Pye v. Holmes

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,

v.

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Unpublished Opinion No. 2008-UP-251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   

AFFIRMED

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.[1]

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.

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.

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