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Mendelsohn v. Whitfield

Supreme Court of South Carolina
Jan 10, 1994
439 S.E.2d 845 (S.C. 1994)

Opinion

23984

Submitted December 28, 1993

Decided January 10, 1994

Appeal From Charleston County John H. Smith, Judge

Affirmed as modified.

Joseph B. Bergen and Frederick S. Bergen, Savannah, GA, and William B. Harvey, III, Beaufort, for petitioner.

Robert H. Hood, Charleston, for respondent.


Petitioner asks this Court for a writ of certiorari to review the Court of Appeals' decision in Mendelsohn v. Whitfield, ___ S.C. ___, 430 S.E.2d 524 (Ct.App. 1993). We grant the petition to review petitioner's Question 2, dispense with further briefing, and affirm as modified. We deny the petition for certiorari as to the remaining questions.

In its opinion, the Court of Appeals, relying on Reliance Varnish Co. v. Mullins Lumber Co., 213 S.C. 84, 48 S.E.2d 653 (1948), stated that when a defendant counterclaims he is only entitled to open and close on the issues raised by the counterclaims, not on the whole case. That statement is incorrect.

Under Rule 43(j), SCRCP, a defendant is given the privilege of opening and closing jury arguments only where he admits the plaintiff's claim in his pleadings, and takes upon himself the burden of proof. Indeed, in Reliance, this Court stated that the defendant was not entitled to open and close because the defendant did not admit the plaintiff's cause of action and rely solely on its affirmative defenses. However, we went on to state: "It should be added that [the defendant] was allowed the right to open and close in argument to the jury on the issues raised by the counterclaim." The Court was simply pointing out that the defendant was allowed that privilege. It is not required under Rule 43(j), SCRCP.

Furthermore, to adopt the holding of the Court of Appeals would lead to an unworkable situation. Two sets of opening and closing arguments would be needed in every case in which there are counterclaims.

In order to avoid that situation, Rule 43(j) sets out clear and unambiguous requirements that a defendant must meet in order to open and close jury arguments. In this case, petitioner did not admit the allegations in respondent's complaint; therefore, under Rule 43(j), SCRCP, he was not entitled to open and close on any of the issues at trial whether they were raised by him or by respondent.

Affirmed as modified.


Summaries of

Mendelsohn v. Whitfield

Supreme Court of South Carolina
Jan 10, 1994
439 S.E.2d 845 (S.C. 1994)
Case details for

Mendelsohn v. Whitfield

Case Details

Full title:Joseph Mendelsohn, Respondent v. Anthony Whitfield, Petitioner

Court:Supreme Court of South Carolina

Date published: Jan 10, 1994

Citations

439 S.E.2d 845 (S.C. 1994)
439 S.E.2d 845

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