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2007-UP-498 - Gore v. Beneficial Mortgage

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John A. Gore, Respondent,

v.

Beneficial Mortgage Co. Of South Carolina, Appellant


Appeal From York County
 S. Jackson Kimball, III, Special Circuit Court Judge


Unpublished Opinion No. 2007-UP-498
Submitted October 1, 2007 – Filed October 25, 2007


APPEAL DISMISSED WITHOUT PREJUDICE


C. Mitchell Brown, B. Rush Smith, III, Thad H. Westbrook, and Christina Rampey Hunoval, all of Columbia, for Appellant.

John Martin Foster, of Rock Hill, for Respondent.

PER CURIAM:  Beneficial Mortgage Co. of South Carolina (Beneficial) appeals the special circuit judge’s order granting John Gore’s (Gore) motion to restore his case to the active docket.  We dismiss the appeal without prejudice.[1]

FACTS

On December 1, 2003, Gore filed a complaint against Beneficial, alleging Beneficial failed to enter satisfaction of a mortgage given to it by Gore.  Beneficial responded to the complaint in its answer filed on February 6, 2004.

The master-in-equity assigned to hear the case as a special circuit court judge sent a form letter to Gore’s counsel, dated August 5, 2004, requesting counsel send a reference fee to the judge in order to go forward with the case.[2]  The letter stated “[i]f the fee is not received within 30 days from the date of this letter, the case will be dismissed for failure to prosecute.  The case will not be restored to the roster of cases except upon motion to restore and a showing of good cause.”  (emphasis added).  The trial judge, in an order filed September 24, 2004, dismissed the action sua sponte for failure to prosecute.[3]  Gore did not appeal the order or move for reconsideration under Rule 59, SCRCP.

On November 11, 2004, Gore filed a motion to restore pursuant to Rules 40 and 41, SCRCP.  The special circuit court judge, by order filed on May 11, 2005, restored the case to the non-jury trial docket.  The judge, in his order, explained the “action was dismissed with the right to restore for good cause.”  The judge found “the parties were engaged in settlement negotiations at or about the time the order of dismissal issued.”  In granting the motion to restore, the court “noted its use of such orders as a sanction, and its practice of allowing reinstatement based on a liberal construction of ‘good cause.’ ”  The judge, observing “the body of law dealing with default in which the adverse party is required to show prejudice,” specifically found that restoration of the action would not prejudice Beneficial.  Beneficial now appeals the special circuit judge’s order granting Gore’s motion to restore.

LAW/ANALYSIS

Beneficial argues the special circuit judge’s order of dismissal for failure to prosecute dismissed the action with prejudice and operated as an adjudication on the merits.  Alternatively, Beneficial argues that even if the order did not dismiss the action with prejudice, the special circuit court judge no longer retained jurisdiction to act upon Gore’s motion to restore.

Our supreme court has held “[t]he decision on a motion to restore the case to the active docket is not a final judgment and is interlocutory and, therefore, not immediately appealable.”  Shields v. Martin Marietta Corp., 303 S.C. 469, 470, 402 S.E.2d 482, 483 (1991).  It is well settled that an interlocutory order is not immediately appealable unless it involves the merits of the case or affects a substantial right.  Brown v. County of Berkeley, 366 S.C. 354, 361, 622 S.E.2d 533, 537 (2005); S.C. Code Ann. § 14-3-330 (1977 & Supp. 2006).  Because Beneficial is appealing the grant of Gore’s motion to restore, the appeal is interlocutory and therefore not properly before us.  See Shields, 303 S.C. at 470, 402 S.E.2d at 483 (1991) (noting the “[a]voidance of trial is not a ‘substantial right’ entitling a party to immediate appeal of an interlocutory order.”) (quoting Blackwelder v. State Dept. of Human Res., 299 S.E.2d 777 (1983).

Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.  Majors v. South Carolina Secs. Com’n, 373 S.C. 153, 159, 644 S.E.2d 710, 713 (2007).  We believe the special circuit court judge in this case had the power to hear and rule upon Gore’s motion to restore.  We note the “ ‘difference between a want of jurisdiction in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction in which case the action of the trial court is not void although it may be subject to direct attack on appeal.’ ”  Fryer v. South Carolina Law Enforcement Div., 369 S.C. 395, 399, 631 S.E.2d 918, 920 (Ct. App. 2006) (quoting Thomas Howard Co. v. T.W. Graham Co., 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995).  “ ‘When a court acts with proper subject matter jurisdiction, but takes action outside of its authority, the party against whom the act is done must object and directly appeal.’ ”  Id., (quoting Coon v. Coon, 356 S.C. 342, 347-48, 588 S.E.2d 624, 627 (Ct. App. 2003), aff’d as modified, 364 S.C. 563, 614 S.E.2d 616 (2005)).

Having found Beneficial’s appeal to be interlocutory, we are precluded from addressing the remainder of the appeal.  See Brunson v. American Koyo Bearings, 367 S.C. 161, 165 n.1, 623 S.E.2d 870, 872 n.1 (Ct. App. 2005) (holding the dismissal of an appeal as interlocutory precludes the court from addressing the remaining issues).

APPEAL DISMISSED WITHOUT PREJUDICE.

ANDERSON and THOMAS, JJ., and CURETON, A.J., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  South Carolina Code section 14-11-310 (1977 & Supp. 2006) permits a master-in-equity to charge fees in cases referred to him or her in their capacity as master.  Here, however, the master sat as a special circuit court judge.

[3]  The order dismissing the action did not mention the possibility of returning the case to the roster upon a motion to restore and a showing of good cause.