Kenneth Curtis v. Cynthia Glenn

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

Kenneth Curtis, Respondent,

v.

Cynthia Glenn, Appellant.

Appellate Case No. 2020-001699

Appeal From Greenville County
Charles B. Simmons, Jr., Master-in-Equity

Unpublished Opinion No. 2024-UP-126
Submitted April 10, 2024 – Filed April 17, 2024

AFFIRMED IN PART AND VACATED IN PART

Cynthia Glenn, of Gray Court, pro se.

Kenneth Curtis, of Marietta, pro se.

PER CURIAM: Cynthia Glenn appeals the October 29, 2020 and November 17,
2020 orders from the master-in-equity. On appeal, Glenn argues (1) the master did
not have the authority to supersede a prior order from the magistrate's court, (2) the
master erred by allowing Curtis to re-litigate issues decided by the magistrate's
court, (3) the master erred by accepting "matters of [Curtis's] complaint without
proper authority and without proper counsel," (4) the master failed to rule on the
one issue properly before it, (5) the master confused and blended properties that
were not a part of the original conflict, (6) the master erred by failing to recuse
himself, (7) it was unethical for the master to rule Glenn would be subject to fines
and jail time, (8) Greenville County and the Attorney General's office failed to
intervene to represent the public's right, and (9) the "magistrate['s] court err[ed] in
filing a motion of reference after Curtis brought new issues at a Motion for
Clarification hearing when he had not brought the issues previously or appealed
any ruling." We affirm in part and vacate in part pursuant to Rule 220(b), SCACR.

In December 2018, following a contract between Kenneth Curtis and Glenn,
Glenn's husband was buried on property often referred to as Saluda Rest, which is
owned by Curtis. Subsequently, a dispute arose between the parties regarding the
time and manner of Glenn's visitation to her husband's grave. Following a few
incidents between the parties on the matter, Curtis filed a complaint in magistrate's
court and Glenn filed for a restraining order. The magistrate's court filed its final
order on January 15, 2020; the order, among other things, consolidated the two
cases, found Curtis owed a duty to the families of those buried in his cemetery to
allow them to visit their family member's graves, and provided for visitation for
Glenn. Specifically, as to Glenn's visitation, it ordered Curtis to set weekly
visitation hours that Curtis was permitted to determine, "provided that the duration
of the visitation should be at least six (6) consecutive hours," begin no later than
11:00 A.M. and end no earlier than 4:00 P.M., and it also provided Glenn "shall be
allowed to access her husband's grave by vehicle," and "be allowed to take tools
with her to care for and maintain the grave site." It also ordered Curtis to file an
action with the circuit court to determine the status of Saluda Rest as a cemetery.
Finally, the order provided that if Curtis failed to file that action with the circuit
court within thirty days of the date of the order, the visitation schedule provided
"shall apply to all members of the public in addition to [Glenn]." This order was
not appealed.

Curtis then filed a summons and complaint in circuit court against Glenn, seeking a
declaratory judgment regarding whether he owns private property and "operates a
private ministry, church, and/or religious organization and that [Glenn] must
request and receive permission to enter [Curtis's] property," and seeking a ruling
that Glenn is denied any access to the property pursuant to section 27-43-10
to -310 of the South Carolina Code (2007 & Supp. 2023). He also alleged claims
of breach of contract and abuse of process. The matter was referred to the master.
Glenn answered, asserted counterclaims, and moved to dismiss the complaint in
part, arguing a majority of the complaint, causes of action, and requests for relief
were previously tried and a final judgment was issued and the only matter before
the master was whether Saluda Rest was a cemetery and open to public access.
Following a hearing on the motion to dismiss, the master issued a Form 4 order,
"rul[ing] that any issues that occurred between the parties prior to January 15, 2020
(the date of [the magistrate's court's o]rder) may not be re-litigated in this court."
Following a trial, the master filed the October 29, 2020 order. The October 2020
order found: (1) Glenn did not prove any elements of her counterclaims, (2) Curtis
did not prove Glenn breached the contract nor that she brought forth legal
proceedings with an ulterior purpose, (3) the determination of whether Saluda Rest
is a church is beyond the master's jurisdiction, (4) Saluda Rest is private property,
and (5) it had the jurisdiction to grant relief between the parties. The master also
ordered (1) Glenn was entitled to visit her husband's grave with up to three people,
(2) Glenn could visit any day between the hours of 8:00 A.M. and 8:00 P.M. so
long as she provided twenty-four hours' notice, (3) provided for how Curtis should
handle a request to visit if there was a legitimate and objective reason to not allow
access, (4) provided for payment if damages should occur during Glenn's visit, (5)
prohibited Curtis from placing a burial site within a certain distance of the path
leading to Glenn's husband's grave site and required the path have sufficient room
for an average sized vehicle, (6) ordered a mutual restraining order, prohibiting
harassment that was punishable by fine or jail time if violated, and (7) ordered that
this order would supersede and overrule any previous orders or ruling related to
these matters between Curtis and Glenn that are addressed herein—specifically the
magistrate's court cases. Both during the trial and in her post-trial motion, Glenn
argued to the court that the issues being presented and ruled on—save the ruling on
whether the property at issue was a cemetery and what hours of visitation Curtis
was required to maintain—were not properly before the court because they had
been decided by the magistrate's court.

We hold the doctrine of res judicata bars the re-litigation of the issues between
Curtis and Glenn that were determined or could have been determined by the
magistrate's court's January 15, 2020 order. See Zinn v. CFI Sales & Mktg., Ltd,
415 S.C. 93, 105, 780 S.E.2d 611, 617 (Ct. App. 2015) ("Res judicata bars
subsequent actions by the same parties when the claims arise out of the same
transaction or occurrence that was the subject of a prior action between those
parties." (quoting Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512
S.E.2d 106, 109 (1999))). Here, the parties are the same and the subject matter—
Glenn's visitation rights—are the same. Moreover, the magistrate's court's order
finally determined the visitation parameters for the parties in its order, and the
portions of the trial transcript included in the record on appeal fail to establish the
existence of any new incident following the January 15, 2020 order that would
provide grounds for a change.1 See id. at 105, 780 S.E.2d at 618 ("Res judicata is
shown if (1) the identities of the parties is the same as a prior litigation; (2) the
subject matter is the same as in the prior litigation; and (3) there was a prior
adjudication of the issue by a court of competent jurisdiction." (quoting Johnson v.
Greenwood Mills, Inc., 317 S.C. 248, 250-51, 452 S.E.2d 832, 833 (1994))).
Further, although Curtis asserted causes of action for breach of contract and abuse
of process in the complaint before the master, Curtis did not establish that these
claims could not have been brought in the suit before the magistrate's court. See id.
at 105, 780 S.E.2d at 617 ("Under the doctrine of res judicata, '[a] litigant is barred
from raising any issues which were adjudicated in the former suit and any issues
which might have been raised in the former suit.'" (quoting Plum Creek Dev. Co.,
334 S.C. at 34, 512 S.E.2d at 109)); id. at 106 n.7, 780 S.E.2d at 618 n.7 ("South
Carolina courts have used at least four tests to determine when a claim should have
been raised in the first suit: (1) when there is identity of the subject matter in both
cases; (2) when the first and second cases involve the same primary right held by
the plaintiff and one primary wrong committed by the defendant; (3) when there is
the same evidence in both cases; and recently, (4) when the claims arise out of the
same transaction or occurrence that is the subject of the prior action." (quoting
James F. Flanagan, South Carolina Civil Procedure 649-50 (2d ed. 1996))). Based
on the foregoing, the master erred by ruling on issues already determined—or that
could have been determined—by the magistrate's court; thus, we vacate the
portions of the master's order that involve Glenn. Furthermore, in light of this
court's above determination, we need not reach Glenn's remaining issues. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (ruling an appellate court need not address remaining issues when
its resolution of a prior issue is dispositive).

1
We acknowledge Respondent's brief asserts that Glenn failed to "order or pay for
a [f]ull [t]ranscript of the proceedings . . . as required by the [Appellate Court
Rules]," which prevented him from "prepar[ing] a proper response"; however,
Glenn moved before this court to proceed without the full transcript and this court,
noting that the motion was unopposed, granted Glenn's request. Although Curtis
now "objects" to this motion to proceed, we construe his objection as a petition for
rehearing, which we take no action on. See Rule 240(i), SCACR ("The court will
not entertain petitions for rehearing on a motion or petition unless the action of the
court on the motion or petition has the effect of dismissing or finally deciding a
party's appeal."). Additionally, this court denies Curtis's request to impose
sanctions on Glenn.
AFFIRMED IN PART AND VACATED IN PART. 2

THOMAS, MCDONALD, and VERDIN, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.