Caldwell v. Wiquist

• Citation: 741 S.E.2d 583,402 S.C. 565
• Decision Date: 27 March 2013
• Docket Number: No. 5105.,5105.
• Court: South Carolina Court of Appeals
• Parties: Jessica CALDWELL, Respondent, v. Amy WIQUIST, Appellant. Brian Caldwell, Respondent, v. Amy Wiquist, Appellant. Appellate Case No. 2012–207208.

402 S.C. 565
741 S.E.2d 583

Jessica CALDWELL, Respondent,
v.
Amy WIQUIST, Appellant.
Brian Caldwell, Respondent,
v.
Amy Wiquist, Appellant.
Appellate Case No. 2012–207208.

No. 5105.

Court of Appeals of South Carolina.

Heard Jan. 17, 2013.
Decided March 27, 2013.

[741 S.E.2d 585]

W. Toland Sams, of Sams & Sams, P.A., of Beaufort, for Appellant.

Colden R. Battey Jr., of Harvey & Battey, P.A., of Beaufort, for Respondents.

PIEPER, J.

[402 S.C. 568]This appeal arises out of personal injury claims resulting from a car accident. On appeal, Appellant Amy Wiquist argues that the trial court erred in denying her motions to set aside default judgment because: (1) the affidavits failed to comply with statutory requirements; (2) service by publication violated Wiquist's due process rights; (3) evidence of fraud or collusion existed; (4) the Yates v. Gridley, 16 S.C. 496 (1882), line of cases should be overruled; and (5) the orders of service by publication did not comply with section 15–9–740 of the South Carolina Code (2005). We reverse and remand.

FACTS

Respondents Jessica Caldwell and Brian Caldwell were in an automobile accident that they allege was caused by Wiquist's negligent operation of her vehicle. While their vehicle was stopped in traffic, it was struck by the vehicle operated by Wiquist. Prior to filing suit, the Caldwells engaged in settlement negotiations with Wiquist's insurance company, GEICO. The Caldwells filed individual complaints alleging personal injuries and requesting punitive damages and provided copies of the complaints to GEICO. The Caldwells delivered the filed civil action coversheets, summonses, and complaints to the Beaufort County Sheriff's Department (BCSD) for service upon Wiquist. The BCSD executed affidavits of non-service stating that it had been unable to complete service on Wiquist at her last known address that was listed on the traffic collision report, providing the explanation: “ADDRESS VACANT.” The Caldwells did not attempt to serve Wiquist with the summonses and complaints by mail directed to the address for Wiquist that was listed on the traffic collision report.

The Caldwells filed affidavits requesting service by publication. The Clerk of Court for Beaufort County entered orders of service by publication. The Caldwells filed affidavits stating that notice of the actions had been published in The Island Packet and The Beaufort Gazette. The Caldwells filed affidavits of default and moved for default judgments. On September 22, 2011, the court scheduled default hearings for October 3, 2011, and the Caldwells mailed notice of the hearings to Wiquist's last known address as listed on the traffic collision report. Wiquist did not appear at the default hearings. By [402 S.C. 569]virtue of an order entered on October 4, 2011, the trial court awarded to Jessica Caldwell $15,000 in actual damages and $5,000 in punitive damages. By virtue of an order entered on October 4, 2011, the trial court awarded to Brian Caldwell $85,000 in actual damages and $15,000 in punitive damages.

Wiquist received notice of the default hearings on October 4, 2011, after the mailed notice of the hearings was forwarded to her then-current address by the United States Postal Service. Upon receipt of the notice, Wiquist's counsel contacted the Caldwells' counsel to inform him of Wiquist's representation and to request copies of the default judgments. Wiquist moved to set aside the default judgments, and the court entered orders denying the motions. Wiquist did not file Rule 59(e), SCRCP motions to alter or amend the judgments. The cases have been consolidated for purposes of appeal.

STANDARD OF REVIEW

“The power to set aside a default judgment is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion.” Melton v. Olenik, 379 S.C. 45, 50, 664 S.E.2d 487, 489–90 (Ct.App.2008). “An abuse of discretion arises when the court issuing the order was controlled by an error of law or when the order, based upon factual conclusions, is without evidentiary support.” Id. at 50, 664 S.E.2d at 490.

LAW/ANALYSIS

Wiquist alleges that the orders of service by publication did not comply with section 15–9–740. Where a party contests the validity of an order of publication based on a lack of diligence in attempting to locate

[741 S.E.2d 586]

the party, this court has held that the trial court is “without authority to overrule the finding of the clerk of court.” Montgomery v. Mullins, 325 S.C. 500, 505–06, 480 S.E.2d 467, 470 (Ct.App.1997). “[I]n the absence of fraud or collusion, the decision of the officer ordering service by publication is final.” Id. at 506, 480 S.E.2d at 470.

However, Wiquist argues the affidavits requesting service by publication failed to comply with statutory requirements. [402 S.C. 570]Wiquist also argues her case is distinct from Yates,¹Montgomery, and Wachovia Bank of S.C., N.A. v. Player, 341 S.C. 424, 535 S.E.2d 128 (2000), because those cases involved affidavits that “included at least some facts concerning efforts to locate the defendant.” We agree.

Initially, we note that Wiquist asserts that the Yates line of cases should be overruled. This court has “no authority to overrule Supreme Court precedent.” Blyth v. Marcus, 322 S.C. 150, 155 n. 1, 470 S.E.2d 389, 392 n. 1 (Ct.App.1996). Thus, we decline to address Wiquist's argument that the Yates line of cases should be overruled.

Moreover, this case can be distinguished from Yates, Montgomery, and Wachovia Bank.Section 15–9–710 of the South Carolina Code (2005) addresses the conditions permitting service by publication and provides, in pertinent part:

When the person on whom the service of the summons is to be made cannot, after due diligence, be found within the State and (a) that fact appears by affidavit to the satisfaction of the court or judge thereof, the clerk of the court of common pleas, the master, or the probate judge of the county in which the cause is pending and (b) it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made or that he is a proper party to an action relating to real property in this State, the court, judge, clerk, master, or judge of probate may grant an order that the service be made by the publication of the summons in any one or more of the following cases: ...

(3) when the defendant is a resident of this State and after a diligent search cannot be found; ....

In Yates, the affidavit requesting service by publication provided, in pertinent part: “[T]he above defendants, are non-residents of this [State], but are residents of the State of New York, and ... their post-office is unknown to deponent, and cannot be ascertained, notwithstanding due diligence has been employed, nor can they be found in this State after due search for them.” 16 S.C. at 498–99.

[402 S.C. 571]Similarly, the Montgomery court discussed the plaintiff's “petition ... for an order of publication alleging that he had been unable to locate the [defendants] after due diligence and requesting that he be allowed to serve them by publication.” 325 S.C. at 503, 480 S.E.2d at 468–69. However, instead of determining the sufficiency of the claims of due diligence listed in the petition requesting service by publication, the Montgomery court affirmed the trial court's dismissal of the plaintiff's suit because the plaintiff did not effectuate service by publication within a reasonable time after the order of publication was filed. Id. at 506, 480 S.E.2d at 470.

More recently, the Wachovia Bank court affirmed the master's refusal to set aside service of process despite the fact that the petition requesting service by publication contained an untrue statement that the “Sheriff for Georgetown County did attempt service upon said defendant” when, in fact, “service was only attempted by a private process server.” 341 S.C. at 428, 535 S.E.2d at 130 (internal quotations omitted). Our supreme court reviewed the petition requesting service by publication and affidavit of non-service together, finding: “It is clear from reading the two documents together that the petition is inaccurate, but that the process server's affidavit reflects due diligence by her.” Id.

Contrary to the affidavits in Yates, Montgomery, and Wachovia Bank, Wiquist asserts

[741 S.E.2d 587]

the affidavits requesting service by publication in the instant matter are facially defective. Here, the Caldwells' affidavits requesting service by publication provide, in pertinent part: “The Defendant who is a non-resident of Beaufort County, South Carolina, cannot be served a copy of the Summons in Beaufort County, and it is necessary and proper to serve her by publication.” Section 15–9–710 permits service by publication when a defendant cannot be found within the State, but the Caldwells' affidavits requesting service by publication only...