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Milton v. Strickland2/17/2005
Submitted February 1, 2005
AFFIRMED
In this medical malpractice action, the trial court granted Robbie Milton's motion for voluntary dismissal without prejudice. Doctors Glen F. Strickland and James D. Givens, and their surgical group, Southern Surgical Group, LLC, (collectively "Defendants") appeal, arguing the dismissal causes them legal prejudice and is against public policy. We affirm.
FACTS
In August 2003, Milton filed a complaint against Defendants in Lexington County, alleging medical malpractice. In paragraph two of the complaint, Milton stated that " pon information and belief, these Defendants are citizens and residents of the County of Lexington, State of South Carolina." In Defendants' answer, they admitted the allegations set forth in paragraph two of Milton's complaint. Because all Defendants resided in Lexington County when this action commenced, South Carolina's general venue statute required Milton to bring suit there. S.C. Code Ann. ยง 15-7-30 (1976).
Simultaneous to serving the complaint on Defendants, Milton also served upon them a series of written interrogatories. In response to the interrogatories, Defendants submitted Dr. Strickland's Curriculum Vitae. On his Curriculum Vitae, Dr. Strickland's home address and his children's names were blacked out. The blacking out of Dr. Strickland's address piqued Milton's interest, and he hired a private investigator to explore the issue of Dr. Strickland's residence. After reviewing tax, driver's license, and voter registration records, the private investigator filed an affidavit with the court, which indicated that Dr. Strickland was actually a resident of Richland County, South Carolina when the medical malpractice action was commenced.
Once this information was discovered, Milton moved for a voluntary dismissal without prejudice pursuant to Rule 41(a)(2), SCRCP, so that he could re-file his claim in Richland County. The trial court granted Milton's motion, and this appeal followed.
STANDARD OF REVIEW
A plaintiff is ordinarily entitled to a voluntary non-suit without prejudice as a matter of right unless the defendant shows legal prejudice or important issues of public policy are present. Burry & Son Homebuilder, Inc. v. Ford, 310 S.C. 529, 531, 426 S.E.2d 313, 314 (1992). "Once legal prejudice is found, the granting or denial is within the discretion of the trial court." Id.
LAW/ANALYSIS
Defendants first argue the trial court abused its discretion because it granted Milton's motion for voluntary dismissal without prejudice based on a mistaken belief that every plaintiff has an absolute right to one voluntary dismissal. Defendants argue that because the trial court failed to consider whether legal prejudice would result or whether public policy concerns would be implicated, the court committed reversible error. We disagree.
To support their argument, Defendants quote from the transcript of the hearing in which the trial court orally ruled that "the law is clear. To me. As I understand . . . I always give them one bite at the apple. Which I think 41(a)(2) gives them . . . ." While this isolated statement might suggest the trial court did not consider whether the voluntary dismissal would contravene public policy or whether it would cause legal prejudice to Defendants, the transcript as a whole belies that implication. Both attorneys discussed the proper standard in their presentations to the trial court, and the trial court even took a moment to read a case presented by the Defendants' attorney.
More importantly, the trial court's written order specifically acknowledges that "
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