Cassandra Selph v. Barbara Boatwright

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

Cassandra Selph, Appellant,

v.

Barbara Boatwright; Margaret S. Daniels, Individually
and as Personal Representative of the Estate of Eli Selph;
Eli Maurice Selph; and Dwayne Selph, Defendants,

Of whom Margaret S. Daniels, individually and as
Personal Representative of the Estate of Eli Selph, and
Dwayne Selph are the Respondents.

Appellate Case No. 2021-000849

Appeal From Williamsburg County
George M. McFaddin, Jr., Circuit Court Judge

Unpublished Opinion No. 2024-UP-047
Submitted January 1, 2024 – Filed February 7, 2024

AFFIRMED

Bernard Mitchell Alter, of Alter & Barbaro, of Brooklyn,
New York, for Appellant.

Walter B. Todd, Jr., of Walter B. Todd, Jr., PC, of
Columbia, for Respondent Dwayne Selph.
Kenneth Allen Davis, Tierney Felicia Goodwyn, and
Charles J. Boykin, all of Boykin & Davis, LLC, of
Columbia, for Respondent Margaret S. Daniels.

PER CURIAM: Cassandra Selph (Selph) appeals the circuit court's order
granting Dwayne Selph and Margaret S. Daniels's, individually and as personal
representative of the estate of Eli Selph (collectively, Respondents'), motion to
compel compliance with the parties' mediated settlement agreement. Selph argues
the circuit court erred by (1) considering Daniels's untimely filed affidavit, (2)
ruling on Respondents' motion without allowing the parties to present additional
evidence and testimony, and (3) ordering enforcement of the settlement agreement
when Respondents failed to issue a written demand prior to filing their motion to
compel. We affirm pursuant to Rule 220(b), SCACR.

First, as to whether the circuit court erred by considering Daniels's affidavit, we
find Respondents timely served Selph under Rule 6(d) of the South Carolina Rules
of Civil Procedure. See Rule 6(d), SCRCP ("A written motion other than one
which may be heard ex parte, and notice of the hearing thereof, shall be served not
later than ten days before the time specified for the hearing . . . . When a motion is
to be supported by affidavit, the affidavit shall be served with the motion; and . . .
additional or opposing affidavits may be served not later than two days before the
hearing, unless the court permits them to be served at some other time. The
moving party may serve reply affidavits at any time before the hearing
commences." (emphasis added)). Selph incorrectly asserts Daniels's affidavit must
have been filed ten days prior to the January 14, 2021 motion hearing. Rule 6(d)
requires affidavits in support of a written motion must be served no later than ten
days before the hearing. Although Daniels's affidavit was not filed until January 5,
2021, the notice of electronic filing indicated Daniels's affidavit was electronically
served on Selph on January 4, 2021, which was ten days prior to the motion
hearing. See In re. S.C. Elec. Filing Pol'ys & Guidelines (SCEF), Section 4(e)(2),
(3) 415 S.C. 1, 7-8, 780 S.E.2d 600, 603 (2015) (providing that (1) upon the
E-Filing of a motion, the E-Filing system automatically generates and transmits a
notice of electronic filing (NEF) to all authorized E-Filers associated with the case;
(2) when the parties are proceeding in the E-Filing system, E-Filing of a motion
along with the transmission of an NEF constitutes proper service under Rule 5 of
the South Carolina Rules of Civil Procedure, as to all other parties who are E-Filers
in the case; (3) service of a motion by NEF is complete at the time of submission
of the motion for E-Filing as long as an NEF is transmitted and the NEF constitutes
proof of service under Rule 5(b) such that the date of service shall be the date
stated in the NEF as the "Official File Stamp"); Rule 5(b), SCRCP ("Whenever
under these rules service is required or permitted to be made upon a party
represented by an attorney the service shall be made upon the attorney unless
service upon the party himself is ordered by the court."). Accordingly, we find the
circuit court did not err by considering Daniels's affidavit.

Second, we find the circuit court properly exercised its discretion in enforcing the
mediated settlement agreement without taking additional evidence and testimony.
Under Rule 43(e), of the South Carolina Rules of Civil Procedure, a circuit court
has the discretion to hear a motion to enforce a settlement agreement "on affidavits
in lieu of oral testimony." Nichols Holding, LLC v. Divine Cap. Grp., LLC, 416
S.C. 327, 341, 785 S.E.2d 613, 620 (Ct. App. 2016); see Rule 43(k), SCRCP ("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.").

Lastly, as to whether the circuit court erred by enforcing the settlement agreement
when Respondents failed to issue a written demand for enforcement of the
mediated settlement agreement, we find this argument is without merit. See Byrd
v. Livingston, 398 S.C. 237, 241, 727 S.E.2d 620, 621 (Ct. App. 2012) ("In South
Carolina jurisprudence, settlement agreements are viewed as contracts." (quoting
Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802 (Ct. App.
2009))); S.C. Dep't of Transp. v. M & T Enterprises of Mt. Pleasant, LLC, 379 S.C.
645, 655, 667 S.E.2d 7, 13 (Ct. App. 2008) ("When a contract is unambiguous,
clear, and explicit, it must be construed according to the terms the parties have
used, to be taken and understood in their plain, ordinary, and popular sense."). The
settlement agreement unambiguously required Selph pay Daniels for her interest in
portion of the subject property by March 23, 2019. Further, it provided the
settlement agreement was enforceable pursuant to Rule 43(k), of the South
Carolina Rules of Civil Procedure, as a contract between the parties, and the parties
could seek enforcement of the settlement agreement by motion. The settlement
agreement did not require the party seeking to enforce the agreement issue a
written demand first.

AFFIRMED. 1

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.

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