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24893 - Cox v. Fleetwood Homes of Georgia, Inc. et al.

Davis Adv. Sh. No. 5
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

Cecil Cox and Wendy Respondents-

Cox, Petitioners,

v.

Fleetwood Homes of

Georgia, Inc., South

Atlantic Manufactured

Homes of Aiken, Inc.,

Jerry Allen, d/b/a Allen

Mobile Homes, and Mike

Parker, d/b/a Reliable

Mobile Homes Service, Defendants,



Of Whom South Atlantic

Manufactured Homes of

Aiken, Inc., and Jerry

Allen, d/b/a Allen Mobile Petitioners-

Homes, are Respondents.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Florence County

Paul M. Burch, Circuit Court Judge





Opinion No. 24893

Submitted January 20, 1999 - Filed February 1, 1999

p.1


COX v. FLEETWOOD HOMES OF GEORGIA, INC., et al





REVERSED



Marshall Winn and Wallace K. Lightsey, both of

Wyche, Burgess, Freeman & Parham, of Greenville,

for petitioners-respondents.



Frederick K. Jones, of Tolson and Jones, of Florence,

for respondents-petitioners.





PER CURIAM: Respondents-petitioners (buyers) and

petitioners-respondents (sellers) have both filed petitions for writs of

certiorari to review the Court of Appeals' decision in this matter. The

buyers' petition is denied, and the sellers' petition is granted. We dispense

with further briefing and reverse the decision of the Court of Appeals.





Buyers brought this action in Florence County, a county within

the Twelfth Judicial Circuit, seeking to recover damages for the purchase

and installation of an allegedly defective mobile home. Subsequently;

sellers alleged that the parties had settled the case and asked the circuit

court to enforce the settlement. Buyers opposed the motion arguing, among

other things, that sellers had fraudulently procured the settlement.





Judge Burch, a resident judge of the Fourth Judicial Circuit then

assigned to hold court in Florence County, granted the motion to enforce, but

did not specifically rule on the allegations of fraud. In a timely motion to

reconsider under Rules 52 and 59, SCRCP, buyers again raised the issue of

fraud, but the judge denied the motion without specifically addressing the

allegations of fraud. On appeal, the Court of Appeals reversed and

remanded the case to the circuit court for a determination whether the

settlement agreement was procured through fraud. Cox v. Fleetwood Homes

of Georgia, Inc., Op. No. 95-UP-202 (S.C. Ct. App. filed July 10, 1995). The

opinion did not specifically remand the matter to Judge Burch.

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COX v. FLEETWOOD HOMES OF GEORGIA, INC., et al





On remand, Judge Burch, who was then assigned to hold court in

the Seventh Judicial Circuit, made specific findings that the settlement had

not been fraudulently procured. Therefore, he again issued an order

enforcing the settlement agreement. By post-trial motion, buyers challenged

the judge's jurisdiction to issue the order since he was not then assigned to

hold court in the Twelfth Judicial Circuit. The judge denied this motion.





The Court of Appeals vacated the order and remanded. It

concluded that the judge lacked jurisdiction because he was not assigned to

the Twelfth Judicial Circuit at the time. Cox v. Fleetwood Homes of Georgia,

Inc., 329 S.C. 157) 494 S.E.2d 462 (Ct. App. 1997). We disagree.





As a general rule, a judge assigned to a judicial circuit must

exercise his judicial powers in that circuit while within the territorial

boundaries of the circuit. Shillito v. City of Spartanburg, 215 S.C. 83, 54

S.E.2d 521 (1949). Further, a judge assigned to hold court in a circuit in

which he is not a resident must generally exercise judicial duties relating to

the circuit during the period of the assignment. Hines v. Farr, 235 S.C. 436,

112 S.E.2d 33 (1960).





These limitations are, however, subject to several exceptions.

One of these exceptions is that a judge may issue an order regarding matters

which were submitted to the judge while presiding in the circuit. Barnett v.

Piedmont Shirt Co., 230 S.C. 34, 94 S.E.2d 1 (1956); Shillito v. City of

Spartanburg, supra; Chafee v. Rainey, 21 S.C. 11 (1883). Another exception

is that a judge retains jurisdiction to consider timely post-trial motions even

though no longer assigned to the circuit. Rules 50(e), 52(c) and 59(f),

SCRCP.





In the present case, the first opinion of the Court of Appeals

remanded the case to the circuit court to make a specific ruling on the

allegations of fraud. Since the parties had already been afforded the

opportunity to present evidence and make argument on the issue of fraud, no

further hearing was required. If a judge has jurisdiction to consider matters

which are submitted to him in the circuit or by timely post-trial motion, we

see no reason to have a different rule if such matters are resubmitted by an

appellate court for more specific findings and conclusions,





In our opinion, where a case is remanded on appeal to make

more specific factual findings or conclusions of law which do not require any

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COX v. FLEETWOOD HOMES OF GEORGIA, INC., et al





additional hearing, the judge who issued the original order has the authority

to issue an amended order even though the judge is not a resident of or then

assigned to hold court in the judicial circuit where the case arose.

Accordingly, we reverse the opinion of the Court of Appeals and reinstate the

order enforcing the settlement.



REVERSED

p.4