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Unpublished Opinion No. 2003-UP-228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.