Brown v. Harper

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

Jerry Louis Brown,       
Appellant,

v.

Sylvester R. Harper; and Charleston Police Department,       
Respondents.

Appeal From Charleston County

Roger M. Young, Special Circuit Court
Judge

Unpublished Opinion No. 2004-UP-368

Submitted March 19, 2004 – Filed June
10, 2004

AFFIRMED IN PART; APPEAL DISMISSED
IN PART

Jerry Louis Brown, of Ridgeville, pro se.

Sandra J. Senn, of Charleston and Stephanie Pendarvis McDonald,
of Mt. Pleasant, for Respondents.

PER CURIAM:  Jerry Louis Brown appeals the
dismissal of his action for damages allegedly resulting from a police investigation
and the service of arrest warrants on him.  We dismiss Brown’s appeal of the
issues raised in his motion to alter judgment and affirm the trial court’s ruling
on the remaining issue. [1]

FACTS AND PROCEDURAL BACKGROUND

On October 25, 2000, Brown, an inmate in the custody
of the South Carolina Department of Corrections, brought a civil rights action
in the United States District Court against Sylvester R. Harper and the Charleston
Police Department, alleging, among other things, fraud and negligence.  On
October 31, 2000, United States Magistrate Judge Joseph R. McCrorey issued a
report recommending that the District Court dismiss Brown’s complaint without
prejudice and without issuance and service of process.

On December 27, 2000, Brown filed an action in
the Ninth Judicial Circuit Court of Common Pleas alleging among other things
that Harper, an officer with the Charleston Police Department, violated
Brown’s civil rights during the course of an investigation concerning Brown.
[2]

On February 2, 2001, Defendants notified Brown
the action was removed to the Charleston Division of United States District
Court for the District of South Carolina.  By order entered April 26,
2001, United States District Judge David C. Norton dismissed Brown’s action
without prejudice and denied Brown’s request to remand the case to the Charleston
County Court of Common Pleas, but also provided that Brown could refile in state
court if he wished.

On June 15, 2001, Brown filed another
action against Harper and the Charleston Police Department in the Ninth Judicial
Circuit Court of Common Pleas.  Defendants moved to dismiss the action
on July 12, 2001.  On August 10, 2001, Brown filed a “COMPLAINT OF JOINDERS
AS DEFENDANTS” against Julie J. Armstrong and Sandra J. Senn “in there personal
capacitys and professional capacitys.”
[3]   Defendants then filed a motion to dismiss Brown’s “complaint
of joinders” and requested other relief, including sanctions against Brown,
a preliminary injunction on future cases, and the imposition of a “strike” against
Brown.  In response, Brown moved to strike Defendants’ motion.

On May 1, 2002, Judge Young, sitting as
a special circuit judge, conducted a hearing on both motions.  At the
conclusion of the hearing, Brown sought and received an additional ten days
to file a supplemental memorandum of law and any other materials he felt necessary
to respond to Defendants’ arguments.

By order dated and filed July 12, 2002,
Judge Young granted Defendants’ motion to dismiss the lawsuit and Brown’s “complaint
of joinders.”  The grounds for dismissal of the action were (1) the action
was time-barred, (2) Defendants were immune from suit, and (3) Brown could not
attack the validity of his conviction through a tort and civil rights action. 
In the same order, Judge Young denied Defendants’ motion for sanctions; however,
he included a statement admonishing Brown that “future filings in either this
or any other frivolous matter will not be so kindly tolerated.”

On July 25, 2002, Brown filed a motion
under Rule 59(e) of the South Carolina Rules of Civil Procedure to alter the
judgment, alleging that Defendants had “waived all claims” under Rule 41(c)
of the South Carolina Rules of Civil Procedure.  Judge Young denied Brown’s
motion by order dated August 12, 2002, and filed August 13, 2002.  Brown
received notice of the denial on August 21, 2002.

On  August 20, 2002, Brown filed a “motion
from relief from order” under Rule 60(b) of the South Carolina Rules of Civil
Procedure arguing as grounds:  “Special circuit court judge, lacked subject
matter jurisdiction over the parties, when the plaintiff made timely objection
upon the record and request jury trial on the matter, and the judgement should
be made void.”  He further alleged this amounted to an improper deprivation
of his constitutional right to a jury trial under the seventh amendment of the
federal constitution, as well as a violation of his due process and equal protection
rights.

By order dated and filed October 21, 2002,
Judge Young denied the motion, noting he “heard the motion not as Master-in-Equity
for Charleston County, but rather as Special Circuit Court Judge for Charleston
County under appointment of the Chief Justice.”

Brown’s notice of appeal in this case
is dated November 12, 2002.  In his appellant’s brief, Brown argues (1)
Defendants were equitably estopped from raising the statute of limitations as
a bar to Brown’s action, (2) the removal of this action to the federal district
court was improper, and (3) because he had demanded a jury trial, “the “Master-in-Equity
would lack subject matter jurisdiction over summary dismissal.”

LAW/ANALYSIS

1.  Defendants argue Brown’s appeal is untimely and should
be dismissed.  We agree with this argument insofar as it concerns the first
two issues Brown discusses in his brief.   

Brown does not deny that he received the order denying his
Rule 59(e) motion on August 21, 2002.  Because Brown’s notice of appeal,
dated November 12, 2002, was filed and served more than thirty days after his
receipt of the order denying his initial post-trial motion, it was untimely
and this court lacks jurisdiction to review the matters raised in the appeal
that arise from the orders dismissing his lawsuit and denying his Rule 59(e)
motion. [4]   Contrary to what
Brown suggests in his reply brief, his later motion under Rule 60(b) did not
toll the time for him to file his notice of appeal. [5]

2.  The third matter Brown discussed in his brief, i.e., his right to a jury
trial, however, was the gravamen of his Rule 60(b) motion; therefore, we hold
that inasmuch as his notice of appeal was filed within thirty days after he
had received the order denying that particular motion, we have jurisdiction
to entertain his discussion on that issue.  Nevertheless, assuming without deciding
that Brown’s objection was properly raised in the trial court and adequately
briefed on appeal, we hold the special circuit judge had the authority to dismiss
this lawsuit, even if the effect of the dismissal was to prevent Brown from
obtaining a jury trial.  Contrary to what Brown has argued both to the special
circuit judge and to this court, the right to a jury trial “does not exist with
respect to a complaint or declaration as to which a dismissal or nonsuit is
proper.” [6]

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.

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

[2]   Brown later agreed with the allegations made against him and is
now serving a twelve-year sentence stemming from charges of lewd conduct and
criminal sexual conduct with a minor.

[3]   Armstrong is the Charleston County Clerk of Court and Senn represented
Harper and the Charleston Police Department.

[4] See Rule 203(b)(1) (requiring that a notice of appeal be served
on all respondents within thirty days after receipt of written notice of entry
of the order or judgment, but further providing that”[w]hen a timely . . .
motion to alter or amend the judgment . . . has been made, the time for appeal
for all parties shall be stayed and shall run from receipt of written notice
of entry of the order granting or denying such motion”); Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985) (holding timely service of the notice
of intent to appeal is a jurisdictional requirement, and this Court has no
authority to extend or expand the time in which the notice of intent to appeal
must be served).

[5]   See Coward Hund Constr. Co. v. Ball Corp., 336 S.C.
1, 518 S.E.2d 56 (Ct. App. 1999) (noting that motions under Rule 60 have no
tolling effect on the right to appeal from a challenged judgment).

[6]   47 Am. Jur. 2d Jury § 16 at 724 (1995).