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
In The Court of Appeals
Jara Uzenda Gobbi, Appellant,
People’s Federal Bank, Richard M. Lovelace, Jr., and Lynette R. Hedgepath, Respondents.
James E. Lockemy, Circuit Court Judge
Edward B. Cottingham, Circuit Court Judge
Unpublished Opinion No. 2006-UP-245
Submitted May 1, 2006 – Filed May 16, 2006
Jara Uzenda Gobbi, of
Myrtle Beach, for Appellant.
Elizabeth S. Gordon, of
Charleston, Lynette Rogers Hedgepath and Richard M. Lovelace, Jr., both of Conway; for Respondents.
PER CURIAM: In this action arising out of the transfer of a deed and subsequent procurement of a mortgage, Jara Uzenda Gobbi appeals the circuit court’s order dismissing all of her causes of action. Gobbi argues the court erred in: (1) finding it had jurisdiction to hear the motions in the case; (2) declining to grant her motion to enlarge the time to file a motion to reconsider; (3) failing to give proper notice of the hearing; and (4) finding she had to comply with previously-issued circuit court orders despite the existence of outstanding motions. We affirm.
On June 26, 2002, Gobbi commenced this action against People’s Federal Bank, and attorneys Richard M. Lovelace, Jr. and Lynette R. Hedgepath (Respondents). In her complaint, Gobbi contended Lovelace “coerced and tricked” her into converting a
In response, Lovelace generally denied the allegations and raised the following affirmative defenses: (1) the three-year statute of limitations; (2) res judicata; and (3) the South Carolina Frivolous Proceedings Act. Lovelace also sought a temporary injunction prohibiting Gobbi from filing any other actions or motions in
Similarly, Hedgepath generally denied Gobbi’s allegations and raised the following affirmative defenses: (1) failure to state facts sufficient to constitute a cause of action pursuant to Rule 12(b)(6), SCRCP; (2) failure to plead the specific elements of fraud as required by Rule 9(b), SCRCP; (3) the three-year statute of limitations; (4) abuse of process; and (5) the South Carolina Frivolous Proceedings Act. Hedgepath also sought a temporary injunction against Gobbi. On the same date that Hedgepath filed her answer and counterclaim, she filed motions to dismiss which were identical in substance to Lovelace’s motions.
People’s Federal Bank also generally denied Gobbi’s allegations and asserted Gobbi’s complaint should be dismissed for the following reasons: (1) inadequate service of process; (2) failure to state facts sufficient to state a cause of action pursuant to Rule 12(b)(6); (3) collateral estoppel; (4) the three-year statute of limitations; (5) failure to plead the requisite elements of fraud; and (6) failure to plead special damages as required for a cause of action for conspiracy.
When conflict arose between the parties regarding discovery issues, the case was set for a hearing on September 18, 2002, before Circuit Court Judge James E. Lockemy. On the day of the hearing, Judge Lockemy issued a form order in which he ordered Gobbi to be available for Lovelace to depose her within thirty days from the date of the order. Judge Lockemy also discussed with the parties about scheduling another hearing to rule on the parties’ pending motions.
On February 14, 2003, Judge Lockemy held a hearing on the parties’ outstanding motions. At the conclusion of the hearing, Judge Lockemy orally ruled and issued a form order in which he took under advisement Lovelace’s motion to dismiss for res judicata. He struck Gobbi’s causes of action for breach of trust, intentional infliction of emotional and financial harm, and financial harm. As to Gobbi’s remaining causes of action, Judge Lockemy ordered Gobbi to: (1) fully answer People’s Federal Bank’s request to produce within fourteen days; (2) obtain within forty-five days an affidavit from an attorney establishing the standard of care for legal malpractice and outlining how Lovelace and Hedgepath deviated from this standard; (3) make more definite and certain her claim for fraud and to state with specificity her damage claims for all causes of actions; and (4) to appear at a scheduled deposition and bring all of her documents supporting her claims against Respondents. Additionally, Judge Lockemy instructed the parties that Gobbi’s lawsuit would be treated as a cause of action for damages as opposed to declaratory judgment action requested by Gobbi.
Because Gobbi failed to comply with the mandates of the February 14, 2003 order, Judge Lockemy issued an order on April 14, 2003, in which he struck Gobbi’s causes of action for legal malpractice and fraud. He also granted Gobbi an additional thirty days to definitively state her claims for damages. Finally, Judge Lockemy informed the parties that he would no longer be presiding over the case because he had been called to report for active military duty on April 21, 2003. He requested the pending motions to dismiss be placed on the motions calendar and reassigned to another judge by the Chief Administrative Judge.
On May 9, 2003, Gobbi filed a motion to enlarge the time to file a motion for reconsideration of Judge Lockemy’s orders dated February 14, 2003, and April 14, 2003. Because Judge Lockemy requested that the case be assigned to another judge, Gobbi moved for the two orders to be stayed until another judge was assigned.
Ultimately, the case was assigned to Circuit Court Judge Edward B. Cottingham who held a hearing on January 5, 2004, to resolve the parties’ outstanding motions. During the hearing, Judge Cottingham informed the parties that he had been assigned the case as a result of Judge Lockemy’s military service. Specifically, Judge Cottingham found Judge Lockemy was unavailable and, thus, he assumed jurisdiction over the case. After hearing arguments from the parties, Judge Cottingham declined to overrule Judge Lockemy’s orders and found that Gobbi had not complied with these orders. Based on this finding, Judge Cottingham dismissed Gobbi’s remaining causes of action in an order dated January 5, 2004.
On January 28, 2004, Gobbi filed a motion for reconsideration of Judge Cottingham’s order. In her motion, Gobbi raised several issues including a challenge to Judge Cottingham’s jurisdiction to hear her motion to reconsider Judge Lockemy’s orders. Gobbi also requested a hearing on her motion.
Without holding a hearing, Judge Cottingham ruled on Gobbi’s motion. By order dated April 6, 2004, Judge Cottingham found upon review of the case file that Gobbi had not filed a motion to reconsider Judge Lockemy’s orders. Instead, Judge Cottingham noted that Gobbi had only filed a motion to enlarge the time to file a motion for reconsideration. Based on this procedural error, Judge Cottingham concluded that Gobbi had not timely filed her motion to reconsider and, thus, Judge Lockemy’s orders dated February 14, 2003, and April 14, 2003, were the law of the case. Because Gobbi had failed to comply with the terms of these orders, Judge Cottingham dismissed Gobbi’s remaining causes of action. This appeal followed.
Gobbi argues Judge Cottingham’s order should be “deemed void or voidable for lack of jurisdiction.” Specifically, she contends that Judge Lockemy retained jurisdiction over any motions to reconsider his orders and, thus, Judge Cottingham was without jurisdiction to rule on Judge Lockemy’s orders. We disagree.
Rule 63 of the South Carolina Rules of Civil Procedure governs the disposition of this issue. Rule 63 provides:
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then the resident judge of the circuit or any other judge having jurisdiction in the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Rule 63, SCRCP.
Initially, we note that Gobbi appeared to recognize that Judge Lockemy would be unavailable due to his military duty to rule on any motions after he issued the order dated April 14, 2003. Significantly, in her motion to enlarge the time to file a motion for reconsideration, Gobbi requested additional time to file her motion “until another judge is assigned. At which time, the issues presented to Judge Lockemy should be revisited.” Based on this statement, we question whether Gobbi waived any right to challenge Judge Cottingham’s authority to rule on her motion.
In any event, we find the proper procedure was followed pursuant to Rule 63, SCRCP. By his order dated April 14, 2003, Judge Lockemy informed the parties that he was being deployed for active military duty on April 21, 2003, and requested that the case be assigned to a