*1
July 2009. ORDER PLEICONES, M. COSTA J.
Respondent, Court, the Beaufort County Clerk of was in- dicted for misconduct in office and embezzlement of public funds. The Office of Disciplinary Counsel has filed a petition asking the Court to place respondent on interim suspension 17(b), RLDE, pursuant 413, SCACR, to Rule Rule because she poses a substantial threat of serious harm to the or the public justice. administration of
IT IS ORDERED that the petition granted is and respon- 17(b), RLDE, dent is suspended, pursuant to Rule Rule SCACR, from the of law in practice this State until further order of this Court. Pleicones, M. J.
/s/Costa
FOR THE COURT
No. 26878. Supreme Court of South Carolina.
Heard Feb. 2010. Refiled Dec. *5 Foster, Hill, Martin of Rock for Petitioners. John Snell, Lexington, Respondent. James Ross for Chief Justice TOAL. case,
In this
granted
Court
James G. Shore and Jan
(Petitioners)
for a
request
Shore’s
writ of certiorari to review
the court of
decision in Linda Mc
Inc. v.
appeals’
Company,
Shore,
Facts/Procedural December agreed give On to The Linda Company, (Respondent) Mc Inc. a judgment by confession as litigation settlement of over sales commissions. That unpaid 2,1995,1 judgment was entered and in provided pertinent June part:
1. confess in [Respondent] [Petitioners] $110,000.00 hereby amount of and authorize the Clerk Carolina, Court for Lancaster County, judg- South to enter [Petitioners], ment in favor of [Respondent] against jointly amount, severally, and for such plus such costs and reason- attorneys’ able fees incurred [Respondent] enforcing guaranty, unconditional of which copy is attached (the hereto as Exhibit 1 “Guaranty”). further [Petitioners] waive the any service of summons and complaint praying such judgment.
2. agree [Respondent] may immediately, [Petitioners] through attorneys, affidavit its set forth the correct subject levy 1. The was execution until June amount of this Judgment by adjusting amount stated above for credits previously applied by [Respondent], and that [Respondent] may apply to a court of competent jurisdiction [Petitioners], for a against jointly and *6 in the severally, amount of the total owing sum due and hereunder, plus costs and reasonable in- attorneys’ fees by curred in [Respondent] the enforcing Guaranty, without further notice to and without authority [Petitioners] further [Petitioners]; however, from provided, that in may no event $110,000.00, said sum exceed plus costs and reasonable attorneys’ fees incurred by [Respondent] in enforcing the Guaranty. authorize the entry judgment [Petitioners] for the amount due owing affidavit, and as set out in the which judgment will continue to bear interest at the highest legal rate permitted by law. Judgment by The Confession is not contingent upon any other considerations or proceedings and the Court is authorized to judgment enter for the amount set forth in the affidavit. entered,
Sometime after the judgment was paid Petitioners $55,000. Respondent 20, 2004, February On Respondent a wrote letter to Petitioners acknowledging agreement to waive all post-judgment interest if Respondent received the $55,000 7, remaining before May 2004. paid Re $26,750 spondent by check dated May 2004.2 July On filed a Respondent petition for supplemen- tal proceedings alleging Petitioners possessed assets sub- ject to execution on the judgment. Petitioners issued a check $28,500 to Respondent the amount of on August 9, 2004, On August the trial court granted Respondent’s petition supplemental the proceedings referred matter to a special referee. 1, 2004,
On October the special referee conducted a hearing to determine whether Petitioners had assets that could satisfy the balance judgment. Petitioners filed a motion 12(b)(1), SCRCP, to dismiss under Rule the alleging sought judgment, 2. The sheriff to execute on the but the execution was returned nulla by bona. Nulla bona is form of "[a] return a sheriff or upon constable an execution when the debtor has no seizable (9th property jurisdiction.” Dictionary within the Black’s Law ed.2009). and the special was void. Petitioners’ motion was denied referee concluded the was valid and enforceable. May special On referee conducted another at which Petitioners hearing argued February was modified left agreement phone message by Jan (Jan) attorney such that the Respondent’s parties Shore reached an accord and satisfaction. Jan testified that on May 13, 2004 message she called and left a on Respondent’s attorney’s machine she intended to answering stating split payments remainder of the balance into two and “that if there any problem was with that call me.”3 In that please she also stated she message pay would balance end quarter, July of the next which would have been or August. Respondent’s attorney receiving testified that he recalled phone calls from Petitioners but did not know what were they about and never called them back.4 3, 2005, the special report
On June referee issued his to the circuit court finding Petitioners owed interest outstanding *7 date, from the of the entry judgment to as well as costs and fees, attorneys’ and there had been no accord and satisfaction. that day, On same the circuit court issued an order to execute and assets owned levy upon by Petitioners. Petitioners did not raise the matter of the in the judgment’s expiration trial court. (1) to the court of appealed appeals, which held: void;
the absence of an affidavit did not render the judgment
(2) because Petitioners
argue
did not
that S.C.Code Ann.
(2005)
§ 15-39-30
deprived
of active
energy
court,
the trial
preserved
that
issue was not
for appellate
(3)
review;
(4)
satisfaction;
there was no accord and
and
because
was not
estoppel
presented
to and ruled
upon
court,
trial
appellate review. Linda
it was not
preserved
Inc.,
Mc
437-42,
Company,
375
at
S.C.
3. Under the May 2004 the balance was due on May partial payment phone message hence the and came after the paid. date the balance was to be secretary log messages, 4. He that testified his would check and his but message. often did not include the substance of the appeals 5.The court of affirmed the circuit court.
Issues I. entry Was the of the void because Respondent
failed to follow the terms of the parties’ agreement to fix judgment? amount of the II. Does section 15-39-80 deprive judgment of active
energy?
III. Was there an accord and satisfaction?
IV. Should be Respondent from estopped arguing
there was agreement no accord it because did not to the respond phone message? the expiration
V. Did it render supplemental proceedings to it moot? the expiration
VI. Did of the judgment deprive the circuit jurisdiction court of proceed with supplemental pro- ceedings or execution?
VII. Did the court of appeals decision establish an unwork-
able rule of procedure?
Standard of Review “The question subject jurisdiction matter is a question 560, 567, of law.” Porter v. Depot, Labor 372 S.C. (citations omitted). (Ct.App.2007) 643 S.E.2d “The interpretation issue of of a statute is a question of law for the 433, 438, court.” Jeter v. Dep’t Transp., S.C. (2006) (citation omitted). An appellate court may decide of law with no questions particular deference to the trial court. In re Campbell, 666 S.E.2d (2008)(citation omitted). 908, 911
Law/Analysis Agreement I. Terms of the Parties’ argue Respondent failed to follow the terms of the parties’ agreement to fix the amount the of Thus, judgment. its was entry void and the court’s actions flowing entry jurisdiction. from that are without disagree. We (2005) § Ann.
S.C.Code 15-35-360 states: a by Before a confession shall be entered state- judgment the signed by ment in must be made and defendant writing oath to the effect: by following and verified his (1) judgment may It must state the amount for which be therefor; entry judgment entered and authorize the (2) due, or to it must money If it be for the due become the facts out of which it arose and must show concisely state justly that the sum confessed therefor is due or to become due; and
(3) If it be for the the purpose securing plaintiff against consti- contingent liability, concisely it must state facts tuting liability and must show that the sum confessed liability. therefor does not exceed the 60(b)(4), may Rule the court relieve a provides party SCRCP order, or his from a final or legal representative judgment, proceeding judgment if the is void. “The definition of ‘void’ only encompasses judgments under the rule from courts which provide proper process, failed to due or from judgments subject jurisdiction courts which lacked matter or personal Co., jurisdiction.” McDaniel U.S. Fid. & Guar. (citations omitted). (Ct.App.1996) Petitioners contend the lack of an affidavit from Respondent setting forth the exact amount due under the ren judgment However, the judgment language ders void.6 pertaining the affidavit in the is and not judgment permissive mandatory. It an setting states affidavit forth the correct amount of the judgment “may” be submitted The Respondent. complies statutory with the of section requirements 15-35-360 Petitioners, because it was in writing, signed by made Moreover, verified their oath. the lack of an affidavit does 60, SCRCP, not render the void under Rule because the absence of an no bearing subject affidavit has on the Hence, jurisdiction matter of the court. because the satisfies section 15-35-360 and submission of affidavit was and not permissive mandatory, appeals court of held the not correctly judgment was invalid for lack of an affidavit. argue judgment required Respondent
6. Petitioners that the to submit an setting judgment. affidavit forth the exact amount due under the
553 II. Section 15-39-30 argue section 15-39-30 deprives judg ment of active energy may and execution not issue thereon years because ten have passed since the of entry judg ment. disagree. We
The court of appeals held this argument
presented
was not
to the trial court and was
preserved
therefore not
for appel
Inc.,
Linda Mc Company,
late review.
438,
Section 15-39-30 states: Executions may issue upon judgments final or decrees at any time within ten years from the date of original entry thereof and shall have active energy during period, such thereof, without renewal or renewals and this whether any return may may or not have been made such during period on such executions. (1948),
In Hardee v. this Lynch, argument statutory dismissed the period Court may which an execution issue served as a statute of limita- tions, pleaded. which would be considered waived unless The *10 in that case stated: Court limitations,
In order for a law to be a statute of it must limiting contain within itself a statement the time specific within which an be brought.... action is to statute at [The no provides period, completely destroys issue] limitation but any right upon judgments. logical action The result of the to a utterly extinguish judgment was after the [statute] of ten the expiration years entry. from date of Hardee, 16-17, Therefore, 212 S.C. at at 183. the S.E.2d court of in case appeals this committed error when it found section 15-39-30 is a statute of limitations.
However, the in Hardee Court also stated our state’s statutes evince the “clearly legislative purpose nullify the revived, effective force of a after ten unless years, or thereon brought expiration suit be before the of the period 182; by allowed law.” Id. at Hughes S.E.2d at see also Slater, (1949) (indicat v. 214 S.C. ing filing an action lien even preserves though statutory the period expires pending). while matter is But see Garrison Owens, 442, 446-47, (1972) (“A 189 S.E.2d judgment lien is purely statutory, by its duration as fixed the legislature may not be the courts the prolonged bringing of an action to enforce the lien will not it preserve statute, beyond the time fixed the if expires such time tried.”).7 Hence, before the action is while section 15-39-30 is limitations, not a statute of operates it like a statute of limitations under the facts here. presented We want to stress that this is a narrow holding limited to facts similar to those at Hence, issue in this case. when a the party complied has with statutes, case, applicable Respondent as did in this and is merely waiting on a court’s order execution and regarding levy, year the ten limitation found section 15-39-30 is extended to when the court finally issues an order. To hold equitable approach 7. The better and more is that taken in Hardee. The approach produces seeking Garrison harsh results for those to enforce judgments. otherwise would those to enforce their put trying judgments mercy at the of the court the matter within system conclude ten-year period.8 case, 2,1995 In this was entered June and the was order issued June 2005. While the order came after the ten-year period, petition supplemental proceedings Therefore, ten-year was filed before the period expired. judgment had active on 2005 because that energy June order was the result of the supplemental proceedings filed during ten-year period. This result renders the court of appeals application preservation of issue in this case moot. conclusion,
In section 15-39-30 is not a statute of it operate limitations but does to one under these similar Furthermore, factual circumstances. if a party takes action to ten-year enforce a within the statutory period active energy, resulting order will be effective even if Hence, ten-year issued after the has period expired. regard *11 this issue the of the ing appeals decision court of should be affirmed as modified.
III. Accord and Satisfaction Petitioner contends the court of appeals erred affirming the referee’s that special decision there was no accord and satisfaction. We disagree. law,
“In an action at the court appellate will law, any correct error of but it must affirm the special findings referee’s factual unless there is no evidence that Gaskins, reasonably supports those findings.” Roberts 327 478, (citation 483, 771, S.C. 486 773 (Ct.App.1997) omitted). (1) The elements of an accord and satisfaction are (2) an agreement parties between the to settle a and dispute the of the which payment supports agree consideration the Motion, ment. Historic Charleston LLC v. Holdings, 417, (2009) (citation omitted). 448, 673 S.E.2d Like contract, satisfaction, in order to constitute an accord and (citation there must have been a of the meeting minds. Id. omitted). “The unmistakably debtor must intend and make they 8. LaRosa and Garrison are overruled to the extent are inconsistent opinion. with this fully clear that the tendered satisfies the creditor’s payment Co., Dunlap, Tremont Inc. v. demand.” Const. (citation omitted). (Ct.App.1992) 425 S.E.2d agreement discharge obligation to the there can
“Without accord, be no without an accord there can be no satisfac- and (citation omitted). tion.” Id. that due to to argue phone messages Jan’s of Respondent, Respondent
counsel for was aware Petitioners’ to the accord and not proposal modify agreement, respond- re- ing, Respondent accepted proposal allowing for the to be late. The referee found there maining payment special was never a of the minds such that an accord and meeting Moreover, special satisfaction occurred. referee found the terms comply February Petitioners did not with because balance agreement payment outstanding agreement. came after the date called for in the The court of correctly affirmed the referee’s decision be- appeals special cause there was never a of the minds meeting regarding alleged February agreement. modification of the It was unmistakably never clear that the late and payment telephone message Respondent’s attorney left to modified the agree- ment. Because there is evidence to refer- support special finding, correctly ee’s the court of affirmed the appeals special referee. Estoppel
IV. Petitioners argue Respondent estopped should be from a modification of the denying agreement took place. This issue has not been for review. preserved
Petitioners contend had a Respondent duty respond phone message, responding they Jan’s not are now from estopped denying agreement. modification The *12 court of appeals argument presented found this was neither to nor addressed the trial court and thus not for preserved H., appellate review. See In re Michael 360 S.C. 602 (2004) (“In 729, S.E.2d 732 order to an preserve issue for appeal, it must be raised to and ruled the trial upon by court.”); 505, Family Lucas v. Rawl Ltd. 359 P’ship, (2004) (“It 510-11, 712, that, 715 598 S.E.2d is well settled but circumstances, a very exceptional for few an court appellate cannot address an issue unless it was raised to upon and ruled
557 court.”). the trial The court of appeals correctly held this issue is not preserved appellate review because it was not raised to and ruled below. upon
V. Mootness Petitioners contend expiration of the judgment renders it and any proceedings to it supplemental moot. We disagree.
“An appellate court will not pass on moot and
academic
or
questions
adjudication
make an
where there
State,
557,
remains no actual controversy.” Curtis v.
345 S.C.
567,
(2001) (citation
591,
omitted).
549 S.E.2d
“Moot
differ
appeals
from
unripe appeals
that moot appeals result
Id,
when intervening events render a
nonjusticiable.”
case
“
(citation omitted).
‘A case becomes moot when
if
judgment,
rendered, will have no practical legal effect upon
existing
[the]
controversy. This is true when some event
making
occurs
it
”
impossible for
to
reviewing
grant
[the]
Court
effectual relief.’
567-68,
Id. at
VI. Matter Jurisdiction argue expiration of the de prived jurisdiction circuit court of proceed with either the supplemental proceedings or execution. We disagree.
“Subject jurisdiction matter power is ‘the to hear and determine cases of the general class to which the proceedings ” Kist, Inc., in question belong.’ Dove v. Gold 237-38, (1994) 442 (quoting Babylon Bank Quirk, (1984)). 192 Conn. A.2d The issue of subject jurisdiction matter may be at any raised time includ when ing raised for the first time to an appellate court. See *13 Gardner, Tatnall v. 564 S.E.2d (Ct.App.2002).
Even if this were to hold that the of the expiration Court foreclosed to enforce the Respondent’s ability judg- ment, subject jurisdiction it would not affect the matter of the ten-year circuit court to hear the The of the dispute. running not influence the period power does of the circuit court to hear related to section 15-39-30. disputes Rule of Procedure
VII. Unworkable Petitioner the effect of the court of argues appeals decision is to procedure. establish unworkable rule of This issue has not been for review. preserved
An argument not made an intermediate appellate court and ruled on that court is not for review in preserved Ervin, this Court. See Columbia v. City 519— (1998). 500 S.E.2d Because this issue was not presented to the court of it is not appeals, preserved for our review.
Conclusion reasons, For the aforementioned the decision of the court of appeals is affirmed as modified. E.
Acting Justices JAMES MOORE and H. JOHN WALLER, JR., BEATTY, J., concur. in concurring part, PLEICONES, J., in in a dissenting part separate opinion. in dissenting separate opinion.
Justice BEATTY. III, I, IV, V, VI, While I concur in parts and VII of the majority I with opinion, disagree majority’s analysis in II part dealing with the import interpretation of section 15-39-30. The majority concluding is correct that section view, 15-39-30 is not a statute of In my limitation. majority is incorrect in concluding operates it similar to one under the facts of this case. limitation,
Section 15-39-30 is not a statute of but it is clearly a statute of There is a repose. significant difference affirmative between the two. A statute of limitation is an defense that allows a party to avoid suit. A statute of limitation has no effect on the validity claim; it only effects the contrast, claim’s enforcement. In a statute of is not a repose Instead, claim-avoidance mechanism. a statute *14 claim, of repose extinguishes the in this case the judgment. As we have stated:
A statute of limitations is a procedural device that oper- ates as a defense to limit the remedy available from an existing cause of action. A statute of repose creates a substantive in right those protected to be free from liability after a legislatively period determined of time. Langley v. Pierce, 401, 403-04, (1993). 313 242, S.C. 438 S.E.2d 243 A statute repose typically of is an absolute time limit beyond liability which longer no exists and is not tolled any for reason to upset because do so would the econom- ic 404, legislative body. balance struck Id. at the 438 S.E.2d at 243. Summerville,
Capco
Co.,
Inc. v.
Gayle
J.H.
Constr.
368 S.C.
of
137, 142,
(2006)
38,
628
added);
S.E.2d
41
(emphasis
Harrison
v. Bevilacqua,
109, 113-14 (2003).
354 S.C.
580 S.E.2d
This
repeatedly
Court has
stated that a statute of repose is
not
Pierce,
tolled for
reason. Langley
401,
v.
313 S.C.
404,
242,
(1993);
438
142,
S.E.2d
243
Capeo, 368
at
S.C.
628
Therefore,
at
view,
S.E.2d
41.
in my
the majority’s reliance
6,
(1948)
on Hardee v.
212
Lynch,
S.C.
560
twenty years,
there was a
of
This
presumption
payment.
effective unless the
presumption
payment
judgment
was
brought
prior
expiration
twenty-year
creditor
suit
to the
however,
law,
Id. at
In its the Hardee court referred to its reaching McManus, decision in Rubber Company United States (1947), understanding S.C. S.E.2d for effects of Act No. 516 of the Acts of the Assembly General Hardee, year Statutes at 1436. Large, at at In recognizing radically that Act 516 changed operation and effect of statutes existing govern- the McManus court ing judgments, stated: Prior ... passage of the 1946 Act the limitation for *15 an bringing judgment twenty years, action on a was Section 387, 743, 1, subsection 1. Section subsection that provided judgments shall constitute a lien on the real estate of the judgment years entry. debtor for ten from date of And the 2, 4, 5, was set forth in subsections 6 and 7 of procedure 743 judgments Section as to how could be renewed or period years by revived within the of ten the service of a summons the debtor. upon judgment permitted Section 745 an judgment lapse twenty action on a after the of years entry. from the date of its 22,1946,
By general assembly Act of the March approved 1436, 44 Large Stat. at the 1 legislature repealed subsection 387, of away Section thus the taking right bring action a within upon judgment twenty years. The Act likewise 2, 4, 5, subsections 7 repealed 6 and of Section 743 of the Code, which authorized the renewal or revival of judgments within period years, the of ten and also repealed Section 745 Code, permitted which an action a upon lapse twenty years after a of from the date of the original entry thereof.
McManus,
345-46,
211
at
S.C.
As noted
the Hardee
logical result of the
“[t]he
enactment, 44
Stats.
was to
utterly extinguish
after the
expiration
years
of ten
from the date of
Hardee,
entry.”
at
S.C.
S.E.2d at 183.
specifically
The Hardee court
ques-
declined to address the
tion of what happens
timely-filed
when a
action to enforce a
judgment is not
prior
expiration
concluded
to the
of the ten-
year repose
as it
period
unnecessary
was
to resolve the issue
Hardee,
But,
before it.
Justice PLEICONES. dissent,
I respectfully and would vacate the of Ap- Court peals’ opinion and the circuit court’s “Order to Execute and Levy” filed June I concur fully Beatty’s Justice (2005). analysis Moreover, § Ann. S.C.Code 15-39-30 question whether a judgment can be enforced more than ten years after it was filed is answered conclusively by S.C.Code (2005). § Ann. 15-39-130 provides This statute sheriffs or other officer’s authority levy and execute final process ceases when the judgment’s “active ends energy” “as law,” provided by i.e. ten years after the original entry *16 fact, judgment. In an officer who fails to return the process at the first regular term of common after the pleas expiration of the judgment subject penalties is neglect duty. (2005). §Ann. S.C.Code 15-39-140 judgment Since the cannot be enforced execution and levy after ten years, it is futile to continue court proceedings after that date. Upon passage years, of ten law, is unenforceable as a process matter of and all related to it, whether in the courts or in the hands of the sheriff or other
officer, debtors, cease. line rule9 benefits bright must Such creditors, all inter by allowing and other commercial entities to review the rolls and know with parties ested certainty efficacy. the date which a will lose its upon Levy” per- to Execute and cannot be
Since “Order judgment upon predicated formed as the which it is has no energy,” “active I would vacate both the decision of the Court and that order itself. Appeals I dissent. respectfully
of all other situated
v. PLASTERING, LLC, Respondent, SOUTH CAROLINA STATE LLC, Plastering, Respondent, South Carolina State Communities, Inc., Homes, Kephart Del Webb Pulte Inc. and
Architects, Inc., Third-Party Defendants, Communities, Of Whom Del Webb Inc. and Homes, Inc., Respondents. Pulte are
No. 26882. Supreme Court of South Carolina.
Heard June 2010. Decided Oct. 2010. Rehearing Denied Jan. judgment's
9. 1 am unclear as to what action a debtor can extend a energy.” period "long "active party Either the is extended so as a has steps year period judgment” taken within the ten to enforce the or such majority’s holding” an extension is limited to the “narrow and "limited to facts similar to those at issue in this case.”