Keels v. Pierce, No. 2036

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 315 S.C. 339,433 S.E.2d 902
• Parties: Henry C. KEELS, Jr., and Keels Music Company, Inc., Respondents, v. B.J. PIERCE, Appellant. . Heard
• Decision Date: 20 April 1993
• Docket Number: No. 2036

Page 902

433 S.E.2d 902 315 S.C. 339 Henry C. KEELS, Jr., and Keels Music Company, Inc., Respondents,
v.
B.J. PIERCE, Appellant. No. 2036. Court of Appeals of South Carolina. Heard April 20, 1993.
Decided June 21, 1993.
Rehearing Denied Aug. 19, 1993.

Page 903

[315 S.C. 340] Hugh L. Willcox, Jr., and W. Reynolds Williams, both of Willcox, McLeod, Buyck, Baker & Williams, Florence, for appellant.

David W. Keller, Jr., of McGowan, Keller, Eaton & Stewart, Florence, for respondents.

PER CURIAM:

In September 1990, Henry C. Keels and Keels Music Company, Inc. (collectively referred to as "Keels") brought an action against B.J. Pierce for foreclosure of a real estate mortgage and a security interest in related personal property (a [315 S.C. 341] mobile home park, mobile homes, vehicles, and equipment). Pierce answered with a general denial and an affirmative defense based upon waiver of the right to accelerate the debt.

In January 1991, Pierce brought a separate action against Keels alleging breach of an express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, violation of the South Carolina Unfair Trade Practices Act, S.C.Code Ann. § 39-5-10 to -560 (1985), for alleged deceptive acts in the sale of the park, and fraud arising out of the sale of the mobile home park. In February 1991, Pierce moved to amend his answer in the first action to allege that the parties agreed to modify the terms of the financing agreement for the sale of the park. In March 1991, Pierce moved to consolidate the two actions for discovery and trial purposes, and sought a continuance of the foreclosure action.

On March 27, 1991, the case was called for a merits hearing on the foreclosure action. The trial court denied all of Pierce's motions and proceeded with trial of Keels's claims. The court ordered judgment for Keels and Pierce appeals. We affirm.

1. Pierce first contends the trial court erred in denying his motion to consolidate the two cases. He asserts his claims in the second action were permissive counterclaims for which he would have waived a jury trial had he raised them in his answer. See, e.g., C & S Real Estate Services, Inc. v. Massengale, 290 S.C. 299, 350 S.E.2d 191 (1986), modified on other grounds, Johnson v. South Carolina National Bank, 292 S.C. 51, 354 S.E.2d 895 (1987); John D.

Page 904

Hollingsworth on Wheels v. Arkon Corp., 273 S.C. 461, 257 S.E.2d 165 (1979). Thus, he claims, he had no choice but to bring a separate action, which for convenience and economy's sake should have been consolidated with the first action under Rule 42, SCRCP.

In our opinion, Rule 13, SCRCP, does not place a pleader in this dilemma. If it is uncertain whether a counterclaim is compulsory or permissive, the pleader may simply plead the claim and make demand for a jury trial on it. If it is compulsory, he retains his right to a jury trial. See Johnson v. South Carolina National Bank, 292 S.C. 51, 354 S.E.2d 895 (1987). If it is permissive, the court, on its own motion or the motion of the pleader, may order a separate trial of the counterclaim pursuant to Rule 42(b) to avoid prejudice[315 S.C. 342] to the pleader's right to a jury trial. See Rule 13(i), SCRCP. The rule laid out in Hollingsworth, supra, and Massengale, supra, applies only when it is clear the counterclaim is permissive. In that situation, the pleader is on notice that asserting an obviously permissive counterclaim, which under the Rule 13...