State v. Elephant, Inc.

• Decision Date: 14 August 2019
• Docket Number: Appellate Case No. 2016-001695,Unpublished Opinion No. 2019-UP-290
• Parties: State of South Carolina on the relation of William Walter Wilkins, III, Solicitor of the Thirteenth Judicial Circuit, Respondent, v. Elephant, Inc., Gregory Kenwood Gaines, and Frontage Road Associates, Inc., Defendants, of which Elephant, Inc. and Gregory Kenwood Gaines are the Appellants.
• Court: South Carolina Court of Appeals

State of South Carolina on the relation of William Walter Wilkins, III,Solicitor of the Thirteenth Judicial Circuit, Respondent, v. Elephant, Inc., Gregory Kenwood Gaines, and Frontage Road Associates, Inc., Defendants,of which Elephant, Inc. and Gregory Kenwood Gaines are the Appellants.

Appellate Case No. 2016-001695

Unpublished Opinion No. 2019-UP-290

STATE OF SOUTH CAROLINA In The Court of Appeals

Submitted February 1, 2019

August 14, 2019

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.

Appeal From Greenville County

Charles B. Simmons, Jr., Master-in-Equity

AFFIRMED

Thomas R. Goldstein, of Belk Cobb Infinger & Goldstein, PA, of Charleston; and H. Louis Sirkin, of Cincinnati, Ohio, for Appellants.

Solicitor William Walter Wilkins, III, and Deputy Solicitor Andrew Scott Culbreath, both of Greenville, for Respondent.

PER CURIAM: Elephant, Inc. and Gregory Kenwood Gaines (collectively, Appellants) appeal the trial court's order holding Elephant, Inc. in criminal and civil contempt of a consent order and imposing requirements on Gaines. We affirm.

1. We find no merit to Appellants' argument the trial court lacked subject matter jurisdiction over the contempt proceeding. See Pierce v. State, 338 S.C. 139, 150, 526 S.E.2d 222, 227 (2000) ("Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong." (citing Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994))). Chief Justice Toal assigned Judge Simmons to serve as a circuit court judge for the Thirteenth Judicial Circuit, granting him authority to hear criminal and civil motions and non-jury trials. In addition, in the Order/Rule to Show Cause filed April 29, 2016, the chief administrative judge referred the case to the master-in-equity. See Rule 53(b), SCRCP ("In an action where the parties consent, in a default case, or an action for foreclosure, some or all of the causes of action in a case may be referred to a master or special referee by order of a circuit judge or the clerk of court. In all other actions, the circuit court may, upon application of any party or upon its own motion, direct a reference of some or all of the causes of action in a case."); Blackmon v. Patel, 302 S.C. 361, 362-63, 396 S.E.2d 128, 129 (Ct. App. 1990) (affirming master's order granting summary judgment following ex parte order of reference to the master-in-equity for the appointment of a receiver in which the circuit court judge, without notice to any parties, added a provision to the order as proposed permitting the master to rule upon any summary judgment motions).

2. We find Appellants' challenge to the trial court's independence and impartiality is not preserved for our review as they never requested the trial court recuse itself. See Davis v. Parkview Apartments, 409 S.C. 266, 289, 762 S.E.2d 535, 547 (2014) ("Timeliness is essential to any recusal motion. To be timely, a recusal motion must be made at counsel's first opportunity after discovery of the disqualifying facts." (quoting Duplan Corp. v. Milliken, Inc., 400 F. Supp. 497, 510 (D.S.C. 1975))); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.").

3. We find no merit to Appellants' argument the trial court erred in imposing criminal contempt for what they contend was merely the breach of a civil agreement. While the consent order was the product of an agreement of the parties, it carries the authority of the court. See Johnson v. Johnson, 310 S.C. 44, 46, 425 S.E.2d 46, 48 (Ct. App. 1992) ("[A] consent order is an agreement of the parties, under the sanction of the court, and is to be interpreted as an agreement." (emphasis added) (citing Jones & Parker v. Webb, 8 S.C. 202, 206 (1876))); Ex parte Cannon, 385 S.C. 643, 660, 685 S.E.2d 814, 824 (Ct. App. 2009) ("All courts have the inherent power to punish for contempt, which 'is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice.'" (quoting Miller v. Miller, 375 S.C. 443, 453, 652 S.E.2d 754, 759 (Ct. App. 2007))).

4. We hold the trial court did not err in refusing to grant a continuance. See Bozeman v. State, 307 S.C. 172, 175, 414 S.E.2d 144, 146 (1992) ("The denial of a motion for a continuance is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent an abuse of discretion resulting in prejudice to the appellant." (citing State v. Babb, 299 S.C. 451, 454, 385 S.E.2d 827, 829 (1989))). The trial court's denial of Appellants' motion for a continuance did not deny them the right to counsel. See State v. Bennett, 259 S.C. 50, 53-54, 190 S.E.2d 497, 498 (1972) (holding the trial court's denial of a motion for a continuance did not deny the defendant his right to counsel when defendant was represented by appointed counsel and sought the continuance to obtain other counsel). We disagree with Appellants' contention the court's ruling was erroneous because their attorney lacked preparation time. See State v. Vaughn, 268 S.C. 119, 123, 232 S.E.2d 328, 329 (1977) ("[W]hen a motion for a continuance is based upon the contention that counsel for the defendant has not had time to prepare his case[,] its denial by the trial court has rarely been disturbed on appeal." (quoting State v. Motley, 251 S.C. 568, 572, 164 S.E.2d 569, 570 (1968))); id. (rejecting appellant's argument "that a continuance should have been granted because the solicitor was able to call the case for trial when he desired to do so, and, consequently, inadequate notice of the time for trial was provided").

5. We disagree with Appellants' argument the State was required to provide them with notice of the violation and an opportunity to cure the violation as a condition precedent to a contempt action. See City of N. Myrtle Beach v. E. Cherry Grove Realty Co., LLC, 397 S.C. 497, 503, 725 S.E.2d 676, 679 (2012) ("As a general rule, judgments are to be construed like other written instruments. The determinative factor is the intent of the court, as gathered, not from an isolated partthereof, but from all the parts of the judgment itself. Hence, in construing a judgment, it should be examined and considered in its entirety. If the language employed is plain and unambiguous, there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used." (quoting Weil v. Weil, 299 S.C. 84, 90, 382 S.E.2d 471, 474 (Ct. App. 1989))); Plantation A.D., LLC v. Gerald Builders of Conway, Inc., 386 S.C. 198, 207, 687 S.E.2d 714, 719 (Ct. App. 2009) (stating a condition precedent "connotes any fact other than the lapse of time, which, unless excused, must exist or occur before a duty of immediate performance arises. The question of whether a provision in a contract constitutes a condition precedent is a question of construction dependent on the intent of the parties to be gathered from the language they employ." (quoting Worley v. Yarborough Ford, Inc., 317 S.C. 206, 210, 452 S.E.2d 622, 624 (Ct. App. 1994))). The consent order provides, "If there are any instances of non-compliance [as reported by the independent monitor,] then the Solicitor shall forward such reports to [Appellants], which will include the date and time when the Monitor visited the Subject Property, the incident of non-compliance observed, and where such non-compliance occurred at the premises." Although the consent order did not require provision of notice to Appellants as a condition precedent to a contempt action, we find the record on appeal contains evidence the State, in fact, provided the notice. Independent Monitor One testified, without objection, the Solicitor forwarded the report to Appellants. See Hanna v. Palmetto Homes, Inc., 300 S.C. 535, 537, 389 S.E.2d 164, 165 (Ct. App. 1990) ("[T]estimony received without objection becomes competent and its sufficiency is for the [fact finder]." (citing Cantrell v. Carruth, 250 S.C. 415, 421, 158 S.E.2d 208, 211 (1967))). In addition, the State provided Appellants with notice of the violations in the petition for the Rule to Show Cause, which included affidavits from the independent monitors. We also hold the plain language of the order does not afford Appellants an opportunity to correct the infractions before they can be sanctioned.

6. We disagree with Appellants' argument the trial court erred in considering criminal contempt and civil contempt in the same proceeding. See DiMarco v. DiMarco, 393 S.C. 604, 608, 713 S.E.2d 631, 634 (2011) ("A judge certainly may order both a civil and a criminal contempt sanction, and, in that case, the sanctions should be separate and distinct."). Appellants correctly assert criminal and civil contempt have different standards of proof. See DiMarco, 393 S.C. at 607, 713 S.C. at 633 (stating "[c]ivil contempt must be shown by clear and convincing evidence" and "[c]riminal contempt must be shown beyond a reasonable doubt" (citing Poston v. Poston, 331 S.C. 106, 113, 502 S.E.2d 86, 89 (1998))). We hold the trial court recognized this difference and correctly applied the burdens of proof.

7. To the extent Appellants are challenging the sanctions imposed, this complaint is not properly before this court because it was not raised to or ruled on by the trial court. Appellants withdrew their motion for reconsideration. See In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) ("When a party receives an order that grants certain relief not previously contemplated or presented to the trial court, the aggrieved party...