Widewater Square Associates v. Opening Break of America, Inc.

460 S.E.2d 396 (1995)

WIDEWATER SQUARE ASSOCIATES, 84 Limited Partnership, A South Carolina Limited Partnership, Respondent, v. OPENING BREAK OF AMERICA, INC., Petitioner, v. Joe EDENS, Edens & Avant, Inc. and Robert P. Kapp, Jr., Respondents.

No. 24287.

Supreme Court of South Carolina.

Heard May 16, 1995.

Decided July 24, 1995.

Rehearing Denied August 24, 1995.

Daryl G. Hawkins and Pete Kulmala, both of Lewis, Babcock & Hawkins, Columbia, for petitioner.

Hoover C. Blanton and Thomas E. McCutchen, both of McCutchen, Blanton, Rhodes & Johnson, Columbia, for respondents.

PER CURIAM:

We granted certiorari to review the Court of Appeals' decision in Widewater Square Associates v. Opening Break of America, Inc., ___ S.C. ___, 442 S.E.2d 185 (Ct.App. 1994). We affirm as modified.

This appeal involves a dispute over the meaning and effect of a form order. Following a roster meeting, the administrative judge, using a Form 4, SCRCP, form order, checked the block marked "Settled", failed to check the block marked "Action Dismissed", and provided in the space reserved for "Statement of Judgment by Court" this phrase: "Noted at Roster Sounding." After entry of this form order, respondents retained new counsel who filed a motion to be allowed to file and serve an amended complaint. At a hearing on this motion, petitioner's counsel maintained the case had been dismissed by the earlier order, and therefore the circuit court lacked jurisdiction over respondents' motion. The circuit court judge concluded the Form 4 order was simply an *397 administrative order and granted respondents' motion. Petitioner appealed.

The Court of Appeals affirmed the circuit court ruling, holding the Form 4 order was ambiguous and that it was properly construed as an administrative order reflecting the status of the action that was neither a dismissal nor a final judgment. We granted certiorari and now affirm as modified.

We recently held that a settlement order is unenforceable where it fails to set forth the terms of the settlement as required by Rule 43(k), SCRCP. Ashfort Corp. v. Palmetto Constr. Group, Inc., ___ S.C. ___, 458 S.E.2d 533 (1995). Even if we were to find that the form order at issue here reflected a settlement, such settlement would not be enforceable since it is neither admitted by respondents nor has it been executed. Ashfort, supra. Accordingly, the opinion of the Court of Appeals affirming the circuit court's decision to allow this litigation to proceed is

AFFIRMED AS MODIFIED.