Smith v. Ocean Lakes Family Campground, 2045

• Decision Date: 20 October 1995
• Docket Number: No. 2045,2045
• Citation: 315 S.C. 379,433 S.E.2d 909
• Court: South Carolina Court of Appeals
• Parties: Paul J. SMITH, Respondent-Appellant, v. OCEAN LAKES FAMILY CAMPGROUND, a Limited Partnership, and Campgrounds, Inc., its General Partner, Appellants-Respondents.

Page 909

433 S.E.2d 909

315 S.C. 379

Paul J. SMITH, Respondent-Appellant, v. OCEAN LAKES FAMILY CAMPGROUND, a Limited Partnership, and Campgrounds, Inc., its General Partner Appellants-Respondents.

No. 2045.

Court of Appeals of South Carolina.

Submitted May 10, 1993.

Decided July 6, 1993.

Certiorari Denied Oct. 20, 1995.

Robert M. Erwin, Jr., and Susan M. Glenn of Nelson, Mullins, Riley & Scarborough, Myrtle Beach, for appellants-respondents.

Dalton B. Floyd, Jr. of Floyd & Prevatte, Surfside Beach, for respondent-appellant.

GARDNER, Judge:

Both parties appeal a final order filed by the master in equity in this case. Ocean Lakes argues initially that the appealed order is a nullity. Because we agree, we dismiss the appeal. ¹

The circuit court referred this case to the master for final judgment with the right of direct appeal to the Supreme Court. The order added the following:

The final order shall be filed within 90 days of the date of this order; otherwise this order of reference is null and void.

The order of reference was dated May 8, 1991. The hearing was held July 10, 1991, but the master did not file his order in this matter until September 30, 1991, which was 145 days after the date of the order of reference.

The master has no power or authority except that which is given to him by the order of reference. See Rule 53(c), SCRCP ("[T]he order of reference to the master may specify or limit his powers and may direct him ... to do or perform a particular act...."); Bonney v. Granger, 292 S.C. 308, 356 S.E.2d 138 (Ct.App.1987) (a master has the same powers as a circuit judge unless the order of reference specifies or limits his powers); 76 C.J.S. References § 76 (1952) (a referee has no powers except those conferred by the order of reference).

In this case, the reference expired by its own terms 90 days after the date of the order of reference. At the time the master filed his order, the case had thus been withdrawn from him and returned to the circuit court, where it remains pending. Therefore, there has been no valid order entered in this case, and the appealed order is a nullity entered without power or authority.

Relying on Lyons v. Butler, 288 S.C. 498, 343 S.E.2d 630 (Ct.App.1986), Smith argues that "the failure of the master to file his order within the time prescribed in the Order of Reference does not void the Order, but simply restores discretion to the trial judge as to the manner of disposing of the case." Additionally, he claims that Ocean Lakes "never elected to end the reference." The record reflects, however, that the order of reference in the instant case, unlike that in Lyons, stated that it would become "null and void" if the master failed to file his order within the time prescribed, and this event would terminate the reference. This language clearly distinguishes this case from Lyons.

Smith asserts that the order of reference "did not impose any limitation or reservations upon the Master's ...