Toney v. LaSalle Bank

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

Laura Toney, Appellant,

v.

LaSalle Bank National Association as Trustee for the
Registered Holder of Structured Asset Securities
Corporation, Structured Asset Investment Loan Trust,
Mortgage Pass-Through Certificates, Series 2004-11,
A/K/A Altisource Homes, Wayne Capell, Lee County
Treasurer and Lee County Planning and Zoning,
Respondents.

Appellate Case No. 2016-001989

Appeal From Lee County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2019-UP-197
Submitted May 1, 2019 – Filed June 5, 2019

AFFIRMED

Laura Toney, of Bishopville, pro se.

Paul M. Fata, of Stuckey Fata & Segars, of Bishopville,
for Respondents Lee County Planning and Zoning and
Wayne Capell.
Sean A. O'Connor, of Finkel Law Firm LLC, of North
Charleston, for Respondent LaSalle Bank National
Association.

PER CURIAM: Laura Toney appeals the circuit court's July 11, 2016 order
granting LaSalle Bank National Association's (LaSalle's) 1 motion to dismiss and
granting summary judgment to Wayne Capell, Lee County Treasurer, and Lee
County Planning and Zoning (collectively, the County). She also appeals a
February 4, 2016 order of the circuit court denying her motion to disqualify
opposing counsel. On appeal, Toney argues the circuit court erred by (1) holding
an ex parte hearing on March 30, 2016, (2) finding LaSalle timely filed a motion to
dismiss in federal court and thus was not required to re-file its motion following
remand to state court, and (3) failing to disqualify counsel for the County. 2 We
affirm.

As to whether the circuit court erred in holding the March 30, 2016 hearing:
Flexon v. PHC-Jasper, Inc., 413 S.C. 561, 569-70, 776 S.E.2d 397, 402 (Ct. App.
2015) ("This court reviews questions of law de novo." (Proctor v. Steedley, 398
S.C. 561, 573, 730 S.E.2d 357, 363 (Ct. App. 2012))); Bakala v. Bakala, 352 S.C.
612, 623, 576 S.E.2d 156, 162 (2003) ("Generally, one who has notice and fails to
appear cannot complain of an ex parte proceeding."); id. ("[A]lthough ex parte
contacts are strongly disfavored, prejudice must be shown to obtain a reversal on
this ground.").

As to whether the circuit court erred in its findings relating to the motion to dismiss
filed in federal court: Flexon, 413 S.C. at 569-70, 776 S.E.2d at 402 ("This court

1
LaSalle is also known as Altisource Homes.
2
Toney's table of contents lists the following four arguments, which are not
addressed in the body of her brief: (1) "Because [Toney] did not receive a [l]etter
of [a]cceleration, the foreclosure did not follow the foreclosure law of South
Carolina," (2) "Because the attorney committed fraud on the court, [Toney] should
have been granted a new trial," (3) "Because the attorney for [LaSalle] did not
enter an [o]rder of [a]ppearance, the case should have been dismissed," and (4)
"Because [Toney] did not get an opportunity to present her case, her due process
was violated." We find Toney abandoned these issues. See Wright v. Craft, 372
S.C. 1, 20, 640 S.E.2d 486, 497 (Ct. App. 2006) (finding an issue abandoned when
it was listed in the appellant's statement of issues on appeal but not addressed in the
brief).
reviews questions of law de novo." (quoting Proctor, 398 S.C. at 573, 730 S.E.2d
at 363)); Rule 12(a), SCRCP ("A defendant shall serve his answer within 30 days
after the service of the complaint upon him . . . ."); Rule 12(b), SCRCP (providing
a Rule 12(b) motion shall be made before further pleadings are made); Rule
81(c)(2)(C), FRCP (providing that after removal "[a] defendant who did not
answer before removal must answer or present other defenses or objections under
these rules within the longest of these periods . . . 7 days after the notice of
removal is filed"); see e.g. McKethan v. Wells Fargo Bank, N.A., 779 S.E.2d 671,
675, (Ga. 2015) ("[A] timely answer filed in district court following timely
removal of the action is sufficient to prevent a default in a state court if the case is
subsequently remanded from district court."); Banks v. Allstate Indem. Co., 757
N.E.2d 776, 778 (Ohio Ct. App. 2001) ("[A] party need not refile documents in the
court of common pleas after a case is remanded from federal court so long as that
party makes the trial court aware of the filing's existence and, if challenged, shows
proof of service on the other party at the time the document was filed in federal
court."); 77 C.J.S. Removal of Cases § 190 (2019) ("As a general rule, the state
court determines the effect of pleadings filed and proceedings taken in the federal
court. However, the state court ordinarily receives the case in the posture it is in
when remanded and, thus, a pleading filed in federal court need not be refiled in
state court.").

As to whether the circuit court erred in denying the motion to disqualify counsel:
Brooks v. S.C. Comm'n on Indigent Def., 419 S.C. 319, 324, 797 S.E.2d 402, 404
(Ct. App. 2017) ("A circuit court's ruling on a motion to disqualify a party's
attorney is reviewed for an abuse of discretion."); id. ("An abuse of discretion
occurs when the [circuit] court's ruling is based on an error of law or is not
supported by the evidence." (quoting Lawing v. Univar, USA, Inc., 415 S.C. 209,
225, 781 S.E.2d 548, 556-57 (2015))).

AFFIRMED. 3

WILLIAMS, GEATHERS, and HILL, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.