Background
Jones Nissan, Inc. brought suit in Georgetown County against THAG, LLC, Nissan of Sumter, LLC, and others, asserting claims for breach of contract, conversion, fraud, constructive fraud, money had and received, quantum meruit, breach of the implied covenant of good faith and fair dealing, piercing the corporate veil, and accounting. Merrill Lynch, Pierce, Fenner & Smith, Inc. was also a defendant. During the litigation, Merrill Lynch settled with Jones Nissan for $120,000 and was dismissed. The circuit court subsequently granted Jones Nissan partial summary judgment on its breach of contract and conversion claims against THAG and Nissan of Sumter (the Appellants). The remaining claims—including fraud, quantum meruit, and the accounting claims—were not resolved. Appellants took an interlocutory appeal.
Appellants raised three issues: (1) they were entitled to a set-off credit against any judgment for the $120,000 Merrill Lynch had paid Jones Nissan in settlement; (2) the grant of summary judgment was improper because genuine issues of material fact existed; and (3) summary judgment was premature because discovery had not been completed. The circuit court’s ruling had been that the contract and collateral agreement were unambiguous, Appellants had ceased payment, the remaining balance was undisputed, and Appellants had moved the collateral to other accounts. Appellants argued they had produced evidence creating factual disputes and that three years of litigation had not given them enough time to develop the record.
The Court’s Holding
Affirmed. A unanimous panel affirmed the partial summary judgment in Jones Nissan’s favor and dismissed the set-off issue as not properly before the court.
On the set-off issue: the court held that a non-settling defendant’s right to credit for a co-defendant’s settlement does not arise until after a final judgment has been entered on all remaining claims. Under South Carolina law, “[a] non-settling defendant is entitled to credit for the amount paid by another defendant who settles for the same cause of action.” Rutland v. S.C. Dep't of Transp., 400 S.C. 209, 216, 734 S.E.2d 142, 145 (2012). But under Rule 201(a), SCACR, appeals may be taken from “final judgment, appealable order or decision” only. Here, claims for fraud, quantum meruit, and other theories remained pending; the summary judgment on breach of contract and conversion was not a final disposition of all claims. Because no right to a set-off had yet accrued, the issue was not ripe for appellate review.
On the merits of the summary judgment: the court found no genuine issue of material fact. The contract and collateral agreement were validly executed, Appellants admitted they ceased payment, the remaining balance was undisputed on the unambiguous terms of the agreement, and the collateral was moved to other accounts Appellants controlled. Appellants failed to produce evidence supporting their counterclaims. The court also rejected the discovery argument: Appellants had three years to develop the record and advanced no explanation why that was insufficient or what additional evidence further discovery would have revealed.
Key Takeaways
- A non-settling defendant’s right to a set-off for a co-defendant’s settlement payment does not arise until final judgment has been entered on all remaining claims; raising the set-off in an interlocutory appeal of partial summary judgment is premature and will be dismissed as not ripe.
- Partial summary judgment on discrete claims (breach of contract and conversion) can stand even when other claims remain pending, provided those remaining claims do not create a genuine issue of material fact as to the resolved claims.
- To defeat summary judgment on grounds of incomplete discovery, the moving party must advance a “good reason why the time was insufficient” and explain what specific evidence additional discovery would have produced; general assertions of inadequate time are insufficient.
- Appellants who wish to assert a set-off right for a co-defendant’s settlement should preserve the argument for post-judgment proceedings after all remaining claims are resolved—not in an interlocutory appeal where the right has not yet accrued.
Why It Matters
For South Carolina commercial litigators, Jones Nissan clarifies the timing of set-off rights in multi-party, multi-claim litigation. Where some defendants settle while others do not, the set-off right under Rutland is a valuable tool for non-settling defendants—but it can only be asserted after final judgment, not in a piecemeal interlocutory appeal of partial summary judgment on some claims. Practitioners advising non-settling clients on appeal timing should note that prematurely raising a set-off argument before final judgment will result in dismissal of the issue, not a ruling on the merits.
The discovery ruling is also a practical reminder: courts will not delay summary judgment simply because the litigation has not concluded if the party seeking delay cannot identify what specific evidence additional time would produce. Three years of litigation in a commercial contract dispute will ordinarily be enough time to develop the factual record, and a failure to articulate what further discovery would accomplish will not save a party from an otherwise proper summary judgment motion.