William Tomz v. Capital Investment (5)

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

William F. Tomz and Francis W. Tomz, Individually and
as Class Representatives, Respondents,

v.

Capital Investment Funding, LLC, by and through its
Receiver, Jerry T. Saad, and Arthur M. Field,
Defendants,

Of Which Capital Investment Funding, LLC, by and
through its Receiver, Jerry T. Saad is a Respondent and
Arthur M. Field is the Appellant.

In Re: Kathryn Taillon, Appellant.

Appellate Case No. 2021-000341

Appeal From Greenville County
Jean H. Toal, Acting Circuit Court Judge

Unpublished Opinion No. 2025-UP-022
Heard October 8, 2024 – Filed January 29, 2025

AFFIRMED IN PART AND REVERSED IN PART

Micajah Pickett Caskey, IV, of Caskey Law Firm, P.A.,
of West Columbia, for Appellant Arthur M. Field.
Jeffrey P. Dunlaevy, of Dunlaevy Law Firm, of
Greenville, for Appellant Kathryn Taillon.

George Brandt, III, of Henderson Brandt & Vieth, PA, of
Spartanburg, for Respondents Capital Investment
Funding, LLC, and Jerry T. Saad.

Gene McCain Connell, Jr., of Kelaher Connell &
Connor, PC, of Surfside Beach, and Stanley T. Case, of
Spartanburg, both for Respondents William F. Tomz and
Frances W. Tomz.

PER CURIAM: Arthur Field and Kathryn Taillon appeal an order of the circuit
court granting Jerry T. Saad (Receiver) declaratory relief and finding the
Receiver's action to collect on a civil judgment from Field in Florida was permitted
under the Global Settlement Agreement (GSA). On appeal, Field argues the circuit
court erred by (1) not applying the South Carolina Uniform Declaratory Judgment
Act (SCUDJA), (2) finding it had personal jurisdiction over him and subject matter
jurisdiction over the case, and (3) awarding Capital Investment Funding, LLC
(CIF) liquidated damages. Taillon argues the circuit court erred by (4) finding it
had jurisdiction in this matter when the judge who retained jurisdiction pursuant to
the terms of the GSA later recused himself, (5) improperly applying the SCUDJA
in deciding the Receiver's motion, (6) finding the GSA did not bar the Receiver
from enforcing the civil judgment, and (7) awarding CIF liquidated damages. We
affirm in part and reverse in part.

This case arises out of a complicated history of litigation between these parties
involving multiple lawsuits in state and federal courts, along with criminal charges,
all of which relate to Field's conduct in operating CIF. In 2008, CIF investors, led
by William Tomz and Francis Tomz, initiated a class action, over which Judge
Edward Miller presided. Additionally, Field pled guilty to securities fraud,
conspiracy, and forgery in a 2013 case prosecuted by the South Carolina Attorney
General's (AG's) office. Field was ordered to pay $2,877,711.73 in restitution in
that case.

In December 2017, the parties reached an agreement to settle five pending civil
cases via the GSA. However, the GSA did not, and could not, resolve the criminal
action. The GSA contained broad language stating the parties agreed to settle all
lawsuits and release any claims, known and unknown, except for "those related
solely to enforcement of the obligations" arising from the GSA. Per the GSA's
terms, Judge Miller retained "sole and exclusive jurisdiction regarding any dispute
related to the enforcement, performance or non-performance of any future
obligation contained" in the GSA. 1 Additionally, the GSA included a liquidated
damages provision stating that if any party "file[d] any suit or claim wherein
he/she/they/it attempt[ed] to revoke or disqualify any term" of the GSA, the
"prevailing party" would "be entitled [to] a minimum of $250,000.00 as liquidated
damages for defending, responding or enforcing the terms" of the agreement.

However, Field wished to move to Florida, and the GSA was contingent upon the
court modifying the terms of his probation. 2 At the hearing on Field's motion to
modify his probation, the parties negotiated an addendum (Addendum), which
deleted language from the GSA stating that Field would not owe any further
restitution and that his restitution obligations would be satisfied in full. 3 Instead,
the parties agreed that any payments made or properties transferred to CIF
pursuant to the GSA would be credited towards Field's restitution obligation and
any balance remaining at the end of his term of probation could be converted "to a
civil judgment pursuant to the applicable laws of the State of South Carolina."
Thereafter, Judge Miller approved the GSA and Addendum. Several months later,
at a probation revocation hearing, Judge Maddox issued an order for a civil
judgment in favor of Receiver in the amount of $1,767,634.71—the remaining
balance of restitution after applying the credits outlined in the Addendum.

Sometime after the approval of the GSA, Field and Taillon moved to Florida.4 The
Receiver domesticated the civil judgment in Florida, and the county clerk issued a
Writ of Execution. One week later, Field filed a notice of Homestead Exemption.
Then, in May 2019, the Receiver commenced a declaratory judgment action in
Florida state court seeking to determine whether Field's and Taillon's St. Augustine
property was protected by Florida's homestead statute. Field and Taillon moved to
dismiss, arguing the GSA barred the Receiver from attempting to enforce the civil

1
The order approving the GSA contains slightly different language and says that
the "[c]ourt retains sole and exclusive jurisdiction relating to all matters of
enforcement or non-performance of the GSA."
2
Judge Cordell Maddox presided in the criminal case.
3
The AG's office objected to releasing Field from paying any further restitution, so
the parties agreed to the Addendum as a compromise.
4
Field and Taillon are married.
judgment. 5 The Receiver then filed a "Motion for Declaratory Relief Related to
CIF's Judgment Collection Action in Florida," under the case number for the 2008
South Carolina class action and requested the court "declare that [the Receiver's]
judgment collection action against Arthur Field . . . is just and proper under the
terms of the [GSA]." The Florida court granted a stay, finding Judge Miller had
retained jurisdiction and stating it would permit South Carolina "to assess whether
any party's positions [in the Florida case] violate [the GSA]'s terms."

Field and Taillon moved to dismiss the South Carolina action, arguing the GSA
barred the collection attempt in Florida and that the SCUDJA did not allow relief
by motion. Before the circuit court could rule on the motions, Field filed a motion
to recuse Judge Miller; Judge Miller recused himself, and then-Chief Justice Beatty
appointed Judge Toal "with exclusive jurisdiction to hear and dispose of" the case.
Judge Toal granted the Receiver's motion. After both Field and Taillon filed
motions to reconsider, Judge Toal issued an amended order finding, among other
things, that (1) the GSA did not release Field's liability or obligations pursuant to
his criminal restitution; (2) the Receiver's motion did not require a separate action
under the SCUDJA; (3) the circuit court had personal jurisdiction over Field; and
(4) the circuit court had subject matter jurisdiction. Additionally, Judge Toal
imposed liquidated damages against Field, finding his "multiple filings within the
state of Florida and his repeated efforts to deny" South Carolina's jurisdiction,
along with his "attempt to argue he [wa]s no longer obligated to pay restitution"
amounted to "an attempt to disqualify the terms of the GSA." This appeal
followed.

I. Jurisdiction of the Circuit Court

Subject matter jurisdiction "refers to a court's constitutional or statutory power to
adjudicate a case." Johnson v. S.C. Dep't of Prob., Parole, & Pardon Servs., 372
S.C. 279, 284, 641 S.E.2d 895, 897 (2007). "A court lacking subject matter
jurisdiction . . . has no authority to act . . . ." Dove v. Gold Kist, 314 S.C. 235, 238,
442 S.E.2d 598, 600 (1994). "Whether a court has subject matter jurisdiction is a
question of law we review de novo." Deborah Dereede Living Tr. dated Dec. 18,
2013 v. Karp, 427 S.C. 336, 346, 831 S.E.2d 435, 441 (Ct. App. 2019).

Personal jurisdiction "refers to the authority of a court over a particular person."
Boan v. Jacobs, 296 S.C. 419, 421, 373 S.E.2d 697, 698 (Ct. App. 1988). "The

5
The matter was removed to the federal district court at some point; however, the
record on appeal does not contain any documents regarding the removal.
question of personal jurisdiction over a nonresident defendant is one which must
be resolved upon the facts of each particular case." Moosally v. W.W. Norton &
Co., 358 S.C. 320, 327, 594 S.E.2d 878, 882 (Ct. App. 2004). "[I]t is settled . . .
that parties to a contract may agree in advance to submit to the jurisdiction of a
given court . . . ." Fin. Fed. Credit Inc. v. Brown, 384 S.C. 555, 566, 683 S.E.2d
486, 492 (2009) (quoting Nat'l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311,
315-16 (1964)).

Although we agree that the GSA contemplated dismissal of the 2008 action, it also
imposed a requirement on counsel of record to "file appropriate notices in each of
the pending actions" upon the completion of certain events; no such notices appear
in the record before us. Additionally, neither the December 1, 2017 order, nor the
December 21, 2017 order contain language dismissing Field or Taillon or closing
the case. More importantly, Field and Taillon agreed to reserve exclusive
jurisdiction in Judge Miller and the circuit court to resolve any questions "related
to enforcement" of the GSA and Addendum, which is clearly the focus of the
Receiver's motion.

Therefore, we hold that the circuit court had both personal and subject matter
jurisdiction. See Dove, 314 S.C. at 237-38, 442 S.E. 2d at 600 (explaining subject
matter jurisdiction is "the power to hear and determine cases of the general class to
which the proceedings in question belong" (quoting Bank of Babylon v. Quirk, 472
A.2d 21, 22 (1984))); Boan, 296 S.C. at 421, 373 S.E.2d at 698 (stating personal
jurisdiction "refers to the authority of a court over a particular person).
Additionally, because the relief the Receiver sought amounted to the interpretation
and enforcement of the GSA and Addendum, we hold the Receiver did not need to
file a new summons and complaint. See Kumar v. Third Generation, Inc., 324 S.C.
284, 290, 485 S.E.2d 626, 629 (Ct. App. 1995) (holding the circuit court had
jurisdiction to hear a motion to vacate a settlement agreement even after a final
order had been entered because a "[circuit] court has inherent jurisdiction to
enforce settlement agreements entered before it"); Rock Smith Chevrolet, Inc. v.
Smith, 309 S.C. 91, 93, 419 S.E.2d 841, 842 (Ct. App. 1992) ("There can be no
doubt but that the [circuit] court retains inherent jurisdiction and power to enforce
agreements entered into in settlement of litigation before that court."); Campione v.
Best, 435 S.C. 451, 458, 868 S.E.2d 378, 382 (Ct. App. 2021) ("Courts are
empowered to interpret their own orders . . . .").

II. Interpretation of the GSA and Addendum
"In South Carolina jurisprudence, settlement agreements are viewed as contracts."
Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802 (Ct. App.
2009). "An action to construe a contract is an action at law." Byrd v. Livingston,
398 S.C. 237, 241, 727 S.E.2d 620, 622 (Ct. App. 2012). "In an action at law, on
appeal of a case tried without a jury, the judge's findings will not be disturbed
unless they are without evidentiary support." Id. "However, this court is free to
decide questions of law with no particular deference to the [circuit] court." Id.

"General contract principles are applied in the construction of a settlement
agreement . . . ." Pee Dee Stores, Inc., 381 S.C. at 241, 672 S.E.2d at 803. "When
a contract is unambiguous, clear, and explicit, it must be construed according to the
terms the parties have used, to be taken and understood in their plain, ordinary, and
popular sense." Sphere Drake Ins. Co. v. Litchfield, 313 S.C. 471, 473, 438 S.E.2d
275, 277 (Ct. App. 1993). "Determining what the parties intended becomes a
question of fact for [a] jury only when the contract is ambiguous." Watson v.
Underwood, 407 S.C. 443, 455, 756 S.E.2d 155, 161 (Ct. App. 2014). "To
discover the intention of a contract, the court must first look to its language—if the
language is perfectly plain and capable of legal construction, it alone determines
the document's force and effect." Ecclesiastes Prod. Ministries v. Outparcel
Assocs., LLC, 374 S.C. 483, 498, 649 S.E.2d 494, 501 (Ct. App. 2007). "The
parties' intention must be gathered from the contents of the entire agreement and
not from any particular clause thereof." Id. at 498, 649 S.E.2d at 502.

We hold the circuit court correctly found the GSA and Addendum did not bar the
Receiver's attempt to enforce the civil judgment in Florida. First, we note that
neither the GSA nor the Addendum contain any language specifically stating that
Field was to be released from his restitution obligation or that the Receiver would
not collect on the civil judgment. See Rule 43(k), SCRCP ("No agreement
between counsel affecting the proceedings in an action shall be binding unless
reduced to the form of a consent order or written stipulation signed by counsel and
entered in the record, or unless made in open court and noted upon the record, or
reduced to writing and signed by the parties and their counsel."). Additionally, we
agree with the circuit court that "the collection of a judgment is not a 'claim' as
contemplated by the GSA." Although the GSA contains three releases, the releases
refer to claims or actions that were or could have been raised in the five listed
actions up to and including that time. Moreover, one of the releases specifically
exempts matters "related . . . to enforcement of the obligations of the GSA." As
discussed above, we find this litigation is related to enforcement of Field's and
Taillon's obligations under the GSA and Addendum as an attempt to collect the
civil judgment, which originated from the criminal action.
There is no provision in the GSA or Addendum stating that Field's restitution
would be satisfied in full by fulfilling his obligations under the GSA. In fact, the
Addendum was created specifically to remove language to that effect from the
GSA. Pursuant to the Addendum, the value of any payments and properties
transferred to CIF via the GSA would be applied "as credit towards and thereby
reducing the $2,877,711.13 restitution that Arthur Field has been ordered to pay."
We find the above provision, combined with the deletion of the language from the
GSA stating that Field had satisfied his restitution in full, clearly evinces the
parties' intent not to eliminate Field's restitution obligation.
Accordingly, we hold the GSA and Addendum are unambiguous and their force
and effect can be determined from their language alone. See S.C. Dep't of Nat.
Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001)
("It is a question of law for the court whether the language of a contract is
ambiguous."); Jordan v. Sec. Grp., Inc., 311 S.C. 227, 230, 428 S.E.2d 705, 707
(1993) ("A contract is ambiguous only when it may fairly and reasonably be
understood in more ways than one."); Barnacle Broad., Inc. v. Baker Broad., Inc.,
343 S.C. 140, 146-47, 538 S.E.2d 672, 675 (Ct. App. 2000) ("In determining the
intention of the parties, a court first looks to the language of the contract and if the
language is clear and unambiguous, the language alone determines the contract's
force and effect."). Therefore, we affirm the circuit court's finding that the GSA
and Addendum do not bar the Receiver's action in Florida. 6

III. Liquidated Damages

"When a contract is unambiguous, clear, and explicit, it must be construed
according to the terms the parties have used, to be taken and understood in their
plain, ordinary, and popular sense." Sphere Drake Ins. Co., 313 S.C. at 473, 438
S.E.2d at 277. "To discover the intention of a contract, the court must first look to
its language—if the language is perfectly plain and capable of legal construction, it
alone determines the document's force and effect." Ecclesiastes Prod. Ministries,
374 S.C. at 498, 649 S.E.2d at 501. "It is a question of law for the court whether
the language of a contract is ambiguous." McClellanville, 345 S.C. at 623, 550
S.E.2d at 302-03.

6
This holding is limited only to the interpretation of the terms of the GSA and
Addendum and should not be construed as a comment on the merits of the Florida
action.
We hold the language of the liquidated damages provision in the GSA is clear and
unambiguous. By its plain language, the liquidated damages are only available to a
"prevailing party" in an action in which another party files a suit or claim and
attempts to "revoke or disqualify any term" of the GSA. This court was asked only
to interpret the terms of the GSA and Addendum, and the merits of the judgment
collection in Florida have not been determined. Accordingly, there is no prevailing
party at this stage of the proceedings. Thus, we reverse the circuit court's award of
liquidated damages.7 See Byrd, 398 S.C. at 241, 727 S.E.2d at 622 (explaining that
"this court is free to decide questions of law with no particular deference to the
[circuit] court").

AFFIRMED IN PART AND REVERSED IN PART.

WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.

7
Because our holding on the construction of the liquidated damages provision is
dispositive, we do not reach the issue of whether the provision constitutes an
unenforceable penalty. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining an appellate court need not
address remaining issues when its resolution of a prior issue is dispositive).