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Unpublished Opinion No.   2010-UP-238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.