Burgess v. Stern, 23832

• Decision Date: 04 June 1992
• Docket Number: No. 23832,23832
• Parties: Paul W. BURGESS, Appellant, v. Daniel STERN and John J. Dempster, d/b/a Daniel Stern & Associates, Respondents. and SEA PINES REALTY CO., Respondent, v. Paul W. BURGESS, Appellant, v. Frank H. CLABAUGH, Respondent. . Heard
• Court: South Carolina Supreme Court

Page 880

428 S.E.2d 880

311 S.C. 326

Paul W. BURGESS, Appellant, v. Daniel STERN and John J. Dempster, d/b/a Daniel Stern &

Associates, Respondents.

and

SEA PINES REALTY CO., Respondent, v. Paul W. BURGESS, Appellant, v. Frank H. CLABAUGH, Respondent.

No. 23832.

Supreme Court of South Carolina.

Heard June 4, 1992.

Decided April 5, 1993.

Rehearing Denied May 5, 1993.

A. Camden Lewis and Mark W. Hardee, Lewis, Babcock, & Hawkins, Columbia, for appellant.

Morris D. Rosen, Rosen, Rosen & Hagood, Charleston, for respondents Daniel Stern and John J. Dempster.

Russell P. Patterson, Jones, Scheider & Patterson, Hilton Head, for respondent Sea Pines Realty Co.

Susan Taylor Wall, Holmes and Thomson, Charleston, for respondent Frank H. Clabaugh.

FINNEY, Justice:

These cases arise from the same facts and involve Appellant Paul W. Burgess' appeal of the trial judge's order denying appellant's motions for the trial judge to 1) recuse himself, 2) vacate his prior orders, and 3) re-open the case, or 4) grant a new trial as a result of ex parte communications between the trial judge and counsel for Respondents Daniel Stern and John J. Dempster, d/b/a Daniel Stern & Associates. We affirm.

The initial action commenced on April 6, 1989 when, for the stated purpose of enforcing an alleged contract of purchase and sale, the appellant filed and had published a notice of lis pendens against real estate owned by the respondents. By complaint dated April 26, 1989, the appellant brought suit against the respondents seeking specific performance on the alleged contract. Respondents answered by qualified general denial and counterclaimed asserting the Statute of Frauds, Slander of Title, and Tortious Interference with a Contract; sought dismissal of appellant's action; discharge of the lis pendens, requested actual and punitive damages, and demanded a jury trial.

The matter was tried March 1-2, 1990, by Special Circuit Court Judge Thomas Kemmerlin, Jr. On August 13, 1990, Judge Kemmerlin issued an order holding that no contract existed between the appellant and respondents. The judge awarded special damages, attorneys fees and costs to the respondents based upon a finding against the appellant of slander of title and tortious interference with a contract for the sale of the subject real estate between the respondents and a third party, Richard A. English; except that attorney's fees and costs were not awarded for tortious interference with a contract. Based upon English's testimony that he still intended to consummate the sale, the court awarded only interest on the purchase price on the contract between the respondents and English. The order provided that, should English not close the sale within sixty days of the order, the case could be re-opened to determine damages arising therefrom. Judge Kemmerlin stayed appeal rights of the parties pending entry of a final order and judgment after a hearing on August 20, 1990, to determine the amount of attorneys' fees, costs, and punitive damages to be assessed against the appellant.

The hearing set for August 20, 1990, was subsequently rescheduled for August 27, 1990. That hearing was canceled as the result of a stipulation dated August 24, 1990, and filed August 27, 1990, in which the parties, without appellant waiving his right to appeal, stipulated to fees and costs. Judge Kemmerlin's order awarding the respondents attorneys' fees, costs, and $100 in punitive damages was issued August 28, 1990. On November 12, 1990, the judge denied appellant's motion for reconsideration of the August 13, 1990, order.

On November 13, 1990, respondents moved to re-open the damage aspect of the case based upon English's withdrawal of his offer to purchase the subject lot and a refund of his earnest deposit. The motion was granted January 11, 1991.

On December 11, 1990, the court granted the motion of Attorney Frank H. Clabaugh to withdraw from representation of the appellant.

The second action was instituted against the appellant by Sea Pines Realty Co., listing agent for the respondents, by complaint dated December 20, 1990, alleging the wrongful procurement of a breach of the listing agreement between it and the respondents as well as a breach of the contract of sale between English and the respondents. The appellant asserted a qualified denial in his answer dated February 7, 1991.

On February 8, 1991, the appellant moved to re-open the case, vacate the orders, and for a new trial, contending he had been prejudiced and denied due process of law by virtue of extensive improper ex parte contacts between Judge Kemmerlin and Barry L. Johnson of the firm of Novit, Scarminach & Johnson, P.A., counsel for the respondents, relating to preparation of the August 13, 1990, order. The motion cited ex parte contacts beginning in March of 1990 with a conference and telephone call between respondents' counsel and the judge in which counsel learned that the judge was going to rule in favor of the respondents, and at least one ex parte conference in May of 1990 to discuss the proposed order. The appellant alleged that after drafting portions of the proposed order, respondents' counsel conferred by telephone with Respondent Stern in June of 1990 and thereafter, redrafted part of the order prior to forwarding the finalized version to Judge Kemmerlin. The appellant contended respondents' counsel subsequently traveled to Beaufort and conferred ex parte with Judge Kemmerlin about the order, and that an additional ex parte conference occurred in July of 1990.

The appellant also filed motions on February 8, 1991, to disqualify Judge Kemmerlin and Barry L. Johnson, counsel for the respondents, upon the grounds of ex parte communications between Judge Kemmerlin and Johnson, Johnson's usurpation of judicial functions, and the fact that Johnson's representation posed a conflict. Grounds cited for the conflict were that appellant's initial counsel had been replaced by William Clark of the firm of Biel and Clark; Clark had gained substantial confidential information about the case and appeared on behalf of the appellant at a hearing in this matter on January 11, 1991; several days thereafter, Johnson joined the firm of Biel and Clark. Clark then ceased to represent the appellant, but Johnson continued as respondents' counsel.

The third action was brought by appellant's complaint of February 18, 1991, against Frank H. Clabaugh, his prior counsel, alleging liability for indemnification and legal malpractice. The appellant sought damages for Clabaugh's alleged breach of duty and negligence in the representation provided appellant in the transaction with the respondents and the ensuing litigation. On March 15, 1991, Clabaugh moved to dismiss appellant's action.

On May 7, 1991, Sea Pines filed a motion to stay its action until resolution of three motions pending in the related cases.

On May 10, 1991, appellant moved to have Judge Kemmerlin disqualify himself in the Sea Pines suit on the grounds of the ex parte communications in the primary case.

On September 5, 1991, Judge Kemmerlin issued an order in which he addressed the motions to re-open the case, vacate the previous orders and grant a new trial; to recuse himself; disqualify Johnson as counsel for respondents; and Sea Pines' motion to stay the proceedings. Judge Kemmerlin admitted having ex parte communications with respondents' counsel...