S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Wachovia Bank of South
Carolina, N.A., successor
by merger of South
Carolina National Bank, Respondent,
v.
Jay H. Player and
Institution Food House,
Inc., of whom Jay H.
Player is Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Georgetown County
Benjamin H. Culbertson, Master in Equity
Opinion No. 25168
Heard June 7, 2000 - Filed July 7, 2000
REVERSED IN PART AND AFFIRMED
Gilbert Scott Bagnell, of Columbia, for petitioner.
Warren R. Herndon, of Woodward, Cothran & Herndon,
of Columbia, for respondent.
p.394
Wachovia Bank v. Player
JUSTICE PLEICONES: We granted certiorari to review a
decision of the Court of Appeals holding that the master-in-equity lacked
subject matter jurisdiction to consider petitioner's Rule 60(b)(4), SCRCP,
motion. Wachovia Bank of South Carolina N.A. v Player, 334 S.C. 200, 512
S.E.2d 129 (Ct. App. 1999). We reverse this holding, address the appeal on
the merits, and affirm the master's order.
Respondent (Bank) brought this foreclosure action against petitioner,
who defaulted. The case was referred to the master with finality, and with
authority to directly appeal to this Court. 1 On June 9, 1997, the master
issued the foreclosure order and on June 20, 1997, petitioner moved to set it
aside under Rule 60(b)(4) on the ground that the court lacked personal
jurisdiction over him because service had been improper. The motion was
denied following a hearing and petitioner appealed.
The Court of Appeals sua sponte ordered petitioner to address the
master's jurisdiction to entertain the Rule 60(b)(4) motion, and ultimately
dismissed the appeal, finding the master lacked subject matter jurisdiction.
Wachovia Bank, supra. We granted certiorari, and now reverse.
The order of reference specifically stated that the master was "to take
the testimony arising under the pleadings and to make his findings of fact and
conclusions of law with authority to enter a final judgment in the case . . . .
provided further that pursuant to S.C. Code [sic] Section 15-39-680 (1986),
that the Master-in-Equity is hereby authorized to conduct the public sale at
any specified time. . ." The "Master's Report and Judgment of Foreclosure
and Sale" which was filed June 9, set the sale for a future date and retained
jurisdiction to do all necessary acts incident to the foreclosure.
The Court of Appeals cited from the order of reference, and held that
once the master ordered foreclosure, "he had exercised the full extent of the
power he possessed, i.e., he had entered a final judgment." Wachovia Bank of
South Carolina v. Player, supra. The Court of Appeals concluded the master's
powers after entry of the foreclosure judgment were limited to : (1) matters
pertaining to the sale, see Rule 71, SCRCP; (2) to post-trial motions under
Rules 52, 59, or 60(a), SCRCP; and (3) if an appeal were taken, to setting an
p.395
1 This reference occurred prior to the 1999 amendment of Rule 53,
SCRCP, and the 1999 amendment of S.C. Code Ann. §14-11-85 which altered
the practice of referring matters. Therefore, this order included the "finality"
and "direct appeal" provisions.
p.396
Wachovia Bank v. Player
appeal bond or entertaining a supersedeas motion. Id. We disagree.
The proper construction of the order of reference is that it gives the
master jurisdiction over the case and all matters arising from it until the
master has performed all the duties assigned to him. In this case, those duties
included conducting the sale and disposing of the surplus fund. See Rule
71(c), SCRCP. Once the master has concluded his duties and entered all
necessary orders, his jurisdiction ends and any post-trial motions, other than
those covered by this Court's May 22, 1986, order, 2 are to be heard by the
circuit court. The language in the order of reference authorizing the master to
enter a final judgment is not a limitation on his jurisdiction, but rather is
descriptive of the nature of his order. Under the rules in effect at the time of
the reference, had the order not authorized a final judgment, the master
would have issued a report to the circuit court, which in turn would have
entered the final order. See pre-1999 versions of Rule 53, SCRCP and § 14-11
85. 3
Moreover, it makes common sense to permit the judge in whose court
the matter is pending to decide the merits of any Rule 60 motion. Otherwise,
if the circuit court were to hear this 60(b)(4) motion, it is conceivable that it
would set aside service while at the same time the master was proceeding
with the sale. Compare Hudson v. South Carolina Dep't of Highways and
Public Transp., 324 S.C. 245, 478 S.E.2d 839 (1996) (leave of appellate court is
required when Rule 60(b) motion is sought to be filed during the pendency of
an appeal because the "appellate court should not needlessly expend its
limited time and resources processing and deciding an appeal from an order of
judgment which has been set aside").
Here, the master had not concluded his duties under the order of
reference when this Rule 60(b)(4) motion was filed, and therefore he had
jurisdiction to decide the motion. 4 We reverse the decision of the Court of
2 Pursuant to this order, a post-trial motion filed under Rules 50, 52, 59
or 60(a), SCRCP, is to be delivered to the trial judge, who is then to dispose of
it promptly.
3 Under the 1999 changes, all matters will be referred with finality. S.C.
Code Ann. § 14-11-85 (Supp. 19'99); Rule 53, SCRCP.
4 cf., Shillito v. City of Spartanburg, 215 S.C. 83, 54 S.E.2d 521
(1949)(generally, trial judge loses jurisdiction over a case finally determined
when he adjourns sine die).
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Wachovia Bank v. Player
Appeals holding the master lacked jurisdiction. Further, in the interest of
judicial economy, we address the merits of petitioner's appeal now.
Petitioner's 60(b)(4) motion was predicated on his claim that substituted
service by publication was improper, and thus the court did not have personal
jurisdiction over him. Petitioner claims the process server did not exercise
"actual" due diligence because if she had, she would have easily found him.
He also points out that the petition for an order of publication contains an
untrue statement, i.e., it asserts that the "Sheriff for Georgetown County did
attempt service upon said defendant. . ." In fact, service was only attempted
by a private process server. It is clear from reading the two documents
together that the petition is inaccurate, but that the process server's affidavit
reflects due diligence by her.
Following an evidentiary hearing on petitioner's motion, the master
issued an order refusing to set aside service of process. He found petitioner
failed to present any evidence of fraud or collusion in obtaining the order for
service by publication.
An order for service by publication may be issued pursuant to S.C., Code
Ann. § 15-9-710 (Supp. 1999) when an affidavit, satisfactory to the issuing
officer, is made stating that the defendant, a resident of the state, cannot,
after the exercise of due diligence, be found, and that a cause of action exists
against him. § 15-9-710(3). When the issuing officer is satisfied by the
affidavit, his decision to order service by publication is final absent fraud or
collusion. Yarborough v. Collins, 293 S.C. 290, 360 S.E.2d 300 (1987); Ingle v.
Whitlock, 282 S.C. 391, 318 S.E.2d 367 (1984); Gibson v. Everett, 41 S.C. 22,
19 S.E. 286 (1894); Yates v. Gridley, 16 S.C. 496 (1882). Since there were
neither allegations nor proof of fraud or collusion before the master, 5 he
correctly refused to set aside service.
Petitioner also appears to, argue that the Court should draw a
5 In his brief before the Court, petitioner alleges the "material
misrepresentations" in the Bank's petition for an order of publication were
fraudulent. In his motion, and at the 60(b)(4) hearing before the master,
however, there were no allegations of fraud or collusion, and the emphasis
was on the alleged lack of due diligence by the process server. If petitioner
wished to assert fraud or collusion, the burden of presenting such evidence,
e.g., through the testimony of the clerk who ordered the publication or of the
process server, fell to him.
p.398
Wachovia Bank v. Player
distinction between "direct" attacks on service such as his, and other
"collateral" attacks. We know of no basis for characterizing this 60(b)(4)
motion as "direct" rather than "collateral." In addition, to the extent
petitioner relies on Ingle v. Whitlock, 282 S.C. 391, 318 S.E.2d 367 (1984), for
the proposition that the Court does review the sufficiency of due diligence, he
is misreading the opinion. In that opinion, the Court first recited the
allegations in the affidavit, but then cited Yates v. Gridley, supra, for the
proposition that the sufficiency of the due diligence allegations is a matter for
the officer reviewing the affidavit. There is no "direct/collateral" distinction,
nor any support for petitioner's request that this Court review the merits of
the due diligence issue.
Finally, there is some suggestion in petitioner's brief that the master's
refusal to review his due diligence claim on its merits deprived him of due
process. This issue was never raised to the master, and cannot properly be
raised now. Beaufort County v. Butler, 316 S.C. 465, 451 S.E.2d 386
(1994)(constitutional claims must be raised and ruled upon below to be
preserved for appeal). In any case, we perceive no constitutional problem
here.
For the reasons given above, we reverse the decision of the Court of
Appeals, and affirm the master's order refusing to grant petitioner relief
under Rule 60(b)(4).
Reversed in part and Affirmed.
Toal, C.J., Moore, J., Acting Justices Ernest A. Finney, Jr., and
Gary E. Clary, concur.
p.399