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LANCASTER v. FIELDER9/9/1991
Heard May 7, 1991.
Decided Sept. 9, 1991.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
We granted petitioner's petition for writ of certiorari to review the Court of Appeals' decision in this wrongful death action. The issues presented are whether the Court of Appeals properly dismissed the appeal because petitioners failed to appeal the final judgment and whether the trial judge abused his discretion in transferring venue in this case. We affirm the Court of Appeals, as modified.
I. FACTS
Respondent Cathy Davis Lancaster commenced this wrongful death action alleging that the decedent's death was caused by the medical negligence of petitioners, Dr. Gerald Fielder and Wallace Thomson Hospital. On the first day of trial, prior to jury selection, respondent made a motion for change of venue on the ground that an impartial jury could not be obtained in Union County. The trial judge denied the motion.
Both sides submitted expanded voir dire to the trial judge. There were forty-six (46) members on the jury panel. Fifteen (15) members of the jury venire were excused for cause. Out of the remaining jury venire, fourteen (14) jurors had a direct or indirect doctor-patient relationship with Dr. Fielder. Although respondent exercised all of her strikes against patients of Dr. Fielder, eight (8) of the jurors seated were either Dr. Fielder's patients or had family members treated by Dr. Fielder.
After selection of the jury, respondent renewed her motion for change of venue, but the trial judge denied the motion. During the course of the trial, respondent made two motions for mistrial based on the discovery that one of the jurors was the mother of an operating room technician at Wallace Thomson
The case resulted in a mistrial because the jury was deadlocked. Immediately following the mistrial, respondent renewed her motion for change of venue. The trial judge granted the motion, over the objection of petitioners. While preserving their right to appeal the trial judge's decision to transfer venue, petitioners agreed to try the case in Laurens County.
When the case came up for trial in Laurens County, petitioners moved that venue be transferred back to Union County on the ground that the case had been improperly transferred. The motion was denied. The trial resulted in a verdict against both petitioners in the sum of $50,000 in actual damages. Petitioners moved for a new trial on the ground that venue had been improperly transferred to Laurens County. The trial judge denied the motion.
Petitioners appealed from the order of the first trial judge, which granted respondent's motion for change of venue, and from the order of the second trial judge, which denied petitioners' post-trial motions for a new trial on the issue of venue. The case was assigned to the Court of Appeals. The Court of Appeals dismissed the appeal, finding that petitioners had not appealed the final judgment.
Petitioners then filed a petition for rehearing in which they asserted that they had in fact appealed the final judgment. Before a decision was handed down, this Court decided the case of Link v. School District of Pickens County, 302 S.C. 1, 393 S.E.2d 176 (1990). Petitioners brought Link to the attention of the Court of Appeals, as petitioners believed that Link eliminated the need to appeal the final judgment.
The Court of Appeals issued another memorandum opinion, replacing the previous opinion, which granted petitioners' motion for rehearing, but which dismissed the appeal on the basis that Link was distinguishable and that in this case, petitioners had not appealed the final judgment. We grant
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