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2008-MO-012 - Hammer v. Hammer

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 Supreme Court


Shirley Hammer, Appellant,

v.

Howard Hammer, Respondent.


Appeal From Richland County
 Rolly  W.  Jacobs, Family Court Judge
Stephen S. Bartlett, Family Court Judge


Memorandum Opinion No. 2008-MO-012
Heard January 8, 2008 – Filed March 10, 2008  


AFFIRMED IN PART; REVERSED IN PART


A. Mattison Bogan, Timothy E. Madden, and Reid T. Sherard, all of Nelson, Mullins, Riley & Scarborough, of Columbia, for Appellant.

James T. McLaren, and C. Dixon Lee, III, of McLaren & Lee, of Columbia, for Respondent.


JUSTICE WALLER:  These are consolidated appeals from family court orders which a) disqualified attorney J. Mark Taylor from representing Appellant, Shirley Hammer, in the underlying action for separate maintenance and support; and b) denied Appellant’s motions for a de novo trial or in the alternative to reconsider or amend the order disqualifying her attorney.  We affirm in part and reverse in part.  

FACTS

Appellant, Shirley Hammer (Wife), and Respondent, Howard Hammer (Husband), were married in September 1998, and have two small children.   Wife filed an action for separate maintenance and support in September 2005.  Wife was represented by attorney J. Mark Taylor.  

Upon learning of Taylor’s representation of Wife on September 2, 2005, Husband immediately objected to Taylor’s representation on the ground that Taylor’s law partner, Jake Moore, had previously represented Husband in a collections matter against a former girlfriend.  The collections matter ended in 1995, three years before the parties married.  Taylor concluded there was no impermissible conflict.  Husband took no further action to have Wife’s attorney relieved. 

A Temporary Consent Order was entered on September 14, 2005, stipulating to custody, visitation, and financial matters.  Approximately 15 months  later, on December 8, 2006, Wife filed a Complaint and Rule to Show Cause seeking to have Husband held in contempt for failing to comply with the Temporary Consent Order.  Husband responded and moved to have attorney J. Mark Taylor disqualified from representing Wife due to his partnership with Jake Moore.  Husband contended Taylor had imputed knowledge of his “emotional makeup” and that the prior matter involved “interpersonal relationships and other matters of a private, confidential and personal nature among other things.” 

A hearing was held before Judge Rolly Jacobs on April 11, 2007.  At the conclusion of the hearing, Judge Jacobs orally ruled that Taylor was disqualified from representing Wife due to his partnership in the firm which previously represented Husband in the collection action against the former girlfriend.  Judge Jacobs instructed Husband’s attorney, James McLaren, to prepare an order, which he did.  After being reviewed by both sides, a proposed order was mailed to Judge Jacobs on Friday, May 4, 2007.  Judge Jacobs signed the order on Tuesday, May 8, 2007; he then forwarded the order to McLaren for filing.  The order arrived at McLaren’s office on Friday, May 11, 2007, a day when McLaren was in Court in Greenville.   Judge Jacobs died unexpectedly on Sunday, May 13, 2007.  McLaren filed the order with the Richland County Clerk of Court on Tuesday, May 15, 2007.

On May 18, 2007, Wife filed a Motion for a De Novo Hearing and/or Reconsideration, Alteration, or Amendment alleging Judge Jacobs’ order was void because it had not been filed at the time of his death.  Judge Stephen Bartlett held a hearing on May 31, 2007.  Judge Bartlett held that, pursuant to Rule 63, SCRCP, Judge Jacobs’ order had been issued at the time of his death, such that his order was a valid order and therefore he, Judge Bartlett, was without authority or jurisdiction to alter or amend Judge Jacobs’ order.  Judge Bartlett declined to consider the affidavits of Wife filed subsequent to the hearing before Judge Jacobs, and declined to address the merits of Wife’s contention that her attorney had been improperly disqualified.  Wife appeals both orders.[1]

ISSUES

1.  Did Judge Bartlett err in holding Judge Jacobs’ order was valid and enforceable, notwithstanding it was not filed until after Judge Jacobs’ death?

2. Did Judge Jacobs err in ruling Taylor was prohibited from representing Wife?

1.  JUDGE BARTLETT’S ORDER

Wife contends Judge Jacobs’ order is void and that she is entitled to a new trial pursuant to this Court’s opinion in Christy v. Christy, 354 S.C. 203, 580 S.E.2d 444 (2004), and Rule 63, SCRCP.  We disagree. 

Christy involved the interpretation of Rule 63, SCRCP, prior to its 2004 amendment.  In Christy, a family court judge (Judge Black) heard claims relating to a common law marriage but became incapacitated prior to signing an order.  A second family court judge (Judge Segars-Andrews) succeeded Judge Black, and denied the respondent’s motion for a new trial pursuant to Rule 63, SCRCP.  Judge Segars-Andrews later signed an order, based in part on a draft order submitted to Judge Black.  The order found no common law marriage.  The Court of Appeals vacated Judge Segars-Andrews’ order, finding she erred in denying respondent’s request for a new trial following Judge Black’s incapacity; the Court of Appeals remanded the common law marriage issue for a new determination.  Christy v. Christy, 347 S.C. 503, 556 S.E.2d 701 (Ct. App. 2001).  This Court affirmed as modified.  Christy, 354 S.C. 203, 580 S.E.2d 444.  Although we found no error in the Court of Appeals’ analysis of Rule 63, SCRCP, we found the case was governed by another principle of state law, to wit, the principle that “[u]ntil the paper has been delivered by the judge to the clerk of court, to be filed by him as an order in the case, it is subject to the control of the judge, and may be withdrawn at any time before such delivery.”  Christy, 354 S.C. at 206, 580 S.E.2d at 446.  No written order having been filed with the clerk of court prior to Judge Black’s incapacity, this Court held a new trial was required. 

Relying on Christy, Wife contends Judge Bartlett erred in denying her motion for a new trial.  We disagree.  At the time Christy was decided, Rule 63, SCRCP, provided:

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then the resident judge of the circuit or any other judge having jurisdiction in the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

(emphasis supplied).  However, the year following our opinion in Christy, Rule 63 was amended to conform to the requirements of Rule 63, FRCP.   It now reads:

If at any time after a trial or hearing has been commenced, but before the final order or judgment has been issued, the judge is unable to proceed, a successor judge shall be assigned. The successor judge may proceed upon certifying familiarity with the record and determining that the proceedings may be completed without prejudice to the parties. In a hearing or a trial without a jury, the successor judge shall, at the request of a party, recall any witness whose testimony is material and disputed and who is available to testify without undue burden. A successor judge may also provide for the recall of any witnesses.

(emphasis supplied). 

Judge Bartlett found the purpose of Rule 63 was to ensure that a proceeding which had started had been completed.  He further found that the 2004 amendments made two changes: 1) changing the language from filed to issued, and 2) removing the authority of the successor to grant a new trial.  He found under the unique facts of this case, that Judge Jacobs had completed the proceedings before him such that there was no need for a successor judge.  We agree. 

The purpose of Rule 63 is to ensure that a proceeding has been completed.  Here, it is clear both from Judge Jacobs’ bench rulings, and the signed order that the hearing was complete.  Wife’s reliance upon Christy overlooks the amendment to Rule 63, and the deliberate inclusion of the language concerning when a final judgment or order has been “issued.”  Given the specific language of the rule, it is not for this Court to attach a new meaning.  See Farnswoth v. Davis Heating and Air Cond., 367 S.E.2d 634, 627 S.E.2d 724 (2006); Maxwell v. Genez, 356 S.C. 617, 620, 591 S.E.2d 26, 27 (2003) (in interpreting the meaning of Rules of Civil Procedure, this Court applies the same rules of construction used to interpret statutes); State v. Muldrow, 348 S.C. 264, 268, 559 S.E.2d 847, 849 (2002) (words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation).  

Under the very limited facts of this case, we find Judge Jacobs’ order was “issued” after it was signed and sent to Counsel for filing. 

2.  DISQUALIFICATION OF ATTORNEY TAYLOR

Wife asserts Judge Jacobs erred in disqualifying attorney Taylor, contending Husband waived any right to complain about any alleged conflict on the part of Taylor.   We agree.   We find Husband was estopped to seek disqualification of Wife’s attorney where he waited for fifteen months after institution of the proceedings, at a time when Wife sought to have him held in contempt.  Cf.  Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) (one who delays unreasonably could be said to be estopped from asserting a claim if another has relied on that delay to his detriment).     

In any event, we do not find that the prior representation by attorney Taylor’s partner was substantially related to the present matter.  Townsend v. Townsend, 323 S.C. 309, 317, 474 S.E.2d 424, 429 (1996).  Accordingly, Judge Jacobs erred in disqualifying Wife’s attorney.

CONCLUSION

We affirm Judge Bartlett’s order holding Judge Jacobs’ order valid and enforceable.  However, we reverse Judge Jacobs’ order disqualifying Wife’s attorney.

AFFIRMED IN PART, REVERSED IN PART.

TOAL, C.J., MOORE, PLEICONES and BEATTY, JJ., concur.


[1]  The appeals were transferred from the Court of Appeals to this Court pursuant to Rule 204(b), SCACR.