Preferred Sav. Bank, Inc. v. Elkholy
| Decision Date | 19 September 1990 |
| Docket Number | No. 1562,1562 |
| Citation | 303 S.C. 95,399 S.E.2d 19 |
| Court | South Carolina Court of Appeals |
| Parties | PREFERRED SAVINGS BANK, INC., Respondent, v. Abdo and Margaret ELKHOLY, Appellants. . Heard |
Desa A. Ballard of Ness, Motley, Loadholt, Richardson & Poole, Barnwell, and Edward T. Kelaher of Kelaher, Haar, Bass & Connell, Surfside Beach, for appellants.
Linda Weeks Gwin of Thompson, Henry, Gwin, Brittain & Stevens, Conway, for respondent.
Respondent Preferred Savings Bank, Inc., instituted this action against appellants Abdo and Margaret Elkholy seeking recovery of $124,000 in earnest money for the breach of twenty real estate contracts. The Elkholys counterclaimed alleging breach of contract, breach of contract accompanied by a fraudulent act, fraud, and unfair trade practices. The Elkholys moved to transfer the case to the jury roster, but this motion was denied. The case was referred by consent to the Master-In-Equity, who directed a verdict for Preferred on each of the Elkholys' counterclaims except the action for breach of contract. From an order of the master awarding judgment for Preferred in the amount of $124,000 and dismissing the Elkholys' counterclaim for breach of contract, the Elkholys appeal. We affirm.
The Elkholys and Preferred entered into contracts whereby the Elkholys agreed to purchase from Preferred twenty condominium units in a project known as Royal Garden Resort. The contracts called for a deposit of $6,200 on each unit, for a total of $124,000, to be held in escrow.
The contracts provided as follows:
Purchaser may apply to Seller or an affiliated company of Seller or Purchaser may apply to any mortgage lender for this loan. Loan application shall be made and all supporting information furnished no later than ten (10) days from the date of this Purchase Agreement and failure to comply shall constitute grounds for default on the part of Purchaser at Seller's option.... Should Purchaser hinder the loan application process or fail to close within fourteen (14) days after obtaining a loan commitment, the Purchaser's deposit money shown in item 1(a) shall be subject to default provisions in item 7.
Item 7 of the contracts provided:
If the Purchaser shall default in the terms and conditions contained herein, Seller may retain all amounts paid hereunder as liquidated damages or pursue any other remedies available at law or in equity....
Subject to the Elkholys being able to qualify, Preferred agreed to furnish financing on the twenty condominium units. After a hearing on the matter, the master found the Elkholys breached that portion of the contracts which provided the purchasers would be subject to the default provision of item 7 if the purchaser hindered the loan application process or failed to close within fourteen days of receiving a loan commitment. He thus found Preferred was entitled to retain the $124,000 in earnest money.
The Elkholys first contend the trial court erred in denying their motion for a jury trial. The record indicates the Elkholys' initial answer and counterclaim did not contain a demand for a jury trial. Following a motion to dismiss the Elkholys' fourth defense and counterclaim based on unfair trade practices, the court found the Elkholys failed to allege any public harm and allowed amendment of their answer and counterclaim to include the same. The Elkholys then included a demand for a jury trial in their amended answer and counterclaim. The trial court found the demand untimely and denied the motion. The case was later referred to the master by consent of the parties.
We note first that the record before us contains no notice of an intent to appeal the order of Judge Cottingham which denied the Elkholys' motion for a jury trial. Secondly, it is clear that the Elkholys failed to immediately appeal from the order denying their motion to transfer the case to the jury calendar. Because this order affected the mode of trial, and since this type of case entitled the Elkholys to a jury trial as a matter of right, the Elkholys were required to appeal immediately. See Citizens & Southern Real Estate Services v. Massengale, 290 S.C. 299, 350 S.E.2d 191 (1986) (); Creed v. Stokes, 285 S.C. 542, 331 S.E.2d 351 (1985); Pelfrey v. Bank of Greer, 270 S.C. 691, 244 S.E.2d 315 (1978). Cf. Rowe Furniture Corp. v. Carolina Wholesale Furniture Co., Inc., 292 S.C. 575...
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...(1986); First Union National Bank of South Carolina v. Soden, 333 S.C. 554, 511 S.E.2d 372 (Ct.App.1998); Preferred Sav. Bank, Inc. v. Elkholy, 303 S.C. 95, 399 S.E.2d 19 (Ct.App.1990). We decline petitioner's invitation to extend our interpretation of this statute so as to permit or to req......
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Benedict Coll. v. Nat'l Credit Sys., Inc.
...Id. Thus, special damages must “be specifically stated” to avoid surprise to the other party. Preferred Sav. Bank, Inc. v. Elkholy, 303 S.C. 95, 99, 399 S.E.2d 19, 21 (Ct.App.1990) (discussing Rule 9(g)); see alsoRule 9 notes (providing that Rule 9(g) mirrors the substance of South Carolina......
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