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
Lee Pye, Appellant,
Mary B. Holmes, Charleston County Magistrate, and Charleston County, Respondents.
Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge
Unpublished Opinion No. 2008-UP-251
Submitted May 1, 2008 – Filed May 7, 2008
Bonnie Travaglio Hunt, of Mt. Pleasant, and Holly Palmer Beeson, of Columbia, for Appellant.
James A. Stuckey and Martinique M. Coval, both of Charleston, for Respondents.
PER CURIAM: This is an appeal of an order finding Lee Pye’s motion for a jury trial on her action against a Charleston County magistrate, Mary B. Holmes, and Charleston County was untimely made. We affirm.
On appeal, Pye contends the circuit court erred by (1) denying her the right to a jury trial because the issues raised by the amended pleadings were triable by jury, she timely moved to transfer the case to the jury docket, and she inadvertently failed to demand a jury trial initially; and (2) refusing to rule on her motion to reconsider the order denying a jury trial until after the bench trial was concluded.
1. We agree with Holmes that the circuit court properly denied Pye’s motion on the basis it was untimely. Pye filed this complaint in September 2003 without requesting a jury trial and amended her complaint in October 2003, again without requesting a jury trial. In her initial answer filed in January 2004, Holmes asserted multiple defenses, including failure to state a claim for which relief could be granted, judicial immunity, sovereign immunity under the South Carolina Tort Claims Act, comparative negligence, and expiration of the statute of limitations. Holmes also did not request a jury trial in her pleadings. Holmes later moved to amend her answer, and the request was granted. In her amended answer, Holmes asserted additional defenses, such as sole negligence, res judicata, and collateral estoppel. The amended answer also admitted some of the allegations that had been denied in the original answer. It was not until May 5, 2006, that Pye formally moved for the case to be transferred to the jury roster.
Rule 38 of the South Carolina Rules of Civil Procedure governs requests for a jury trial as of right and provides a party must serve a demand upon the other party in writing not later than ten days after the last pleading addressed to the issue or else a jury trial is waived:
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.
. . . .
(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties, except where an opposing party is in default under Rule 55(a).
Rule 38, SCRCP.
Rule 39(b), SCRCP further provides: “Issues of law and issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court or may be referred to a master as provided in Rule 53; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.” [Emphasis added.]
Rule 38(b), SCRCP requires a motion to transfer a matter to the jury roster be made not later than ten days after the last pleading addressed to the issue. In this case, we first note the motion to transfer was made more than ten days after the last amended answer and thus did not comply with Rule 38. In addition, Pye admitted at the hearing on the motion that she did not comply with the requirements of Rule 38.
In King v. Shorter, 291 S.C. 501, 354 S.E.2d 402 (Ct. App. 1987), this court held that the trial court did not abuse its discretion in granting a motion to amend an answer to assert a counterclaim for unfair trade practices while denying a motion to transfer the case to the jury roster. We noted three previous sets of pleadings had been filed without a request for a jury trial being made. Id. at 502, 354 S.E.2d at 403. In King, we stated: “[A] litigant’s entitlement to a jury trial on the issues presented by an amended pleading, when no prior demand for a jury trial has been made, turns on whether the amended pleadings create new issues of fact.” Id. at 503, 354 S.E.2d at 403. We concluded that the pleadings involved essentially the same facts and thus the trial court did not abuse its discretion in denying the motion to the jury calendar. Id.
Similarly, the circuit court did not abuse its discretion in this instance as Pye did not formally request a jury trial until the action had been pending for almost three years, Pye’s motion was made, in any event, more than ten days after the last pleading addressed to the issue, and the amended pleading involved essentially the same facts. Further, Pye expressly conceded that she failed to comply with the requirements of Rule 38. In denying the motion, the circuit court expressed concern about the delay of the case, the reason for Pye’s failure to request a jury trial, and the prejudice to Holmes in having to prepare for a jury trial. Thus, we cannot say the circuit court abused its discretion in this instance.
2. As to Pye’s allegation that the circuit court erred in failing to rule on her motion to reconsider until the bench trial was held, an order denying a mode of trial is immediately appealable if it denies a mode of trial to which the party is entitled. In Satcher v. Satcher, 351 S.C. 477, 570 S.E.2d 535 (Ct. App. 2002), we held that an order under Rule 38 affecting the mode of trial affects substantial rights and must be immediately appealed or any alleged error is waived. We concluded the appellant’s appeal of the denial of his motion for a jury trial under Rule 38 was untimely and therefore could not be considered on appeal because he did not appeal until after the trial had already been held. Id. at 490, 570 S.E.2d at 542. However, we did consider the appellant’s argument under Rule 39(b) as to whether the trial court had erred in failing to grant the motion as a matter of discretion. We stated, “A decision denying a jury trial based on Rule 39(b) is discretionary and not immediately appealable.” Id. We held the appellant had shown no abuse of discretion, however, because the trial court had denied the request after considering the issues involved, the prejudice to the appellant, the timeliness of the request, the docket, and the reason for the delay. In addition to the trial court’s reasons, our court stated we were unable to discern any prejudice to the appellant because the legal counterclaims had been dismissed in the action. Id.
In the case before us, Pye was not entitled to a jury trial as a matter of right based on the filing of the amended answer as it was based on essentially the same factual allegations. Pye clearly failed to timely demand a jury trial and the amended answer did not resurrect this right that had been waived. A mode of trial ruling is immediately appealable only if denies a mode of trial to which the party is entitled as a matter of right. The matter of a jury trial here was an issue committed to the discretion of the circuit court once it was waived, and we have found no abuse of discretion in this instance. Because the decision on the request for a jury trial was a matter committed to the discretion of the court, it was not immediately appealable and Pye has shown no error in the timing of the court’s ruling.
ANDERSON, HUFF, and KITTREDGE, JJ., concur.
 We decide this case without oral argument pursuant to Rule 215, SCACR.