Davis Adv. Sh. No. 28
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Catherine Roche, as

Personal Representative

for the Estate of George

Roche, Petitioner,

v.

Young Brothers, Inc., of

Florence, d/b/a Days Inn

East, Respondent.







ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS





Appeal From Florence County

Daniel E. Martin, Sr., Circuit Court Judge



Opinion No. 24829

Heard May 27, 1998 - Filed August 10, 1998



REVERSED



William P. Hatfield and Gary I. Finklea, both of

The Hyman Law Firm, of Florence, for petitioner.





William Reynolds Williams, and C. Craig, Young,

both of Willcox, McLeod, Buyck & Williams,

of Florence, for respondent.

p.10


CATHERINE ROCHE v. YOUNG BROTHERS





TOAL, A.J.: This case involves a default judgment in a negligence

action. George Roche originally brought this negligence action against

Respondent Young Brothers, d/b/a Days Inn East ("Young Brothers"), as a

result of a slip-and-fall accident in Young Brothers' motel parking lot.

Petitioner Catherine Roche, as personal representative of her husband's

estate, appeals the Court of Appeals' decision that Young Brothers' consent

was required prior to the circuit court appointing a special referee to consider

the damages matter. We reverse and reinstate the special referee's order.





FACTUAL/PROCEDURAL BACKGROUND



On March 19, 1990, Roche slipped and fell in the parking lot of Young

Brothers' motel located in Florence, South Carolina. Roche filed suit against

Young Brothers in circuit court on August 31, 1990. Young Brothers failed

to answer Roche's complaint. A default was entered against Young Brothers

on November 2, 1990. Without notice to Young Brothers, a damages hearing

was held before the circuit court on February 6, 1992. The circuit court

awarded Roche $15,000.00 in actual damages and $30,000.00 in punitive

damages.







On February 14, 1992, Young Brothers filed a motion to set aside the

default judgment under Rule 60(b), SCRCP. Young Brothers argued that the

judgment should be set aside because service of process was not perfected,

and, in the alternative, a new damages hearing should be granted because

it did not receive notice of the hearing. The circuit court denied the motion.

In July 1992, Young Brothers appealed the judgment to the Court of Appeals.

The Court of Appeals reversed the circuit court's default judgment, finding

service of process had not been perfected. Roche v. Young Bros., Inc. of

Florence, 313 S.C. 356, 437 S.E.2d 560 (Ct. App. 1993) ("Roche I"). We

reversed the Court of Appeals and reinstated the entry of default. Roche v.

Young Bros., Inc. of Florence, 318 S.C. 207, 456 S.E.2d 897 (1995) ("Roche

II"). However, we vacated the default judgment and awarded a new damages

hearing because Young Brothers had failed to receive notice. Thus, the case

was remanded back to the circuit court for a new damages hearing.





In April 1995, Roche filed an ex parte motion with the circuit court

requesting that the damages matter be referred to Eugene A. Fallon, Jr., as

special referee. The circuit court granted the motion. Young Brothers did

not receive notice of Roche's motion prior to the circuit court issuing its order

of reference. Young Brothers later made a motion before the circuit court to

have the reference withdrawn. The motion was denied.

p.11


CATHERINE ROCHE v. YOUNG BROTHERS





The damages hearing was held before special referee Fallon on June 19,

1995. Young Brothers appeared and was represented by counsel. On July

28, 1995, the special referee, by written order, awarded Roche $25,000.00 in

actual damages and $75,000.00 in punitive damages.





On appeal before the Court of Appeals, Young Brothers raised seven

issues challenging the special referee's order. The Court of Appeals only

addressed the issue concerning the circuit court's authority to refer the case

to a special referee without the consent of the defaulting party. The Court

of Appeals reversed, finding consent was necessary since Young Brothers

made an appearance in the case. Roche v. Young Bros., Inc. of Florence, 326

S.C. 488, 485 S.E.2d 110 (Ct. App. 1997) ("Roche III").





We granted Roche's petition for a writ of certiorari to address the

following issue:





Is the consent of a defaulting party required for the circuit court

to refer a case to a special referee, where the defaulting

defendant has made an appearance in the case?





LAW/ANALYSIS



A. CONSENT

Roche argues that the Court of Appeals erred in holding that where the

defaulting party has made an appearance in the case, the consent of that

party must be obtained before the circuit court may refer the case to a

special referee. We agree.





The circuit court's authority to appoint a special referee is supplied by

S.C. Code Ann. 14-11-60 (Supp. 1997), which states:





In case of a vacancy in the office of master-in-equity or in case

of the disqualification or disability of the master-in-equity from

interest or any other reason for which cause can be shown the

presiding circuit court judge, upon agreement of the parties,

may appoint a special referee in any case who as to the case has

all the powers of a master-in-equity. The special referee must be

compensated by the parties involved in the action.





(emphasis added). The emphasized language was added by amendment in

1988. (1988 Act No. 678, Part II, 6, eff. January 1, 1989).



p.12


CATHERINE ROCHE v. YOUNG BROTHERS





The appointment and powers of special referees are further governed

by Rule 53, SCRCP. Rule 53 provides in pertinent part:





(a) Appointment and Compensation. As used in these rules the

word "master" includes a referee . . . . The court in which any

action is pending may appoint a special master for that action;

but where practicable the master appointed by statute for that

county, or for that court, or for the particular type of action

involved shall act. The court may in its discretion appoint as a

special master a person agreed upon by the parties . . . .





(b) Reference. In an action where the parties consent or in a

default case, any and all issues, whether of law or fact, may be

referred to a master