Coates v. Simchon

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

Vince Coates, Respondent,

v.

Dorothy Renee Simchon, Appellant.

AND

Bay Island Sportswear, Inc., Sam Simchon, Individually,
Appellants,

v.

Vince Coates, Individually, Xcentric Ventures, LLC,
Edward Magedson and John or Jane Doe 1-7 and XYZ
Company X-Z, Defendants,

Of whom Vince Coates, Individually is the Respondent.

Appellate Case No. 2014-002729

Appeal From Abbeville and Greenwood Counties
Eugene C. Griffith, Jr., Circuit Court Judge

Unpublished Opinion No. 2017-UP-038
Submitted November 9, 2016 – Filed January 11, 2017
AFFIRMED

J. Walker Coleman, IV, and Julius H. Hines, both of
K&L Gates LLP, of Charleston; Edward S. McCallum,
III, of Greenwood, for Appellants.

C. Rauch Wise, of Greenwood, for Respondent.

PER CURIAM: In this civil matter, Dorothy Renee Simchon, Sam Simchon, and
Bay Island Sportswear, Inc. (Bay Island) (collectively "Appellants") appeal the
circuit court's order enforcing a settlement agreement (Agreement) with Vince
Coates. Appellants argue the court erred in (1) failing to require Coates to comply
with the spirit of the Agreement, or alternatively, enforcing the Agreement because
the record lacked its material terms; (2) ordering the dismissal of the underlying
cases with prejudice; and (3) declining to provide alternative or supplemental
relief. We affirm.

1. First, we find the circuit court did not err in failing to require Coates to comply
with the "spirit" of the Agreement, or alternatively, enforcing the Agreement under
Rule 43(k), SCRCP. Rule 43(k) provides, in pertinent part, the following
regarding the enforceability of settlement agreements:

No agreement between counsel affecting the proceedings
in an action shall be binding unless reduced to the form
of a consent order or written stipulation signed by
counsel and entered in the record, or unless made in open
court and noted upon the record, or reduced to writing
and signed by the parties and their counsel.

(emphasis added).

Our supreme court has instructed that "the purpose of rules such as Rule 43(k) is:
'[t]o prevent fraudulent claims or oral stipulations, and to prevent disputes as to the
existence and terms of agreements and to relieve the court of the necessity of
determining such disputes.'" Ashfort Corp. v. Palmetto Constr. Grp., Inc., 318 S.C.
492, 495, 458 S.E.2d 533, 535 (1995) (quoting 83 C.J.S. Stipulations § 4 (1953)).
The supreme court further cautioned that "[t]he time of the court should not be
taken up in controversial matters of this character." Id. (quoting 83 C.J.S.
Stipulations § 4 (1953)).

During the colloquy with the court, Appellants' counsel only stated Coates was to
request the search engines remove the content—a far cry from admitting tortious
behavior. Upon our review of the record, we cannot locate any evidence—besides
the allegation of Appellants—that Coates ever agreed to signing a consent order
that included a finding of defamation against Sam and Bay Island. Therefore, we
concur with the circuit court's decision declining to direct Coates perform an action
not contemplated in the record.

Alternatively, Appellants contend the circuit court erred in enforcing the
Agreement under Rule 43(k) because there was no meeting of the minds between
the parties on an ambiguous material term, namely, the exact content of the consent
order requesting search engine carriers to remove the subject comments. We find,
however, that all of the material terms of the settlement are present, they are
unambiguous, and the Agreement is enforceable. See, e.g., Cheap-O's Truck Stop,
Inc. v. Cloyd, 350 S.C. 596, 603–04, 567 S.E.2d 514, 517–18 (Ct. App. 2002)
(holding a settlement agreement read in open court was enforceable under Rule
43(k) after finding all the material terms were present). In reviewing the record,
we do not know if Appellants learned before or after the announcement of the
Agreement that various search engines required a finding of defamation prior to
blocking objectionable content. We find it was Appellants' duty to make the court
aware of these companies' policies, or if they were unsure, either refrain from
placing the settlement upon the record or state Coates was to do whatever was
necessary to remove the comments from the search engines. See Truck South, Inc.
v. Patel, 339 S.C. 40, 49, 528 S.E.2d 424, 429 (2000) ("Unilateral mistake is not by
itself grounds for rescinding the contract unless the mistake has been induced by
fraud, deceit, misrepresentation, concealment, or imposition of the party opposed
to rescission, without negligence on the part of the party claiming rescission . . . ."
(emphasis added)).

In our view, allowing a party to unilaterally rescind a settlement agreement it
published in open court by simply stating the other party agreed to something
relating to a term not in the transcript would run counter to the purposes of Rule
43(k). See Ashfort, 318 S.C. at 495, 458 S.E.2d at 535 (stating Rule 43(k) seeks to
prevent disputes as to the terms of settlement agreements and relieve the court of
the duty of determining such disputes). While it may be unfortunate that
Appellants decided to publish the settlement in open court when they wished the
terms to be confidential, we find they are bound by the enforceable settlement
agreement they placed upon the record under Rule 43(k). Therefore, we affirm the
circuit court's decision on this issue.

2. Next, we find the circuit court properly dismissed the Abbeville and Greenwood
County cases with prejudice. A release is "the act of giving up a right or claim to
the person against whom it could have been enforced." Release, BLACK'S LAW
DICTIONARY (10th ed. 2014). At the motions hearing, the circuit court specifically
asked the parties' counsel, "So there [are] mutual releases of each of [the cases]
provided that these terms are met?" (emphasis added). Counsel for Coates and
Appellants both answered in the affirmative. Therefore, we find the court correctly
found it was the intent of the parties that the cases be dismissed with prejudice.

3. Finally, we affirm the circuit court's refusal to provide supplemental or
alternative relief if its order directed towards internet service entities was later held
to be invalid. Specifically, we reject Appellants' claim as speculative and find it is
not ripe for judicial review. See Colleton Cty. Taxpayers Ass'n v. Sch. Dist. of
Colleton Cty., 371 S.C. 224, 242, 638 S.E.2d 685, 694 (2006) ("[A]n issue that is
contingent, hypothetical, or abstract is not ripe for judicial review.").

AFFIRMED.1

WILLIAMS, THOMAS, and GEATHERS, JJ., concur.

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