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Carolina First Bank v. BADD, L.L.C.

Supreme Court of South Carolina

January 28, 2015

Carolina First Bank, n/k/a TD Bank, NA, Petitioner,
v.
BADD, L.L.C., William McKown, and Charles A. Christenson, Defendants, of whom BADD, L.L.C. and William McKown are Respondents. BADD, L.L.C. and William McKown, Third-Party Plaintiffs,
v.
William Rempher, Third-Party Defendant

Heard: December 10, 2014.

Appeal From Horry County. Steven H. John, Circuit Court Judge. Appellate Case No. 2013-000107.

Thomas Wm. McGee, III, C. Mitchell Brown, Allen Mattison Bogan, all of Nelson Mullins Riley & Scarborough, L.L.P., of Columbia, for Petitioner.

Richard R. Gleissner, of Gleissner Law Firm, L.L.C., of Columbia, for Respondents.

JUSTICE PLEICONES. TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.

OPINION

Page 107

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

PLEICONES, JUSTICE:

In this mortgage foreclosure action, the Court granted Carolina First Bank's (" the Bank" ) petition for a writ of certiorari to review the Court of Appeals' decision in Carolina First Bank v. BADD, L.L.C., 400 S.C. 343, 733 S.E.2d 619 (Ct.App. 2012), which held William McKown[1] is entitled to a jury trial. We disagree and therefore reverse the decision of the Court of Appeals.

Procedural History

BADD, L.L.C. (" BADD" ), purchased three warehouse units in Myrtle Beach. To finance the transaction, BADD executed two promissory notes. A personal guaranty was also executed by McKown, who was a member of BADD. After BADD defaulted, the Bank brought this foreclosure action and included McKown as a party pursuant to S.C. Code Ann. § 29-3-660 (2007) based on his status as a guarantor.

In McKown's amended answer and counterclaim, he demanded a jury trial because the Bank sought a money judgment for the breach of a guaranty arrangement. McKown further sought an accounting and a determination that the guaranty agreement was unconscionable. McKown then asserted two counterclaims--(1) civil conspiracy and (2) breach of contract--both based on an alleged conspiracy between the Bank and William Rempher. Finally, McKown asserted third-party claims against Rempher.[2]

The Bank moved for an order of reference. The circuit granted the motion, referring the matter in its entirety to the master-in-equity.

The Court of Appeals reversed, holding McKown was entitled to a jury trial because the Bank's claim on the guaranty agreement was a separate and distinct legal claim.[3]Carolina ...


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