THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Val Jacobsen,        Respondent,

v.

American Agviation, Inc., and Transland, Inc.,        Appellants,

Loretta W. Jacobsen,        Respondent,

v.

American Agviation, Inc., and Transland, Inc.,        Appellants.

Appeal From Hampton County
Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2004-UP-424
Heard June 10, 2004 � Filed June 30, 2004

VACATED

Celeste T. Jones and Benjamin E. Nicholson, V, both of Columbia, for Appellants.

John E. Parker and Grahame E. Holmes, both of Walterboro, for Respondents.

PER CURIAM:� Respondents, Val Jacobsen and his wife Loretta, brought suits against appellants, American Agviation, Inc. and Transland, Inc., seeking redress for injuries Val suffered in the crash of his crop duster plane.� When both companies failed to appear for trial, the court held a bench trial in their absence and awarded the Jacobsens over $12 million in damages.� Agviation and Transland then filed motions for a new trial or, in the alternative, to dismiss for lack of personal jurisdiction, amend findings of fact, alter or amend the judgment, open judgment for additional testimony, and/or for relief from judgment.� The court denied all their motions and Agviation and Transland now appeal, asserting procedural errors and contending the trial court lacked personal jurisdiction.� For the reasons set forth below, we vacate the trial court�s order.

FACTUAL/PROCEDURAL BACKGROUND

In August 1994, Val Jacobsen, a high school teacher and part-time crop duster, telephoned American Agviation, an Arkansas company, to request information on an aircraft the company was selling.� American Agviation responded with a letter to Val describing the plane.� On August 19, 1994, after several telephone conversations with Agviation�s president negotiating the price and an overhaul to the plane, Jacobsen traveled to Arkansas and purchased the used 1970 Grumman Ag-Cat airplane.� Val used the plane strictly for crop dusting.� On the morning of July 14, 1996, Val was severely burned when the aircraft crashed shortly after takeoff.�

On July 8, 1999, Val filed suit against Agviation and Transland, Inc. in the Hampton County Court of Common Pleas for injuries he received in the crash.� On July 9, 1999, Loretta filed a loss of consortium action against the two companies.� The Jacobsens alleged the plane caught fire shortly after Val�s take-off, and when he attempted to dump his load of chemicals in order to land safely, the defective design of the crop dusting device prevented him from doing so causing him to crash into a tree.� As to Agviation, the Jacobsens claimed the company negligently sold Val an airplane with defective exhaust stacks.� As to Transland, the Jacobsens claimed it negligently designed the plane�s dumping system in such a way that �the system could unintentionally be in a position to prevent emergency dumping,� thereby causing Val�s injuries.� The Jacobsens� complaints contained a demand for a jury trial.�

The companies, upon receipt of the Jacobsens� Summons and Complaint, each responded by writing a letter to the Jacobsens� attorney, John Parker.� On July 9, 1999, Transland�s president, Conrad Barlow, replied with a letter sent by facsimile and certified mail, informing Parker that Transland did not manufacture the dumping device on the airplane.� On August 4, 1999, Agviation�s president, Frank Kelly, also responded through a letter to Parker, raising factual defenses and asserting the South Carolina court did not have jurisdiction over Agviation.� This letter contained the following carbon copy information in its postscript:

STATE OF SOUTH CAROLINA
Office of Jim Miles, SECRETARY OF STATE
Court of Common Pleas/County of Hampton
P. O. Box 11350
Columbia, S.C. 29211

Transland also sent a copy of its responsive letter to the above address on August 9, 1999.�

Transland maintained it received six separate notices of roster meetings in the matter.� Agviation indicated it received eight such notices.� After receiving one of the notices from the Hampton County Clerk of Court, Transland�s president, Barlow, sent a letter to the Jacobsens� attorney on September 4, 2001, noting the roster included his name under American Agviation and insisting he had no affiliation to Agviation.� After receiving a roster meeting notice in January 2002, Transland sent another letter dated February 11, 2002, this one to The Hampton County Clerk of Court, expressing confusion over the matter, enclosing correspondence with the Jacobsens� attorney, and requesting it be removed from the lawsuit.�

On December 17, 2001, the Hampton County Clerk of Court mailed a roster of cases for the January 28, 2002 term of court to Agviation and Transland.� The notice was addressed to �Attorneys At Law� and stated as follows:

There will be a term of Common Pleas Court on JANUARY 28, 2002 beginning at 9:30 a.m.� The Honorable Rodney A. Peeples will be the presiding judge.� The jury will report at 2:00 p.m.

Enclosed you will find a copy of the roster and a Pre-Trial Brief.� Please fill out a Brief for each case you have on this roster.� Bring three (3) copies to the Roster Meeting January 28, 2002.� If you have any questions, please contact the Administrative Judge�s office at (843) 549-7878.� Please follow all telephone calls to the Judge or Clerk�s office with a faxed or mailed letter.

The notice also gave the name, address, and phone and fax numbers for the Administrative Judge.� The Jacobsens� two suits against Agviation and Transland were placed as cases 9 and 10 on the roster of 108 cases.� Their case listings included the names of John Parker under the Jacobsens and Conrad Barlow under American Agviation, and indicated �PRE-TRIAL DATE:� 00/00/0000.��

On January 28, 2002 when the cases were called to trial, neither Transland nor Agviation appeared before the court to defend against the Jacobsens� claims.� At that time, the Jacobsens proceeded with a bench trial and their attorney presented a full case on the merits, eliciting testimony and introducing evidence to substantiate the Jacobsens� claims.� By order filed February 14, 2002, the court determined its exercise of personal jurisdiction over Agviation and Transland was proper, and found both companies liable for Jacobsen�s injuries and his wife�s loss of consortium, awarding them over $12 million in damages.� Thereafter, Agviation and Transland retained legal counsel and filed timely motions for a new trial or, in the alternative, to dismiss for lack of personal jurisdiction, amend findings of fact, alter or amend the judgment, open judgment for additional testimony, and/or for relief from judgment.� In these motions, Agviation and Transland asserted various grounds for the court to set aside the judgment or grant a new trial, including but not limited to the following: (1) they were not given notice the case was transferred to the non-jury roster and they did not consent to such transfer; (2) they were not given adequate notice of the trial; (3) they were not given a hearing on their motion to dismiss; (4) they were not given notice that, as a party, they were required to attend the roster meeting; and (5) the court lacked personal jurisdiction over them.� Following a hearing, the court denied each of their motions.� This appeal follows.

LAW/ANALYSIS

On appeal, Agviation and Transland contend the trial court erred in sua sponte transferring their cases to the non-jury docket.� We agree.

Rule 38, SCRCP governs the right to trial by jury and provides in pertinent part:

(a) Right Preserved.� The right of trial by jury as declared by the Constitution or as given by a statute of South Carolina shall be preserved to the parties inviolate.� Issues of fact in an action for the recovery of money only or of specific real or personal property must be tried by a jury, unless a jury trial be waived.

(d) Waiver.� The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury.� A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties, except where an opposing party is in default under Rule 55(a).

Rule 38 (a) and (d), SCRCP (emphasis added).� Further, Rule 39 of the South Carolina Rules of Civil Procedure, provides in pertinent part as follows:

When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the calendar and the clerk�s filebook as a jury action.� The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or its own initiative finds that a right of trial by jury of some or all of those issues does not exist.

Rule 39(a), SCRCP (emphasis added).

In their motions before the trial court, Appellants requested the court set aside the judgment or grant them a new trial on the ground that they were not given proper notice that the cases were transferred from the jury roster to the non-jury roster, and they did not consent to such a transfer.� In denying the motion on this basis, the trial court indicated it considered Appellants to technically be in default for failing to properly answer within the time prescribed under the rules [1] .� However, it noted that the Jacobsens never moved pursuant to Rule 55(a) to have the defaults entered upon the calendar, [2] and therefore Appellants �did not waive their right to a trial by jury pursuant to Rule 38(d).�� The court further recognized the constraints of Rule 39(a), SCRCP, requiring consent of all parties before issues in which a jury trial is demanded can be heard non-jury, unless the right to trial by jury does not exist for some or all of the issues.� Nonetheless, it denied the motion finding �any problems arising in these actions are the direct result of [Agviation�s and Transland�s] own neglect� in failing to monitor the progress in these cases.� We find this ruling to be in error.

This action is indisputably one for the recovery of money for which a jury trial may properly be demanded.� Rule 38(a), SCRCP.� It is equally clear that the Jacobsens demanded in their complaints that these cases be tried by a jury.� Agviation and Transland were entitled to rely on the Jacobsens� demand for trial by jury and need not make their own demand.� See Baughman v. Am. Tel. & Tel. Co, 298 S.C. 127, 129, 378 S.E.2d 599, 600 (1989) (�Under Rule 38, a defendant may rely on a plaintiff�s demand for a jury trial.�)� Because a demand for jury trial was properly made, such demand could not be withdrawn �without the consent of the parties,� unless the opposing party is in default.� Rule 38(d), SCRCP.� Further, the parties or their attorneys did not �by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury� pursuant to Rule 39(a), SCRCP.�

Thus, the rules of civil procedure are clear, that where a jury trial is properly demanded, such demand may not thereafter be withdrawn without the consent of all parties, unless the party from whom consent is not obtained has been held in default pursuant to Rule 55(a), SCRCP.� As noted by the trial court, the Jacobsens never moved pursuant to Rule 55(a) to have any defaults entered upon the calendar. [3] � Rather, they proceeded to trial, presenting evidence on both liability and damages.� We therefore hold the trial court erred in transferring the cases to the non-jury docket and hearing them in a bench trial.� Where the consent of all parties is not obtained, there is no provision in the rules allowing the transfer of a case from the jury docket based upon a party�s failure to appear for trial, unless default has been entered against that party.� Here, the fact that Appellants were not present when the case was called for trial is irrelevant, as there had been no entry of their default.

For the foregoing reason, the judgments against Agviation and Transland are vacated. [4]

VACATED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.