DRV Fontaine, LLC v. Fontaine Bus. Park, LLC

PER CURIAM

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. Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

Brent B. Young and Mark A. Fulks, both of Baker Donelson Bearman Caldwell & Berkowitz, PC, of Johnson City, TN, for Appellant Fontaine Business Park, LLC. Tucker S. Player, of Player Law Firm, LLC, of Columbia, for Appellants Fontaine Business Park 2-31, LLC. Robert L. Widener and Paul D. Harrill, both of McNair Law Firm, PA, of Columbia, for Respondent. PER CURIAM : Fontaine Business Park, LLC and Fontaine Business Park 2-31, LLC (collectively, Fontaine Business Park) appeal the circuit court's order granting DRV Fontaine, LLC's (DRV's) motion to strike Fontaine Business Park's jury trial demand and referring this case to the master-in-equity, arguing (1) the circuit court erred in finding jury trial waivers contained in the loan documents applied to the counterclaims asserted in their answers and (2) the circuit court's order is invalid because it constituted a reversal of another circuit court judge's order. We affirm. 1. We find the circuit court properly granted DRV's motion to strike Fontaine Business Park's jury trial demand. See Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d 472, 475 (1997) ("A mortgage foreclosure is an action in equity."); Wachovia Bank, Nat'l Ass'n v. Blackburn, 407 S.C. 321, 330, 755 S.E.2d 437, 441 (2014) ("If the complaint is equitable and the counterclaim is legal and permissive, the defendant waives his right to a jury trial."); id. at 330, 755 S.E.2d at 441-42 ("If the complaint is equitable and the counterclaim is legal and compulsory, the plaintiff or the defendant has a right to a jury trial on the counterclaim unless a valid jury trial waiver exists that encompasses the counterclaim."); Beach Co. v. Twillman, Ltd., 351 S.C. 56, 63, 566 S.E.2d 863, 866 (Ct. App. 2002) ("A party may waive the right to a jury trial by contract."); id. at 64, 566 S.E.2d at 866 ("Such a waiver must be strictly construed [because] the right to trial by jury is a substantial right."); id. ("However, terms in a contract provision must be construed using their plain, ordinary and popular meaning."). Further, we find Fontaine Business Park's argument that DRV should be equitably estopped from enforcing the jury trial waivers is unpreserved. See Chastain v. Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) ("When an issue is raised to but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e)[, SCRCP] motion."); Cowburn v. Leventis, 366 S.C. 20, 41, 619 S.E.2d 437, 449 (Ct. App. 2005) ("When a trial court makes a general ruling on an issue, but does not address the specific argument raised by a party, that party must make a Rule 59(e) motion asking the trial court to rule on the issue in order to preserve it for appeal."). 2. We find the second issue is unpreserved. See Harris v. Bennett, 332 S.C. 238, 245, 503 S.E.2d 782, 786 (Ct. App. 1998) ("As a general rule, an issue may not be raised for the first time on appeal, but must have been raised to and ruled upon by the court below to be preserved for appellate review."). AFFIRMED. HUFF, WILLIAMS, and THOMAS, JJ., concur.