October 13, 2016
From Richland County Joseph M. Strickland, Master-in-Equity
Sims Radeker, of Harrison & Radeker, PA, of Columbia, for
Nelson Weston, Jr., Charles Joseph Webb, and Carmen Vaughn
Ganjehsani, all of Richardson Plowden & Robinson, PA, of
Columbia, for Respondent.
Proz, LLC (Salon), appeals the master-in-equity's order
denying Salon's motion to transfer the case to the
general jury docket. Salon argues (1) it did not waive its
jury trial demand, (2) the clerk of court lacked the
authority to refer the case, (3) if the clerk had the
authority to refer the case, the clerk erred in doing so, and
(4) a return to the jury docket is required because
Salon's amended answer demands a jury trial and creates
new issues of fact. We reverse and remand.
October 26, 2011, South Carolina Community Bank (Bank) filed
a foreclosure complaint against Salon for defaulting on an
$883, 634.04 note and mortgage. On November 23,
2011, Salon answered, raising several counterclaims and
demanding a jury trial. In January 2012, Bank filed a Rule
12(b)(6) motion to dismiss Salon's counterclaims; on
February 13, 2012, Bank moved to refer the case to the master
pursuant to Rule 53, SCRCP. That same day, the clerk of court
signed and filed an order of reference authorizing the master
to take testimony, determine the issues involved, report
findings of fact and conclusions of law to the circuit court,
and "enter final judgment." The order of reference was
August 2012, Salon obtained new counsel and filed a motion to
transfer the case back to the general jury docket. At a
hearing on this motion, Salon argued it did not waive its
right to a jury trial by failing to appeal the order of
reference because nothing in the record showed Salon's
prior counsel ever received the order or any notice of its
filing. Bank countered that the court would have mailed the
order to Salon's counsel, who neither objected to the
order nor appealed from it. On June 21, 2013, the master
denied the motion to transfer the case back to the general
docket without explanation. Salon filed a motion to
reconsider, but after a hearing, the master denied the motion
as it related to the transfer.
mortgage foreclosure is an action in equity."
Wachovia Bank, Nat. Ass'n v. Blackburn, 407 S.C.
321, 328, 755 S.E.2d 437, 440 (2014) (quoting Hayne Fed.
Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d
472, 475 (1997)). "In an appeal from an action in equity
tried by a judge, appellate courts may find facts in
accordance with their own views of the preponderance of the
evidence." Id. at 328, 755 S.E.2d at 441.
"However, '[w]hether a party is entitled to a jury
trial is a question of law.'" Id.
(alteration by court) (quoting Verenes v. Alvanos,
387 S.C. 11, 15, 690 S.E.2d 771, 772 (2010)). "Appellate
courts may decide questions of law with no particular
deference to the circuit court's findings."
Id.; see Snow v. Smith, 416 S.C. 72, 85,
784 S.E.2d 242, 248 (Ct. App. 2016) ("[A] reviewing
court is free to decide questions of law with no particular
deference to the [master].").
Waiver of Jury Demand
asserts it did not waive its right to a jury trial by failing
to appeal the order of reference because nothing in the
record demonstrates its former attorney ever received notice
of the order's entry or Salon ...