Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Department
2005-UP-126 - Milton v. Strickland


In The Court of Appeals

Robbie Milton,        Respondent,


Glen F. Strickland, MD, James D. Givens, MD, and Southern Surgical Group, LLC,        Appellants.

Appeal From Lexington County
Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2005-UP-126
Submitted February 1, 2005 – Filed February 17, 2005


S. Jahue Moore, of West Columbia, for Appellants.

Michael Parham and William L. Dodson, Jr., both of Greenville, for Respondent.

PER CURIAM: 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. [1]


In August 2003, Milton filed a complaint against Defendants in Lexington County, alleging medical malpractice.  In paragraph two of the complaint, Milton stated that “[u]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. § 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.


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.


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 “[a] plaintiff generally has the right to voluntarily dismiss his claim without prejudice absent some ‘legal’ prejudice demonstrated by the Defendant or some public policy issue of great import.”  It is well-settled that no order is final until it is written and entered.  Rule 58(a), SCRCP; see also First Union Nat’l Bank of S.C. v. Hitman, Inc., 308 S.C. 421, 422, 418 S.E.2d 545, 545 (1992) (“[A] judge is not bound by the prior oral ruling and may issue a written order which is in conflict with the oral ruling.”).  Thus, we find the trial court considered the correct standard when it granted Milton’s motion to voluntarily dismiss his claim without prejudice.

Next, Defendants argue the trial court erred in granting Milton’s motion for a voluntary dismissal without prejudice because they demonstrated that such a dismissal would legally prejudice them and would contravene public policy.  Specifically, Defendants argue that once venue was laid in Lexington County, it cannot be moved to Richland County without depriving Dr. Givens’ of his substantial right to defend the action in the county of his residence.  Defendants further argue that because Milton seeks a dismissal so he can re-file in Richland County, Milton is forum-shopping, a practice that is repugnant to the public policy of South Carolina.    We disagree.

Defendants argue the case of   Burry & Son Homebuilder, Inc. v. Ford, 310 S.C. 529, 531, 426 S.E.2d 313, 314 (1992), supports their argument that once venue was established in Lexington County, dismissal for the purpose of allowing Milton to re-file in Richland would amount to legal prejudice for Dr. Givens.  We do not believe the law set forth in Burry is applicable to the factual circumstances of this case.

In Burry, a homebuilder filed a complaint against a homeowner for breach of contract.  The homeowner answered, arguing that the homebuilder was not entitled to enforce the contract because he was not a licensed residential builder.  Thereafter, the homeowner sought to amend his answer to assert a counterclaim for damages resulting from the homebuilder’s defective workmanship.  The homeowner also moved for summary judgment.  In support of his motion, the homeowner submitted an affidavit from an investigator for the South Carolina Residential Builders’ Commission who confirmed the homebuilder was not licensed.  In response, the homebuilder filed a motion for a voluntary dismissal without prejudice.  Id. at 530, 426 S.E.2d at 314.  The trial court denied the homebuilder’s motion for voluntary dismissal, finding that legal prejudice would result if the homeowner had to bring his counterclaim to the county of the homebuilder’s residence.  Id. at 531, 426 S.E.2d at 314.  On appeal, the supreme court affirmed, finding “the loss of proper venue in one’s county of residence suffices to establish legal prejudice.”   Id.

Unlike the Burry case, there are multiple defendants in this case.  Here, even assuming some degree of legal prejudice would result from Dr. Givens’ losing his ability to defend himself in the county in which he resides, such prejudice would be offset by the opportunity Dr. Strickland is afforded now that he is able to defend himself in his county of residence.  Furthermore, the case before us does not involve a counterclaim.  Thus, there is no danger that Defendants will lose their right to bring a counterclaim in their county of residence as was the concern in Burry.  

Furthermore, we agree with the trial court that this action is in an early enough stage of litigation that dismissing the case would not cause legal prejudice to Defendants.  At this point, only minimal discovery has been exchanged and no depositions have been taken.  Cf. Crout v. S.C. Nat’l Bank, 278 S.C. 120, 293 S.E.2d 422 (1982) (finding legal prejudice when the plaintiff’s motion for voluntary dismissal was announced only five days before trial and plaintiff had no compelling reason for making the motion).  Moreover, to the extent that the passage of time might affect legal prejudice, we note that if Defendants had not admitted in their answer that Dr. Strickland lived in Lexington County, Milton could have immediately sought to have the case voluntarily dismissed or to have venue changed.  Likewise, if the city and state of Dr. Strickland’s residence had not been blacked out on his Curriculum Vitae, Milton could have taken immediate action.  Instead, months had to pass for Milton to hire an investigator and discover Dr. Strickland’s true county of residence.  While the Defendants’ errors may have been innocent, their mistakes did extend the time between Milton’s complaint and his motion for voluntary dismissal.

Furthermore, under the circumstances of this case, we disagree with Defendants’ argument that allowing Milton to re-file in Richland County would condone forum shopping.  This is not a situation where Milton is attempting to join a sham defendant for the sheer purpose of acquiring a more plaintiff-friendly venue.  Rather, Milton is merely attempting to file his medical malpractice action in a county in which he could have filed had he known from the outset where Dr. Strickland lived.  See S.C. Code Ann. § 15-7-30 (1976) (setting forth the rule that certain actions, such as medical malpractice, “shall be tried in the county in which the defendant resides at the time of the commencement of the action,” and “[i]f there be more than one defendant then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action”). 

Accordingly, the trial court’s grant of Milton’s motion for a voluntary dismissal without prejudice is


HEARN, C.J., and KITTREDGE and WILLIAMS, JJ., concur.

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