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DION v. RAVENEL

September 6, 1994

RAYMOND O. DION, ELEANOR DION FAIREY, THOMAS RAYMOND DION, MARY DION GEORGION AND WILLIAM HUMPHREYS DION, RESPONDENTS
v.
RAVENEL, EISERHARDT ASSOCIATES, A SOUTH CAROLINA LIMITED PARTNERSHIP, CHARLES E. EISERHARDT, JR., CHARLES D. RAVENEL, PATRICK O'CONNOR, WILLMS TRUCKING COMPANY, INC., AND LAURA O. CANTRELL, APPELLANTS.



Appeal from Charleston County Louis E. Condon, Master-In-Equity.

The opinion of the court was delivered by: Shaw, Judge:

The master, after granting foreclosure on certain highland property in Charleston County, amended his order pursuant to a motion by the respondents, hereinafter Dions, under Rule 60(a), SCRCP to include in the description of the property a causeway providing access to the highland property across the surrounding marsh. Ravenel, Eiserhardt Associates, Charles E. Eiserhardt, Jr., and Charles D. Ravenel, hereinafter Ravenel, and Patrick O'Connor appeal.*fn1 We reverse and remand.

The Dions sold the highland property in question, along with surrounding marshland and a right of way, to Ravenel for $960,000. The Dions received a purchase money mortgage on the highland property but not on the marshland. (O'Connor subsequently acquired a mortgage on the entire property, including the marshland.)

The Dions brought a foreclosure action when the mortgage became delinquent, and the master issued a Judgment of Foreclosure and Sale by Order dated December 14, 1991, and filed December 16, 1991. The Dions thereafter obtained title to the property by virtue of a Master's Deed.

The description of the property in the Judgment of Foreclosure, reflecting the language in the mortgage, was as follows:

  ALL THAT CERTAIN highland portion of Raccoon Island
  and Hog Island containing One Hundred Twenty Three (123)
  acres of highland on Raccoon Island and Two (2) acres of
  highland on Hog Island as more fully shown on a Plat
  entitled "A Plat of Raccoon Island And Hog Island With
  Adjacent Marsh Lands Comprising One Body Of Land
  Generally Known As Raccoon Island Located On The West End
  Of Edisto Island In Charleston County, S.C., Containing
  1,743 Acres  -" by H.H. Foster, L.S., dated June 3,
  1967, and recorded December 12, 1967, in Book W-166 in
  the R.M.C. Office of Charleston County. Said highland
  has such shape, buttings, boundings and dimensions as
  will by reference to said Plat more fully and at large
  appear.
    Together with that certain easement of right-of-way
  (50 feet wide) from Raccoon Island Road to Raccoon Island
  Causeway, on, over, upon and across that certain property
  now formerly, of Freddie B. King, for ingress, egress and
  regress to and from the property hereinabove referred to
  and described, granted and conveyed by and under that
  certain instrument from Freddie B. King to Jeanne Marie
  Lee, et al., dated July 14, 1964, and of record in the
  R.M.C. Office of Charleston County in Book Y-81, Page
  201, and as shown and delineated on that certain Plat by
  A. L. Glenn, P.E. & L.S., dated January 30, 1964,
  attached to, and made a part and parcel of the instrument
  above-referred to, and of record in the office aforesaid
  in Plat Book S, Page 32.
By this language, the foreclosed property included an easement giving access to the causeway over adjacent property, but did not specify the causeway itself. Without the causeway, the highland property is accessible only by water.

The Dions, encountering difficulties marketing the property, filed a motion on December 17, 1992, seeking an amendment of the Order of Foreclosure and a "corrective Master's deed" to include the causeway across the marshland in the description of the property, arguing the causeway was highland.

O'Connor, whose mortgage had priority as to the marshland but was junior as to the highland, argued against the motion, maintaining the causeway was part of the marshland property. Ravenel also argued against the motion, maintaining the causeway was not included in the property foreclosed upon.

The master, by Supplemental Order dated February 10, 1993, found the causeway was not part of the marshland mortgaged to O'Connor, but rather was included in the highland property mortgaged to the Dions. The master further found it "frivolous to assume that the [Dions] would receive a Purchase Money Mortgage of almost One Million Dollars to property they previously owned with an existing causeway that served as the only access to the property and not intended the causeway be within the description of the property mortgaged to them." The master then ordered the December 14, 1991 Judgment of Foreclosure and Sale supplemented with the following additional description:

    Together with that certain causeway providing access
  to Hog and Raccoon Islands, said causeway known as
  Raccoon Island Causeway leading from the easement
  recorded in the R.M.C. Office for Charleston County in
  Book Y-81, at Page 201, as described above, and thence
  over the marsh to Hog Island and thence over the marsh to
  Raccoon Island, said causeway being shown as a double
  dotted line on a Plat by H. H. Foster, L.S., dated June
  3, 1967, and recorded December 12, 1967, in Book W-166 in
  the R.M.C. Office for Charleston County.
Following a Motion for Rehearing filed by O'Connor, the master responded to additional jurisdictional issues. The master found it had jurisdiction in this matter to enter, his Supplemental Order of February 10, 1993, and that the motion was timely pursuant to Rule 60, SCRCP. The master denied the motion of Ravenel to supplement the order by including an additional Master's Sale. The master also quashed a March 2, 1993 request by Ravenel for an order of appraisal.

Appellants contend the master erred in amending the Judgment of Foreclosure pursuant to Rule 60(a), SCRCP to include the causeway in the description. They argue there was no "typo" or clerical error in the original description and the master could not alter the property description to include other property without such a clerical mistake. We agree.

Rule 60 (a), SCRCP provides in pertinent part:

  Clerical mistakes in judgments, orders or
  other parts of the record and errors therein
  arising from oversight or omission may be
  corrected by the court at any time of its own
  initiative or on the motion of any party and
  after such notice, if any, as the court
  orders.
Generally, a clerical error is defined as a mistake in writing or copying. See Black's Law Dictionary 252 (6th ed. 1990). As applied to judgments and decrees, it is a mistake or omission by a clerk, counsel, judge or printer which is not the result of exercise of judicial function. Id. While a court may correct mistakes or clerical errors in its own process to make it conform to the record, it cannot change the scope of the judgment. Michel v. Michel, 289 S.C. 187, 345 S.E.2d 730 (Ct.App. 1986).

We hold the Master's Supplemental Order did not correct a clerical mistake and therefore was improper pursuant to Rule 60(a), SCRCP. The parties vigorously argued the issue of whether or not the causeway was included in the original mortgage from Ravenel to the Dions at the motion hearing. It is clear this issue was neither raised nor addressed at the foreclosure proceeding. There is no evidence of an "oversight" or "omission" resulting in the exclusion of the causeway from the description in the Judgment of Foreclosure. To the contrary, it appears the description of the property in the foreclosure judgment is identical to that in the mortgage from Ravenel to the Dions. To have been an "oversight" or "omission", by definition, it could not have been left out as the result of exercise of ...


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