800 S.E.2d 488
S.C. Ct. App.2017Background
- Bank filed foreclosure against Salon for default on a mortgage note; Salon answered and timely demanded a jury in its answer.
- Bank moved to refer the case to a master under Rule 53; the clerk signed and filed an order of reference without any recorded objection or circuit-court finding on the jury demand.
- Salon obtained new counsel, moved to transfer the case back to the jury docket, and argued its earlier counsel never received notice of the order of reference.
- The master denied Salon’s motion to transfer; Salon amended its answer to add and revise counterclaims, including a UTPA claim seeking treble damages.
- The court of appeals reviewed whether Salon waived its jury demand, whether the clerk had authority to refer after a jury demand, and whether any counterclaims entitled Salon to a jury trial; it reversed and remanded for return to the jury docket.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Salon) | Held |
|---|---|---|---|
| Waiver of jury demand by failure to appeal order of reference | Salon waived by not appealing the clerk’s order of reference | Salon’s counsel never received notice; no express waiver shown | No waiver; insufficient evidence of notice or consent to infer waiver |
| Clerk’s authority to refer after a jury demand | Rule 53(b) permits clerk to refer foreclosure cases to a master | Clerk cannot refer when a valid jury demand is already in the pleadings | Clerk lacked authority to refer once Salon had timely demanded a jury; referral was improper |
| Nature of counterclaims (legal vs. equitable) | Counterclaims are related to foreclosure and do not require jury | Salon’s amended counterclaims include legal claims (e.g., UTPA) that are compulsory | At least some counterclaims (UTPA) are legal and compulsory, entitling Salon to a jury trial |
| Appropriate remedy/procedure on remand | Leave case with master or deny jury transfer | Return the case to the jury docket and separate or coordinated trials as needed | Reversed and remanded: case returned to jury docket; circuit court to determine remaining equitable issues and any reference for them |
Key Cases Cited
- Wachovia Bank, Nat. Ass’n v. Blackburn, 407 S.C. 321, 755 S.E.2d 437 (discusses equitable nature of foreclosure and jury-right questions)
- Carolina First Bank v. BADD, L.L.C., 414 S.C. 289, 778 S.E.2d 106 (defines when counterclaims are legal and compulsory in foreclosure actions)
- Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (waivers of jury trial are not presumed; strict construction)
- First Union Nat. Bank of S.C. v. Soden, 333 S.C. 554, 511 S.E.2d 372 (orders affecting mode of trial must be appealed immediately)
- Verenes v. Alvanos, 387 S.C. 11, 690 S.E.2d 771 (jury-right questions are questions of law)
- Lester v. Dawson, 327 S.C. 263, 491 S.E.2d 240 (legal/equitable distinction guides jury right)
- N.C. Fed. Sav. & Loan Ass’n v. DAV Corp., 298 S.C. 514, 381 S.E.2d 903 (UTPA counterclaim treated as legal and compulsory)
- Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 489 S.E.2d 472 (foreclosure is an action in equity)