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2007-UP-501 - Ex Parte Shawnee Holdings v. Truitt

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

Ex Parte:

Shawnee Holdings, LLC, Appellant,

In Re: MidFirst Bank, Respondent,

v.

Ricky Ray Truitt a/k/a Ricky Truitt and Jackie Lee Truitt f/k/a Jackie Runyon, Respondents.


Appeal From Horry County
 J. Stanton Cross, Jr., Master-in-Equity


Unpublished Opinion No.  2007-UP-501
Submitted October 1, 2007 – Filed October 29, 2007


AFFIRMED IN PART AND REMANDED


Randall L. Hartman, of North Myrtle Beach, for Appellant.

John J. Hearn, Reginald P. Corley, and Robert J. Thomas, all of Columbia and William Young, of North Myrtle Beach, for Respondents.

PER CURIAM:  Shawnee Holdings, LLC (Shawnee), a third-party purchaser, appeals the master-in-equity’s order setting aside a foreclosure sale and asks this Court to set aside a subsequent foreclosure sale.  We affirm in part and remand.

FACTS

Ricky Ray Truitt and Jackie Lee Truitt (Truitts) obtained a mortgage on property in Little River, South Carolina, from Mortgage Electronic Registration Systems (Mortgage Electronic).  Eventually, the Truitts stopped making payments on the mortgage.  Mortgage Electronic foreclosed on the subject property, and a foreclosure sale was held in Horry County on June 5, 2006.[1]  Mortgage Electronic gave bidding instructions to its attorney regarding the maximum bid Mortgage Electronic would make on the property.  Mortgage Electronic authorized a bid not to exceed $120,505.32.  Mortgage Electronic’s attorney forwarded the bidding instructions to Mary Alice Hendrick (Hendrick), who has been responsible for handling the bidding in judicial sales at the Horry County courthouse for twenty to twenty-five years.  However, when the bidding began, Hendrick stopped bidding at $85,000.  As a result, Shawnee purchased the subject property for $85,000. 

Mortgage Electronic made a motion to set aside the foreclosure sale on the basis of bidder mistake.  At the hearing on the motion, Hendrick testified to the circumstances surrounding the sale and to the fact that she has handled the bidding for the Horry County courthouse for twenty to twenty-five years.[2]  Hendrick testified she had “no clue” as to what happened the day of the sale and described her failure to continue bidding as a “total mistake.”    

The master entered an order setting aside the June 5, 2006 foreclosure sale pursuant to Rule 60(a), SCRCP, on the basis of bidder mistake.  The property was then resold at a subsequent foreclosure sale on August 7, 2006.  Shawnee made a motion to have the subsequent sale set aside.[3]  The master did not rule on this motion.  This appeal followed. 

STANDARD OF REVIEW

“A mortgage foreclosure is an action in equity.  Our scope of review of a case heard by a master who enters a final judgment is to determine facts in accordance with our own view of the preponderance of the evidence.”  E. Sav. Bank, FSB v. Sanders, 373 S.C. 349, 354, 644 S.E.2d 802, 805 (Ct. App. 2007).  “However, the determination of whether a judicial sale should be set aside is a matter left to the sound discretion of the trial court.”  Id.  “The review of a judicial sale is equitable in nature and within the discretion of the trial court.”  Id.

LAW/ANALYSIS

I.  Setting Aside the Second Sale

Shawnee argues the second foreclosure sale should be set aside because the thirty-day appeal period stemming from the first foreclosure sale had not expired prior to the second sale. 

This Court follows the well-settled rule that unless a question has been presented to the court below for consideration, we will not consider the question on appeal.  Williamson v. S.C. Elec. & Gas Co., 236 S.C. 101, 107, 113 S.E.2d 345, 348 (1960).  “An appellate court exists for the correction of errors committed in a lower court, and if such court has not had the opportunity to decide the question presented, there is no error for the appellate court to correct.”  Id.  There must be some evidence in the record that the question was presented to or passed upon by the court below for this Court to address that question.  Cooper v. Firemen’s Fund Ins. Co., 252 S.C. 629, 634-35, 167 S.E.2d 745, 748 (1969). 

Shawnee filed a motion to set aside the second foreclosure sale but never gave the master an opportunity to rule upon the motion before filing and serving the present appeal to set aside both foreclosure sales.[4]  Shawnee filed the motion to set aside the second sale on the same day the notice of appeal was filed.  In order to appeal the second sale, the motion must have been raised to and ruled upon by the master.  Shawnee failed to seek a ruling from the master regarding the second foreclosure sale; accordingly, the issue of setting aside that sale is not ripe for our review.  We remand the issue to the master to determine whether Shawnee is entitled to have the second foreclosure sale set aside.     

II.      Order Setting Aside First Sale

Shawnee contends the master erred in setting aside the first foreclosure sale based on bidder mistake.  We disagree.

South Carolina Rules of Civil Procedure empower the court to correct clerical errors and mistakes in judgments and orders.  Rule 60(a), SCRCP.  Rule 60(a) provides in pertinent part: “Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”  By definition, a clerical error is a mistake in writing or copying, and “[a]s applied to judgments and decrees, it is a mistake or omission by a clerk, counsel, judge or printer which is not the result of exercise of judicial function.”  Dion v. Ravenel, Eiserhardt Assoc., 316 S.C. 226, 230, 449 S.E.2d 251, 253 (Ct. App. 1994).  Rule 60(a) has been found to be an appropriate mechanism for setting aside a judicial sale where a court employee commits a clerical error.  See Goethe v. Cleland, 323 S.C. 50, 53, 448 S.E.2d 574, 575 (Ct. App. 1994) (finding the clerk of court’s typographical error concerning the time period in which bidding would remain open was a clerical error).   

Under the facts of this case, we find the error made in the bidding process to be clerical in nature.  Rule 60(a), therefore, provided the master with discretion to correct the mistake and set aside the foreclosure sale.  Shawnee argues Hendrick was actually an agent for Mortgage Electric, and the master did not have discretion to correct the agent’s mistake.    

When deciding issues on appeal, this Court is confined to the record.  Timms v. Timms, 286 S.C. 291, 294, 333 S.E.2d 74, 75 (Ct. App. 1985).  To find an agency relationship, the record must provide at least some evidence to support that finding.  See Young v. S.C. Dep’t of Disabilities & Special Needs, 374 S.C. 360, ___, 649 S.E.2d 488, 492 (2007) (finding the record was devoid of any evidence to support a conclusion of an apparent agency relationship).     

In the present case, the record is devoid of any evidence establishing an agency relationship between Hendrick and Mortgage Electronic.  The only evidence in the record indicates Hendrick has handled the bidding in the Horry County courthouse for twenty to twenty-five years.  Although Shawnee argues Hendrick was actually an agent for Mortgage Electronic at the time she was handling the bidding in the foreclosure sale, Shawnee failed to present any evidence to support this argument.  Without evidence of Hendrick’s relationship to Mortgage Electronic, we cannot find that there was an agency relationship between the two.    

CONCLUSION

Based on the foregoing, the order of the master is

AFFIRMED IN PART AND REMANDED.[5]

STILWELL, SHORT, and WILLIAMS, JJ., concur.


[1] The name of the Respondent is MidFirst Bank on the briefs and record, but apparently, Mortgage Electronic and MidFirst Bank are related or share the same interest.

[2] At the time of bidding, Hendrick was the secretary for Circuit Court Judge John Breeden. 

[3]  Shawnee alleges it did not receive written notice of the order setting aside the first sale until August 16, 2006, nor did it have notice of the subsequent sale.  The motion to set aside the sale and the notice of appeal were both filed and served on September 12, 2006. 

[4] Both parties stated in their briefs the master informally notified them he would not rule on the motion to set aside the second sale due to the filing of the notice of appeal. 

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