Dudek v. Ferro

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
Stephen Dudek and Doreen Cross, Respondents,
v.
Thomas M. Ferro and Lorraine B. Ferro, Respondents,
And
Molly M. Morphew, Appellant,
v.
Stephen Dudek, Doreen Cross, Thomas Ferro and
Lorraine Ferro, Respondents.
Appellate Case No. 2017-001393
Appeal From Dorchester County
James E. Chellis, Master-in-Equity
Unpublished Opinion No. 2020-UP-151
Submitted May 1, 2020 – Filed May 20, 2020
AFFIRMED
Molly M. Morphew, of Summerville, pro se.
Steven L. Smith and Samuel Melvil Wheeler, both of
Smith Closser, of Charleston, for Respondents Stephen
Dudek and Doreen Cross.
Thomas Ferro and Lorraine Ferro, both of Denver, CO,
pro se.
PER CURIAM: Molly M. Morphew appeals two orders from a master-in-equity.
These orders stem from two competing contracts to purchase a parcel of property
from Thomas and Lorraine Ferro (the Sellers)—one contract between Stephen
Dudek and Doreen Cross (the Buyers) and the Sellers, and one contract between
Morphew and the Sellers. Both the Buyers and Morphew moved for specific
performance of their respective contracts, and in November 2014, the master
granted the Buyers' motion for specific performance. Morphew and the Sellers
appealed the November 2014 order to this court, and this court affirmed in an
unpublished opinion. See Dudek v. Ferro, Op. No. 2017-UP-019 (S.C. Ct. App.
filed Jan. 11, 2017). After that case was remitted to the master, the master filed an
order setting a closing schedule on April 3, 2017; on May 17, 2017, the master
filed an amended order. Although these orders largely addressed issues between
the Buyers and the Sellers, they also pertained to Morphew, who was living on the
property. After the Buyers and the Sellers closed on the property, the master, in an
order filed in June 2017, found Morphew in contempt of court for failing to vacate
the property. In this appeal, Morphew appeals the order setting a closing schedule
and the order of contempt. She argues the master erred by (1) "demanding a
closing and/or scheduling closing terms, . . . especially without first considering
fraud on [the] court;" (2) "ignoring, or deeming 'moot' or 'irrelevant[,'] evidence
and testimony that [the Buyers] may have unlawfully procured a judgement for
[s]pecific [p]erformance by fraud;" (3) "not allowing or demanding [the Buyers] to
provide [Morphew] documented proof of compliance and/or the ability to perform
per their [s]pecific [p]erformance complaint, and especially with knowledge
Morphew has a pending complaint against [the Buyers] for allegedly procuring
their [s]pecific [p]erformance judgment by fraud and fraud on [the] court;" (4)
"demanding [Morphew] vacate the property at issue, and be held in [c]ontempt,
without first considering [the Buyers'] alleged fraud on [the] court;" (5) "ordering,
sua sponte, [a r]ule to [s]how [c]ause (Contempt), and/or issuing an [o]rder for
[c]ontempt." We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:
1. As to issues one, two, and three, Morphew is precluded from relitigating any
matters relating to the master's November 2014 order granting the Buyers' motion
for specific performance, which this court affirmed on appeal, under the law of the
case doctrine.1 See Flexon v. PHC-Jasper, Inc., 413 S.C. 561, 571, 776 S.E.2d
397, 403 (Ct. App. 2015) ("Under the law-of-the-case doctrine, a party is precluded
from relitigating, after an appeal, matters that were either not raised on appeal, but
should have been, or raised on appeal, but expressly rejected by the appellate
court." (quoting Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009)));
id. at 572, 776 S.E.2d at 403 ("The law of the case applies both to those issues
explicitly decided and to those issues [that] were necessarily decided in the former
[appeal]." (quoting Ross v. Med. Univ. of S.C., 328 S.C. 51, 62, 492 S.E.2d 62, 68
(1997))).
2. As to issues four and five, the master did not err by finding Morphew in
contempt of court.2 See Lollis v. Dutton, 421 S.C. 467, 477-78, 807 S.E.2d 723,
728 (Ct. App. 2017) ("On appeal from an action in equity, [the appellate court]
may find facts in accordance with its view of the preponderance of the evidence."
(quoting Walker v. Brooks, 414 S.C. 343, 347, 778 S.E.2d 477, 479 (2015)));
1
To the extent Morphew argues the master erred by not ordering the Buyers to
provide her with proof of their financing to purchase the property, Morphew failed
to point to any legal basis entitling her to proof of the Buyers' financing.
2
The master had subject matter jurisdiction over this case based on the consent
order for reference. See Bardoon Properties, NV v. Eidolon Corp., 326 S.C. 166,
169, 485 S.E.2d 371, 372 (1997) ("Subject matter jurisdiction refers to the court's
power to hear and determine cases of the general class to which the proceedings in
question belong."); Rule 53, SCRCP ("In an action where the parties consent,
. . . some or all of the causes of action in a case may be referred to a master or
special referee by order of a circuit judge or the clerk of court."). Further,
Morphew waived any defense of lack of personal jurisdiction by not raising the
issue to the master when he sua sponte raised the issue of contempt at the June 12,
2017 hearing. Ex parte Cannon, 385 S.C. 643, 658, 685 S.E.2d 814, 822 (Ct. App.
2009) ("A defendant may waive any complaints he may have regarding personal
jurisdiction by failing to object to the lack of personal jurisdiction and by
appearing to defend his case." (quoting State v. Dudley, 354 S.C. 514, 542, 581
S.E.2d 171, 186 (Ct. App. 2003))); id. ("This failure to object resulting in waiver of
personal jurisdiction applies equally in constructive contempt cases."); id. at 659,
685 S.E.2d at 823 (finding the circuit court had personal jurisdiction over the
appellant because he had notice of the proceedings and waived any defects that
might have occurred by not raising the issue of improper service of process).
Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 705 (Ct. App. 2001) ("The
power to punish for contempt is inherent in all courts and is essential to
preservation of order in judicial proceedings." (quoting In re Brown, 333 S.C. 414,
420, 511 S.E.2d 351, 355 (1998))); id. ("Contempt results from the willful
disobedience of a court order, and before a court may find a person in contempt,
the record must clearly and specifically reflect the contemptuous conduct."). In the
April 3, 2017 order, the master ordered, "Morphew, as the current tenant of the
[p]roperty is ordered to vacate the [p]roperty on or before the closing date, which
will be provided to her by the parties or their counsel." In the master's subsequent
amended order filed on May 17, 2017, the master clarified Morphew was not
entitled to proof of the Buyers' financing and otherwise adhered to its April 3, 2017
order. At the contempt hearing on June 12, 2017, the Buyers testified Morphew
was still in possession of the property after the June 2, 2017 closing date. Because
Morphew remained in possession of the property following the June 2 closing, we
find she violated the April 3, 2017 order. Accordingly, we find the master did not
err by finding Morphew in contempt.3
AFFIRMED.4
LOCKEMY, C.J., and GEATHERS, and HEWITT, JJ., concur.
3
As to any arguments related to the master's treatment of Morphew during the
June 12, 2017 hearing, these arguments are not preserved for appellate review
because they were raised for the first time on appeal. See Elam v. S.C. Dep't of
Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80 (2004) ("Issues and arguments are
preserved for appellate review only when they are raised to and ruled on by the
[master].").
4
We decide this case without oral argument pursuant to Rule 215, SCACR.