Chief Justice TOAL.
In this case, the Court granted James G. Shore and Jan Shore's (Petitioners) request for a writ of certiorari to review the court of appeals' decision in Linda Mc Company, Inc. v. Shore, 375 S.C. 432, 653 S.E.2d 279 (Ct.App.2007) affirming the trial court's issuance of an order to execute and levy a judgment against Petitioners. Petitioners have submitted a petition for rehearing which we now deny. Also, this opinion is submitted in place of the opinion previously issued in this case.
On December 8, 1994, Petitioners agreed to give The Linda Mc Company, Inc. (Respondent) a judgment by confession as settlement of litigation over unpaid sales commissions. That judgment was entered June 2, 1995,
Sometime after the judgment was entered, Petitioners paid Respondent $55,000. On February 20, 2004, Respondent wrote a letter to Petitioners acknowledging an agreement to waive all post-judgment interest if Respondent received the remaining $55,000 before May 7, 2004. Petitioners paid Respondent $26,750 by check dated May 13, 2004.
On July 29, 2004, Respondent filed a petition for supplemental proceedings alleging that Petitioners possessed assets subject to execution on the judgment. Petitioners issued a check to Respondent in the amount of $28,500 on August 3, 2004. On August 9, 2004, the trial court granted Respondent's petition for supplemental proceedings and referred the matter to a special referee.
On October 1, 2004, the special referee conducted a hearing to determine whether Petitioners had any assets that could satisfy the balance of the judgment. Petitioners filed a motion to dismiss under Rule 12(b)(1), SCRCP, alleging the judgment
On May 24, 2005, the special referee conducted another hearing at which Petitioners argued the February 20, 2004 agreement was modified by a phone message left by Jan Shore (Jan) to Respondent's attorney such that the parties reached an accord and satisfaction. Jan testified that on May 13, 2004 she called and left a message on Respondent's attorney's answering machine stating she intended to split the remainder of the balance into two payments and "that if there was any problem with that to please call me."
On June 3, 2005, the special referee issued his report to the circuit court finding Petitioners owed interest outstanding from the entry of the judgment to date, as well as costs and attorneys' fees, and there had been no accord and satisfaction. On that same day, the circuit court issued an order to execute and levy upon assets owned by Petitioners. Petitioners did not raise the matter of the judgment's expiration in the trial court.
Petitioners appealed to the court of appeals, which held: (1) the absence of an affidavit did not render the judgment void; (2) because Petitioners did not argue that S.C.Code Ann. § 15-39-30 (2005) deprived the judgment of active energy to the trial court, that issue was not preserved for appellate review; (3) there was no accord and satisfaction; and (4) because estoppel was not presented to and ruled upon by the trial court, it was not preserved for appellate review. Linda Mc Company, Inc., 375 S.C. at 437-42, 653 S.E.2d at 281-84.
"The question of subject matter jurisdiction is a question of law." Porter v. Labor Depot, 372 S.C. 560, 567, 643 S.E.2d 96, 100 (Ct.App.2007) (citations omitted). "The issue of interpretation of a statute is a question of law for the court." Jeter v. S.C. Dep't of Transp., 369 S.C. 433, 438, 633 S.E.2d 143, 146 (2006) (citation omitted). An appellate court may decide questions of law with no particular deference to the trial court. In re Campbell, 379 S.C. 593, 599, 666 S.E.2d 908, 911 (2008) (citation omitted).
Petitioners argue Respondent failed to follow the terms of the parties' agreement to fix the amount of the judgment. Thus, its entry was void and the court's actions flowing from that entry are without jurisdiction. We disagree.
S.C.Code Ann. § 15-35-360 (2005) states:
Rule 60(b)(4), SCRCP provides the court may relieve a party or his legal representative from a final judgment, order, or proceeding if the judgment is void. "The definition of `void' under the rule only encompasses judgments from courts which failed to provide proper due process, or judgments from courts which lacked subject matter jurisdiction or personal jurisdiction." McDaniel v. U.S. Fid. & Guar. Co., 324 S.C. 639, 644, 478 S.E.2d 868, 871 (Ct.App.1996) (citations omitted).
Petitioners contend the lack of an affidavit from Respondent setting forth the exact amount due under the judgment renders the judgment void.
Petitioners argue section 15-39-30 deprives the judgment of active energy and execution may not issue thereon because ten years have passed since the entry of the judgment. We disagree.
The court of appeals held this argument was not presented to the trial court and was therefore not preserved for appellate review. Linda Mc Company, Inc., 375 S.C. at 438, 653 S.E.2d at 282. In reaching this conclusion the court of appeals found "our supreme court construes the ten-year time limit on judgments in section 15-39-30 as a statute of limitations." Id. at 440, 653 S.E.2d at 283. Moreover, the court of appeals noted Petitioners had the opportunity to raise the defense in a motion to amend their pleadings or a motion to alter, amend, or vacate and did not do so. Id. at 439, 653 S.E.2d at 282. In reaching this conclusion, the court of appeals relied on LaRosa v. Johnston, 328 S.C. 293, 493 S.E.2d 100 (Ct.App.1997), in which the debtor did assert the statutory defense as it became available by way of a motion to alter. Because the issue was preserved in that case, the court of appeals reversed the court below and held the judgment expired seven days before a master's order was filed compelling payment of LaRosa's judgment. LaRosa, 328 S.C. at 297, 493 S.E.2d at 102. Thus, the judgment expired and could not be enforced. It is clear from the court of appeals' holding in the present case that if Petitioners had filed a motion to alter, amend, and vacate in the trial court, its decision would have favored Petitioners. While the proper interpretation of section 15-39-30 will have no impact on the present case's outcome because Petitioners lost on issue preservation grounds in the court of appeals, it will have an impact on future litigants.
Section 15-39-30 states:
Hardee, 212 S.C. at 16-17, 46 S.E.2d at 183. Therefore, the court of appeals in this case committed error when it found section 15-39-30 is a statute of limitations.
However, the Court in Hardee also stated our state's statutes "clearly evince the legislative purpose to nullify the effective force of a judgment after ten years, unless revived, or suit thereon be brought before the expiration of the period allowed by law." Id. at 14, 46 S.E.2d at 182; see also Hughes v. Slater, 214 S.C. 305, 312, 52 S.E.2d 419, 422 (1949) (indicating filing an action preserves lien even though statutory period expires while the matter is pending). But see Garrison v. Owens, 258 S.C. 442, 446-47, 189 S.E.2d 31, 33 (1972) ("A judgment lien is purely statutory, its duration as fixed by the legislature may not be prolonged by the courts and the bringing of an action to enforce the lien will not preserve it beyond the time fixed by the statute, if such time expires before the action is tried.").
In this case, the judgment was entered June 2, 1995 and the order was issued June 3, 2005. While the order came after the ten-year period, a petition for supplemental proceedings was filed before the ten-year period expired. Therefore, the judgment had active energy on June 3, 2005 because that order was the result of the supplemental proceedings filed during the ten-year period. This result renders the court of appeals application of issue preservation in this case moot.
In conclusion, section 15-39-30 is not a statute of limitations but it does operate similar to one under these factual circumstances. Furthermore, if a party takes action to enforce a judgment within the ten-year statutory period of active energy, the resulting order will be effective even if issued after the ten-year period has expired. Hence, regarding this issue the decision of the court of appeals should be affirmed as modified.
Petitioner contends the court of appeals erred in affirming the special referee's decision that there was no accord and satisfaction. We disagree.
"In an action at law, the appellate court will correct any error of law, but it must affirm the special referee's factual findings unless there is no evidence that reasonably supports those findings." Roberts v. Gaskins, 327 S.C. 478, 483, 486 S.E.2d 771, 773 (Ct.App.1997) (citation omitted). The elements of an accord and satisfaction are (1) an agreement between the parties to settle a dispute and (2) the payment of the consideration which supports the agreement. Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 430, 673 S.E.2d 448, 455 (2009) (citation omitted). Like any contract, in order to constitute an accord and satisfaction, there must have been a meeting of the minds. Id. (citation omitted). "The debtor must intend and make unmistakably
Petitioners argue that due to Jan's phone messages to counsel for Respondent, Respondent was aware of Petitioners' proposal to modify the accord agreement, and by not responding, Respondent accepted that proposal allowing for the remaining payment to be late. The special referee found there was never a meeting of the minds such that an accord and satisfaction occurred. Moreover, the special referee found Petitioners did not comply with the terms of the February 20, 2004 agreement because payment of the outstanding balance came after the date called for in the agreement. The court of appeals correctly affirmed the special referee's decision because there was never a meeting of the minds regarding the alleged modification of the February 20 agreement. It was never unmistakably clear that the late payment and telephone message left to Respondent's attorney modified the agreement. Because there is evidence to support the special referee's finding, the court of appeals correctly affirmed the special referee.
Petitioners argue Respondent should be estopped from denying a modification of the agreement took place. This issue has not been preserved for review.
Petitioners contend Respondent had a duty to respond to Jan's phone message, and by not responding they are now estopped from denying a modification of the agreement. The court of appeals found this argument was neither presented to nor addressed by the trial court and thus not preserved for appellate review. See In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) ("In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court."); Lucas v. Rawl Family Ltd. P'ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004) ("It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon
Petitioners contend the expiration of the judgment renders it and any proceedings supplemental to it moot. We disagree.
"An appellate court will not pass on moot and academic questions or make an adjudication where there remains no actual controversy." Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001) (citation omitted). "Moot appeals differ from unripe appeals in that moot appeals result when intervening events render a case nonjusticiable." Id. (citation omitted). "`A case becomes moot when judgment, if rendered, will have no practical legal effect upon [the] existing controversy. This is true when some event occurs making it impossible for [the] reviewing Court to grant effectual relief.'" Id. at 567-68, 549 S.E.2d at 596 (quoting Mathis v. S.C. State Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973)).
Petitioners argue an actual controversy ceased to exist upon the expiration of the statutory period making the case moot. Even if this Court agreed with Petitioners' interpretation of section 15-39-30, there would still be a dispute regarding issue preservation. Nonetheless, there is an actual controversy between the parties and expiration of the ten-year time limit did nothing to extinguish that controversy or render this Court unable to grant effectual relief.
Petitioners argue the expiration of the judgment deprived the circuit court of jurisdiction to proceed with either the supplemental proceedings or execution. We disagree.
"Subject matter jurisdiction is `the power to hear and determine cases of the general class to which the proceedings in question belong.'" Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) (quoting Bank of Babylon v. Quirk, 192 Conn. 447, 472 A.2d 21, 22 (1984)). The issue of subject matter jurisdiction may be raised at any time including when raised for the first time to an appellate court. See
Even if this Court were to hold that the expiration of the judgment foreclosed Respondent's ability to enforce the judgment, it would not affect the subject matter jurisdiction of the circuit court to hear the dispute. The running of the ten-year period does not influence the power of the circuit court to hear disputes related to section 15-39-30.
Petitioner argues the effect of the court of appeals decision is to establish an unworkable rule of procedure. This issue has not been preserved for review.
An argument not made to an intermediate appellate court and ruled on by that court is not preserved for review in this Court. See City of Columbia v. Ervin, 330 S.C. 516, 519-20, 500 S.E.2d 483, 485 (1998). Because this issue was not presented to the court of appeals, it is not preserved for our review.
For the aforementioned reasons, the decision of the court of appeals is affirmed as modified.
Acting Justices JAMES E. MOORE and JOHN H. WALLER, JR., concur. BEATTY, J., concurring in part, dissenting in part in a separate opinion. PLEICONES, J., dissenting in a separate opinion.
Justice BEATTY.
While I concur in parts I, III, IV, V, VI, and VII of the majority opinion, I disagree with the majority's analysis in part II dealing with the import and interpretation of section 15-39-30. The majority is correct in concluding that section 15-39-30 is not a statute of limitation. In my view, the majority is incorrect in concluding that it operates similar to one under the facts of this case.
Section 15-39-30 is not a statute of limitation, but it is clearly a statute of repose. There is a significant difference between the two. A statute of limitation is an affirmative
Capco of Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 142, 628 S.E.2d 38, 41 (2006) (emphasis added); Harrison v. Bevilacqua, 354 S.C. 129, 138, 580 S.E.2d 109, 113-14 (2003).
This Court has repeatedly stated that a statute of repose is not tolled for any reason. Langley v. Pierce, 313 S.C. 401, 404, 438 S.E.2d 242, 243 (1993); Capco, 368 S.C. at 142, 628 S.E.2d at 41. Therefore, in my view, the majority's reliance on Hardee v. Lynch, 212 S.C. 6, 46 S.E.2d 179 (1948) and Hughes v. Slater, 214 S.C. 305, 52 S.E.2d 419 (1949) is misplaced. Neither case supports extending the life of a judgment after the expiration of the statute of repose. Furthermore, the majority's reference to language in Hardee stating that our state's statutes "clearly evince a legislative purpose to nullify the effective force of a judgment after ten years, unless revived, or suit thereon be brought" is taken out of context. Hardee, 212 S.C. at 14, 46 S.E.2d at 182. Additionally, it ignores the fact that the statutory scheme referred to in Hardee has been repealed and its obsolescence acknowledged by the Hardee court. Id. at 13, 46 S.E.2d at 182. The Hardee court was referring to the way judgments were treated prior to the change in the law. Although the judgment in Hardee was more than ten years old, the applicable law affecting the judgment allowed the judgment to be revived for another ten years if suit was brought. After the expiration of
In reaching its conclusion, the Hardee court referred to its decision in United States Rubber Company v. McManus, 211 S.C. 342, 45 S.E.2d 335 (1947), for an understanding of the effects of Act No. 516 of the Acts of the General Assembly for the year 1946, 44 Statutes at Large, 1436. Hardee, 212 S.C. at 13, 46 S.E.2d at 181. In recognizing that Act 516 radically changed the operation and effect of existing statutes governing judgments, the McManus court stated:
McManus, 211 S.C. at 345-46, 45 S.E.2d at 336.
As noted by the Hardee court, "[t]he logical result of the 1946 enactment, 44 Stats. 1436, was to utterly extinguish a
The Hardee court specifically declined to address the question of what happens when a timely-filed action to enforce a judgment is not concluded prior to the expiration of the ten-year repose period as it was unnecessary to resolve the issue before it. Hardee, 212 S.C. at 13, 46 S.E.2d at 182. But, the Court in Garrison v. Owens, 258 S.C. 442, 189 S.E.2d 31 (1972), squarely confronted the question and concluded that an action to enforce the lien will not preserve it beyond the time by statute if such time expires before the action is tried. Id. at 446-47, 189 S.E.2d at 33 ("A judgment lien is purely statutory, its duration as fixed by the legislature may not be prolonged by the courts and the bringing of an action to enforce the lien will not preserve it beyond the time fixed by the statute, if such time expires before the action is tried."). I believe the Garrison court was correct and, thus, I would uphold its decision. If the law is to be changed, it must be done by the Legislature not the Court.
Justice PLEICONES.
I respectfully dissent, and would vacate the Court of Appeals' opinion and the circuit court's "Order to Execute and Levy" filed June 3, 2005. I concur fully in Justice Beatty's analysis of S.C.Code Ann. § 15-39-30 (2005). Moreover, any question whether a judgment can be enforced more than ten years after it was filed is answered conclusively by S.C.Code Ann. § 15-39-130 (2005). This statute provides that the sheriff's or other officer's authority to levy and execute final process ceases when the judgment's "active energy" ends "as provided by law," i.e. ten years after the original entry of judgment. In fact, an officer who fails to return the process at the first regular term of common pleas after the expiration of the judgment is subject to penalties for neglect of duty. S.C.Code Ann. § 15-39-140 (2005).
Since the judgment cannot be enforced by execution and levy after ten years, it is futile to continue court proceedings after that date. Upon the passage of ten years, the judgment is unenforceable as a matter of law, and all process related to it, whether in the courts or in the hands of the sheriff or other
Since the "Order to Execute and Levy" cannot be performed as the judgment upon which it is predicated has no "active energy," I would vacate both the decision of the Court of Appeals and that order itself.
I respectfully dissent.
