Valerie Drafts v. R.O. Levy ( 2022 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Valerie Drafts, Veronica Drafts, and Tarance F. Drafts,
III, Respondents,
v.
R.O. Levy, South Carolina Department of Revenue, The
United States of America, and Batesville Casket Co.,
Defendants,
of whom R.O. Levy is the Appellant.
Appellate Case No. 2019-002042
Appeal From Lexington County
James O. Spence, Master-in-Equity
Unpublished Opinion No. 2022-UP-311
Submitted May 1, 2022 – Filed July 27, 2022
AFFIRMED
Joseph Henry, of Joseph Henry, PC, of Irmo, for
Appellant.
Warren R. Herndon, Jr., of Woodward Cothran &
Herndon, of Lexington, for Respondents.
PER CURIAM: R.O. Levy (Appellant) appeals the master-in-equity's order of
foreclosure. On appeal, Appellant argues the master erred in conducting the
foreclosure proceeding in his absence and erred in determining his interrogatory
challenge was meritless. We affirm.
1. Thomas Levy, Appellant's brother, began representing Appellant shortly after
Valarie Drafts, Veronica Drafts, and Tarrance Drafts, III (collectively, the
Draftses) brought their foreclosure action. Neither Appellant nor any of his
attorneys appeared at the foreclosure proceeding. The clerk informed Levy of the
foreclosure proceeding date three months in advance, and the Draftses' attorney
notified Levy ten days before the proceeding. Joseph Henry, who now represents
Appellant, did not properly file his notice of appearance until two months after the
foreclosure proceeding. Therefore, we hold the master did not err in conducting
the foreclosure proceeding in Appellant's absence because the Draftses properly
notified Levy, who was Appellant's only attorney of record at the time the notice
was sent. See U.S. Bank Tr. Nat'l. Ass'n v. Bell, 385 S.C. 364, 373, 684 S.E.2d
199, 204 (Ct. App. 2009) ("In an appeal from an action in equity, tried by a judge
alone, we may find facts in accordance with our own view of the preponderance of
the evidence."); Rule 5(a), SCRCP (stating written notices shall be served upon
each of the parties of record); Ex parte Strom, 343 S.C. 257, 263-64, 539 S.E.2d
699, 702 (2000) ("[O]nce an attorney has made a formal appearance and becomes
attorney of record in an action, withdrawal can only be accomplished by order of
the court."); id. at 263, 539 S.E.2d at 702 ("Strong policy considerations dictate
that a client and the court must be unequivocally informed when an attorney
intends to withdraw from representing a party, for whatever reason."); Culbertson
v. Clemens, 322 S.C. 20, 25, 471 S.E.2d 163, 165 (1996) ("The best way to achieve
this is by strict adherence to Rule 11(b), which was designed to eliminate any
confusion regarding which attorneys are representing parties by requiring that any
changes be made by application to the court."); Rule 11(b), SCRCP ("An attorney
may be changed by consent, or upon cause shown, and upon such terms as shall be
just, upon application, by order of the Court, and not otherwise."); Ex parte Strom,
343 S.C. at 262, 539 S.E.2d at 701 ("[T]he text of Rule 11(b) implies, either the
attorney, the replacement attorney, or the client may apply for a court order
changing or removing an attorney." (emphasis added)).
2. Although Appellant asserts the Draftses' responses to his interrogatories were
inadequate, he never filed a motion to compel. Because the Draftses had
responded to the discovery, the trial court could not use Rule 37(d), SCRCP, to
sanction the Draftses, as that subsection only applies when a party fails to serve
any response. Where, as here, a party responds but the other party deems the
responses incomplete or otherwise inadequate, Rule 37(b), SCRCP, requires a
party to seek a ruling compelling the discovery response. Therefore, we hold the
master did not err determining that Appellant's argument concerning the
interrogatory responses was meritless. See Rule 37(a)(1)-(2), SCRCP (stating a
discovering party may apply to the court in which its action is pending for an order
compelling discovery when the opposing party fails to answer interrogatories
submitted under Rule 33, SCRCP); Richardson ex rel. 15th Cir. Drug Enf't Unit v.
Twenty-One Thousand & no/100 Dollars ($21,000.00) U.S. Currency & Various
Jewelry, 430 S.C. 594, 598, 846 S.E.2d 14, 16 (Ct. App. 2020) ("The discovering
party may also make such a motion if it believes, in good faith, the answers it has
received are incomplete or the objections improper."); id. at 598-99, 846 S.E.2d at
16 ("The court may then issue an order compelling discovery; if the order is not
obeyed, the court may take appropriate action, including imposing
sanctions . . . .").
AFFIRMED.1
KONDUROS, HILL, and VINSON, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.