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.

Unpublished Opinion No. 2004-UP-368
Submitted March 19, 2004 – Filed June 10, 2004

PER CURIAM: Jerry Louis Brown appeals the dismissal of his action for damages allegedly resulting from a police investigation and the service of arrest warrants on him. We dismiss Brown’s appeal of the issues raised in his motion to alter judgment and affirm the trial court’s ruling on the remaining issue. [1]

On October 25, 2000, Brown, an inmate in the custody of the South Carolina Department of Corrections, brought a civil rights action in the United States District Court against Sylvester R. Harper and the Charleston Police Department, alleging, among other things, fraud and negligence. On October 31, 2000, United States Magistrate Judge Joseph R. McCrorey issued a report recommending that the District Court dismiss Brown’s complaint without prejudice and without issuance and service of process.

On December 27, 2000, Brown filed an action in the Ninth Judicial Circuit Court of Common Pleas alleging among other things that Harper, an officer with the Charleston Police Department, violated Brown’s civil rights during the course of an investigation concerning Brown. [2]

On February 2, 2001, Defendants notified Brown the action was removed to the Charleston Division of United States District Court for the District of South Carolina. By order entered April 26, 2001, United States District Judge David C. Norton dismissed Brown’s action without prejudice and denied Brown’s request to remand the case to the Charleston County Court of Common Pleas, but also provided that Brown could refile in state court if he wished.

On June 15, 2001, Brown filed another action against Harper and the Charleston Police Department in the Ninth Judicial Circuit Court of Common Pleas. Defendants moved to dismiss the action on July 12, 2001. On August 10, 2001, Brown filed a “COMPLAINT OF JOINDERS AS DEFENDANTS” against Julie J. Armstrong and Sandra J. Senn “in there personal capacitys and professional capacitys.” [3] Defendants then filed a motion to dismiss Brown’s “complaint of joinders” and requested other relief, including sanctions against Brown, a preliminary injunction on future cases, and the imposition of a “strike” against Brown. In response, Brown moved to strike Defendants’ motion.

On May 1, 2002, Judge Young, sitting as a special circuit judge, conducted a hearing on both motions. At the conclusion of the hearing, Brown sought and received an additional ten days to file a supplemental memorandum of law and any other materials he felt necessary to respond to Defendants’ arguments.

By order dated and filed July 12, 2002, Judge Young granted Defendants’ motion to dismiss the lawsuit and Brown’s “complaint of joinders.” The grounds for dismissal of the action were (1) the action was time-barred, (2) Defendants were immune from suit, and (3) Brown could not attack the validity of his conviction through a tort and civil rights action. In the same order, Judge Young denied Defendants’ motion for sanctions; however, he included a statement admonishing Brown that “future filings in either this or any other frivolous matter will not be so kindly tolerated.”

On July 25, 2002, Brown filed a motion under Rule 59(e) of the South Carolina Rules of Civil Procedure to alter the judgment, alleging that Defendants had “waived all claims” under Rule 41(c) of the South Carolina Rules of Civil Procedure. Judge Young denied Brown’s motion by order dated August 12, 2002, and filed August 13, 2002. Brown received notice of the denial on August 21, 2002.

On August 20, 2002, Brown filed a “motion from relief from order” under Rule 60(b) of the South Carolina Rules of Civil Procedure arguing as grounds: “Special circuit court judge, lacked subject matter jurisdiction over the parties, when the plaintiff made timely objection upon the record and request jury trial on the matter, and the judgement should be made void.” He further alleged this amounted to an improper deprivation of his constitutional right to a jury trial under the seventh amendment of the federal constitution, as well as a violation of his due process and equal protection rights.

By order dated and filed October 21, 2002, Judge Young denied the motion, noting he “heard the motion not as Master-in-Equity for Charleston County, but rather as Special Circuit Court Judge for Charleston County under appointment of the Chief Justice.”

Brown’s notice of appeal in this case is dated November 12, 2002. In his appellant’s brief, Brown argues (1) Defendants were equitably estopped from raising the statute of limitations as a bar to Brown’s action, (2) the removal of this action to the federal district court was improper, and (3) because he had demanded a jury trial, “the “Master-in-Equity would lack subject matter jurisdiction over summary dismissal.”

1. Defendants argue Brown’s appeal is untimely and should be dismissed. We agree with this argument insofar as it concerns the first two issues Brown discusses in his brief.

Brown does not deny that he received the order denying his Rule 59(e) motion on August 21, 2002. Because Brown’s notice of appeal, dated November 12, 2002, was filed and served more than thirty days after his receipt of the order denying his initial post-trial motion, it was untimely and this court lacks jurisdiction to review the matters raised in the appeal that arise from the orders dismissing his lawsuit and denying his Rule 59(e) motion. [4] Contrary to what Brown suggests in his reply brief, his later motion under Rule 60(b) did not toll the time for him to file his notice of appeal. [5]

2. The third matter Brown discussed in his brief, i.e., his right to a jury trial, however, was the gravamen of his Rule 60(b) motion; therefore, we hold that inasmuch as his notice of appeal was filed within thirty days after he had received the order denying that particular motion, we have jurisdiction to entertain his discussion on that issue. Nevertheless, assuming without deciding that Brown’s objection was properly raised in the trial court and adequately briefed on appeal, we hold the special circuit judge had the authority to dismiss this lawsuit, even if the effect of the dismissal was to prevent Brown from obtaining a jury trial. Contrary to what Brown has argued both to the special circuit judge and to this court, the right to a jury trial “does not exist with respect to a complaint or declaration as to which a dismissal or nonsuit is proper.” [6]

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Brown later agreed with the allegations made against him and is now serving a twelve-year sentence stemming from charges of lewd conduct and criminal sexual conduct with a minor.

[3] Armstrong is the Charleston County Clerk of Court and Senn represented Harper and the Charleston Police Department.

[4] See Rule 203(b)(1) (requiring that a notice of appeal be served on all respondents within thirty days after receipt of written notice of entry of the order or judgment, but further providing that”[w]hen a timely . . . motion to alter or amend the judgment . . . has been made, the time for appeal for all parties shall be stayed and shall run from receipt of written notice of entry of the order granting or denying such motion”); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (holding timely service of the notice of intent to appeal is a jurisdictional requirement, and this Court has no authority to extend or expand the time in which the notice of intent to appeal must be served).

[5] See Coward Hund Constr. Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct. App. 1999) (noting that motions under Rule 60 have no tolling effect on the right to appeal from a challenged judgment).

[6] 47 Am. Jur. 2d Jury § 16 at 724 (1995).