of this property dispute.  Accordingly, the trial court correctly denied Driggers' motion to restore.  

As to Driggers' remaining arguments: Hughes v. State, 367 S.C. 389, 409, 626 S.E.2d 805, 815 (2006) (finding the appellate court need not address remaining issues when the resolution of a prior issue is dispositive). 

AFFIRMED.

HUFF, THOMAS, and KONDUROS, JJ., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.