Truslow v. Bretzinger ( 2020 )

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
Neal Truslow, Respondent,
v.
Stephen Bretzinger, Lindsey Holsinger, and Rikard &
Protopapas, Defendants,
Of whom Stephen Bretzinger and Lindsey Holsinger are
the Appellants.
Appellate Case No. 2017-002469
Appeal From Richland County
Alison Renee Lee, Circuit Court Judge
Unpublished Opinion No. 2020-UP-325
Heard June 23, 2020 – Filed December 2, 2020
AFFIRMED
Alexandre Nicolas MacClenahan, of The MacClenahan
Law Firm, LLC, of Greenville, for Appellants.
Desa Ballard and Harvey M. Watson, III, both of Ballard
& Watson, Attorneys at Law, of West Columbia, for
Respondent.
PER CURIAM: Stephen Bretzinger and Lindsey Holsinger (collectively,
Appellants) appeal the circuit court's failure to set aside the entry of default and
default judgment awarded to Neil Truslow in his action against them for breach of
contract. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:
1. As to whether the circuit court erred by failing to rule on Appellants' motion to
set aside the entry of default or alternatively, erred in denying their motion to
alter/amend when they showed good cause: Roberson v. S. Fin. of S.C., Inc., 365
S.C. 6, 9, 615 S.E.2d 112, 114 (2005) ("The decision whether to set aside an entry
of default . . . lies solely within the sound discretion of the trial [court]."); Wham v.
Shearson Lehman Bros., 298 S.C. 462, 465, 381 S.E.2d 499, 501 (Ct. App. 1989)
("An order based on an exercise of that discretion, however, will be set aside if it is
controlled by some error of law or lacks evidentiary support."); Williams v.
Vanvolkenburg, 312 S.C. 373, 375, 440 S.E.2d 408, 409 (Ct. App. 1994) ("A court
may set aside an entry of default for good cause shown."); Sundown Operating Co.
v. Intedge Indus., Inc., 383 S.C. 601, 607-08, 681 S.E.2d 885, 888 (2009) ("This
standard requires a party seeking relief from an entry of default under Rule 55(c)[,
SCRCP,] to provide an explanation for the default and give reasons why vacation
of the default entry would serve the interests of justice. Once a party has put forth
a satisfactory explanation for the default, the trial court must also consider: (1) the
timing of the motion for relief; (2) whether the defendant has a meritorious
defense; and (3) the degree of prejudice to the plaintiff if relief is granted.");
Williams, 312 S.C. at 375, 440 S.E.2d at 409 ("The issue before this [c]ourt,
therefore, is not whether we believe good cause existed to set aside the default, but
rather, whether the master's determination is supportable by the evidence and not
controlled by an error of law.").
2. As to whether the circuit court erred in denying Appellants' motion to set aside
default judgment when they satisfied the requirements of Rule 60(b)(1), SCRCP:
Fassett v. Evans, 364 S.C. 42, 49, 610 S.E.2d 841, 845 (Ct. App. 2005) ("[T]he
power to set aside a default judgment is addressed to the sound discretion of the
trial court whose decision will not be disturbed on appeal absent a clear showing of
an abuse of that discretion."); Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 17, 594
S.E.2d 478, 482 (2004) (stating the decision to deny a Rule 60(b) motion is within
the trial court's sound discretion); Roberson, 365 S.C. at 9, 615 S.E.2d at 114 ("An
abuse of discretion in setting aside a default judgment occurs when the [court]
issuing the order was controlled by some error of law or when the order, based
upon factual, as distinguished from legal conclusions, is without evidentiary
support." (quoting In re Estate of Weeks, 329 S.C. 251, 259, 495 S.E.2d 454, 459
(Ct. App. 1997))); Rule 55(c), SCRCP ("For good cause shown the court may set
aside an entry of default and, if a judgment by default has been entered, may
likewise set it aside in accordance with Rule 60(b)."); Rule 60(b)(1), SCRCP ("On
motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect . . . ."); Sundown Operating Co., 383
S.C. at 608, 681 S.E.2d at 888 ("Once a default judgment has been entered, a party
seeking to be relieved must do so under Rule 60(b), SCRCP."); id. at 607, 681
S.E.2d at 888 ("The standard for granting relief from a default judgment under
Rule 60(b) is more rigorous than the 'good cause' standard established in Rule
55(c)."); ITC Commercial Funding, LLC v. Crerar, 393 S.C. 487, 494, 713 S.E.2d
335, 339 (Ct. App. 2011) ("[R]elief from default judgment under Rule 60(b),
SCRCP, 'requires a more particularized showing of mistake, inadvertence,
excusable neglect, surprise, newly discovered evidence, fraud, misrepresentation,
or other misconduct of an adverse party.'" (quoting Sundown Operating Co., 383
S.C. at 608, 681 S.E.2d at 888)); Mictronics, Inc. v. S.C. Dep't of Revenue, 345
S.C. 506, 510-11, 548 S.E.2d 223, 226 (Ct. App. 2001) ("In determining whether
to grant a motion under Rule 60(b), the trial [court] should consider: (1) the
promptness with which relief is sought, (2) the reasons for the failure to act
promptly, (3) the existence of a meritorious defense, and (4) the prejudice to
the other party."); Sundown Operating Co., 383 S.C. at 608, 681 S.E.2d at 888-89("The different standards under the two rules underscore the clear intent to make it
more difficult for a party to avoid a default once the court has entered a judgment,
which carries greater finality, and often occurs later than, a clerk's entry of
default."); Columbia Pools, Inc. v. Galvin, 288 S.C. 59, 61, 339 S.E.2d 524, 525
(Ct. App. 1986) ("[W]here there is a good faith mistake of fact, and, no attempt to
thwart the judicial system, there is basis [to vacate a default judgment].").
3. As to whether the circuit court erred in denying the motion to set aside the
default judgment when Truslow failed to conduct the required Rule 55(b)(4),
SCRCP, examination under oath before obtaining a default judgment against a
defendant served via publication: Rule 55(b)(4), SCRCP ("In actions for the
recovery of money only, when the summons has been served by publication and
the defendant is a non-resident of the State, no default judgment shall be rendered
unless the plaintiff or his agent at or before the time of making the application for
judgment shall have been examined on oath respecting any payments that have
been made to the plaintiff or any one for his use on account of the demand
mentioned in the complaint, and shall show by affidavit that an attachment has
been issued in the action and levied upon property belonging to the defendant,
which affidavit shall contain a specific description of such property, and a
statement of its value and shall be filed with proof of publication. Before judgment
is rendered the plaintiff shall, unless the court in its discretion dispenses with the
same, cause to be filed an undertaking in such amount as shall be ordered by the
court with security to be approved by the court or the clerk thereof, that the
plaintiff will abide the order of the court touching the restitution of any estate or
effects which may be directed by such judgment to be transferred or delivered, or
the restitution of any money that may be collected under, or by virtue of, such
judgment, in event the defendant or his representative shall apply and be admitted
to defend the action and shall succeed in such defense."); Ex parte Wilson, 367
S.C. 7, 15, 625 S.E.2d 205, 209 (2005) ("In interpreting the meaning of the South
Carolina Rules of Civil Procedure, the [c]ourt applies the same rules of
construction used to interpret statutes. If a rule's language is plain, unambiguous,
and conveys a clear meaning, interpretation is unnecessary and the stated meaning
should be enforced." (citation omitted)); Eagle Container Co. v. County of
Newberry, 379 S.C. 564, 570, 666 S.E.2d 892, 896 (2008) ("The language must
also be read in a sense [that] harmonizes with its subject matter and accords with
its general purpose." (quoting Hitachi Data Sys. Corp. v. Leatherman, 309 S.C.
174, 178, 420 S.E.2d 843, 846 (1992))); Town of Mt. Pleasant v. Roberts, 393 S.C.
332, 342, 713 S.E.2d 278, 283 (2011) ("[A] court should not focus on any single
section or provision but should consider the language of the statute as a whole."
(quoting Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476
S.E.2d 690, 692 (1996))); CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 74,
716 S.E.2d 877, 881 (2011) ("[T]he statute must be read as a whole and sections
[that] are part of the same general statutory law must be construed together and
each one given effect." (quoting S.C. State Ports Auth. v. Jasper County, 368 S.C.
388, 398, 629 S.E.2d 624, 629 (2006))); Ex parte Wilson, 367 S.C. at 15, 625
S.E.2d at 209 ("The Rules of Civil Procedure 'shall be construed to secure the just,
speedy, and inexpensive determination of every action.'" (quoting Rule 1,
SCRCP)).
4. As to whether Appellants were not properly served via publication when South
Carolina requires strict compliance with publication statutes because the order did
not require Truslow to mail a copy of the summons and complaint to Appellants'
last known address and Truslow failed to do so: McClurg v. Deaton, 380 S.C. 563,
579-80, 671 S.E.2d 87, 96 (Ct. App. 2008) (finding an argument unpreserved when
an appellant first raised the argument in his motion to reconsider, noting the
appellant "clearly could have raised the matter in his motion to set aside the default
judgment but failed to do so"); aff'd, 395 S.C. 85, 716 S.E.2d 887 (2011); Kiawah
Prop. Owners Grp. v. Pub. Serv. Comm'n, 359 S.C. 105, 113, 597 S.E.2d 145, 149
(2004) ("[A] party may not raise an issue in a motion to reconsider, alter[,] or
amend a judgment that could have been presented prior to the judgment.").
AFFIRMED.
WILLIAMS, KONDUROS, and HILL, JJ., concur.