Tony Billips v. Carolyn Billips

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tony A. Billips, individually and as a derivative
shareholder of Alex's Restaurants, Inc., Respondent,

v.

Carolyn A. Billips, individually and as Trustee for the
benefit of Anthony Billips, William Casey Ivey, and
Alex Billips, and as controlling person of Alex's
Restaurants, Inc., and Alex's Restaurants, Inc.,
Appellants.

Appellate Case No. 2022-000078

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2025-UP-104
Submitted March 1, 2025 – Filed March 26, 2025

AFFIRMED

Jaan Gunnar Rannik, of Epting & Rannik, LLC, of
Charleston, for Appellants.

O. Grady Query and Michael W. Sautter, of Query
Sautter & Associates, LLC, and Alexander Woods
Tesoriero, of The Law Office of Alexander Woods LLC,
all of Charleston, for Respondent.
PER CURIAM: Alex's Restaurants, Inc. (Alex's) and Carolyn Billips,
individually, as trustee of the benefit of Anthony Billips, William Casey Ivey, and
Alex Billips, and as controlling person of Alex's (collectively, Appellants) appeal
the master-in-equity's order granting Tony Billips's motion to reconsider. On
appeal, Appellants argue (1) the November 22, 2021 order ended Tony's claims
because he failed to file an appeal or cross appeal, (2) the master erred in granting
the motion to reconsider because the accounting action and the master's order
following that action constituted an election of remedies by Tony, and (3) Tony's
actions warrant a sanction against him. We affirm pursuant to Rule 220(b),
SCACR.

1. We hold the master's November 22, 2021 order did not end Tony's claims
because Tony was permitted to seek relief from judgment, which he did. See Rule
59(a), SCRCP ("On a motion for a new trial in an action tried without a jury, the
court may open the judgment if one has been entered, take additional testimony,
amend findings of fact and conclusions of law or make new findings and
conclusions, and direct the entry of a new judgment."); Rule 59(e), SCRCP ("A
motion to alter or amend the judgment shall be served not later than 10 days after
receipt of written notice of the entry of the order."). The original order was filed
November 22, 2021, Tony's motion to reconsider pursuant to Rule 59(e) of the
South Carolina Rules of Civil Procedure was served December 2, 2021, and the
motion resulted in an amended order from the master that was favorable to Tony.

2. We hold that there was no election of remedies because there was no final
adjudication as the master's order was not a final order and it remanded the case
back to the circuit court so that all remaining causes of action could be heard. See
Cowart v. Poore, 337 S.C. 359, 364, 523 S.E.2d 182, 185 (Ct. App. 1999) ("The
invocation of one remedy constitutes an election of remedies that will bar another
remedy consistent therewith where the suit upon the remedy first invoked reached
the stage of final adjudication.").

Further, we hold the master did not abuse his discretion in granting Tony's motion
to reconsider because he erred in ordering the sale of Tony's interest in Alex's in
the original order as the consent order limited the master to providing a valuation
of Tony's interest in Alex's and did not address the other causes of action Tony
raised in his complaint. See Stearns Bank Nat. Ass'n v. Glenwood Falls, LP, 373
S.C. 331, 336, 644 S.E.2d 793, 795 (Ct. App. 2007) ("The decision to grant or
deny a motion for relief from judgment lies within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion."); BB & T
v. Taylor, 369 S.C. 548, 551, 633 S.E.2d 501, 503 (2006) ("An abuse of discretion
arises where the judge issuing the order was controlled by an error of law or where
the order is based on factual conclusions that are without evidentiary support.").
The consent order of reference referred the action to the master "with regard to the
accounting requested by [Tony]," with no mention that a payout was to be ordered.
See Bunkum v. Manor Props., 321 S.C. 95, 98, 467 S.E.2d 758, 760 (Ct. App.
1996) ("Pursuant to Rule 53, SCRCP, a master has no power or authority except
that which is given to him by the order of reference."); id. ("When a case is
referred to a master under the rule, the master is given the power to conduct
hearings in the same manner as the circuit court unless the order of reference
specifies or limits the master's powers."). Because the master erred in the original
order, as he only had authority to complete an accounting for Tony's interest in
Alex's and not order a payout based on that, we find the master did not err in
granting the motion to reconsider to amend the order to not require Tony be paid
out and return his shares and instead remanded the action to the circuit court for
consideration of Tony's other claims.

3. We hold Appellants' request for sanctions related to the alleged discovery
violations was conceded because the record does not indicate Appellants made any
attempt to correct the master's finding that the issue regarding compelling
discovery was resolved. See TNS Mills, Inc. v. S.C. Dep't of Revenue, 331 S.C.
611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower court may
not be argued on appeal."); State v. Mitchell, 330 S.C. 189, 195, 498 S.E.2d 642,
645 (1998) ("Because counsel acquiesced in the judge's [ruling], and made no
other objections . . . , [a]ppellant cannot now complain about this issue."); see also
Halbersberg v. Berry, 302 S.C. 97, 104, 394 S.E.2d 7, 12 (Ct. App. 1990) (holding
an issue not explicitly ruled on by lower court was waived for appellate review
where omission was not brought to lower court's attention by way of a proper
motion). We recognize Appellants filed multiple motions, including the October 4,
2018 motion to dismiss, related to alleged failures to comply with discovery by
Tony. However, on August 10, 2021, the master issued a Form 4 order providing
Appellants' motion to compel updated discovery was resolved, and Appellants
failed to object or file a motion to reconsider this finding. Because Appellants did
not take any actions following the Form 4 order, we find the issue conceded on
appeal.

Further, we hold Appellants' request for sanctions related to violations of the
confidentiality order cannot be reviewed due to an insufficient record. See State v.
Serrette, 375 S.C. 650, 652, 654 S.E.2d 554, 555 (Ct. App. 2007) ("[T]he burden is
on the appellant to provide the appellate court with an adequate record for
review."). Appellants included the August 17, 2017 confidentiality order that
generally provided the parties agreed certain discovery material should be treated
as confidential and the December 13, 2018 consent order to seal that established
portions of a deposition and a September 10, 2018 hearing transcript would be
sealed and that the parties would not talk about what was sealed. However,
Appellants failed to provide those documents or any other relevant materials
associated with Tony's alleged violations of those orders for this court to review.
Because Appellants failed to include that information in the record on appeal, we
find the record is insufficient for appellate review.

AFFIRMED. 1

THOMAS, HEWITT, and CURTIS, JJ., concur.

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