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,
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Unpublished Opinion No. 2004-UP-424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 courts 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 Agviations 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 Vals 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 planes dumping system in such a way that the system could unintentionally
be in a position to prevent emergency dumping, thereby causing Vals 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, Translands 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, Agviations 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, Translands 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 Judges office at (843) 549-7878. Please
follow all telephone calls to the Judge or Clerks 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 Jacobsens injuries and his wifes 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 clerks 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 [Agviations
and Translands] 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 plaintiffs
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 partys 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.
[1] The court relied in part on Renaissance Enters., Inc. v. Summit
Teleservices, Inc., 334 S.C. 649, 651, 515 S.E.2d 257, 258 (1999), holding
a non-lawyer cannot represent a corporation in either the circuit or appellate
courts of this state.
[2] See Rule 55(a), SCRCP (When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear by affidavit or otherwise,
the clerk shall enter his default upon the calendar (file book).)
[3] Indeed, there is no indication that the Jacobsens, by affidavit or
otherwise, asserted the appellants failed to plead or otherwise defend such
that they would have been entitled to entry of default against the appellants
pursuant to Rule 55(a).
[4] Because our decision on this issue renders Appellants other arguments
moot, we need not address them in this appeal.