Carmichael v. Oden
| Decision Date | 14 January 2009 |
| Docket Number | 2009-UP-030 |
| Court | South Carolina Court of Appeals |
| Parties | A.E. Carmichael, Jr. d/b/a Lake View Gas Company & Carmichael Farm Supply Co., Respondent, v. Benita Joyce Page Oden, Douglas Lee Page and David Carroll Page, Defendants,/Of whom Benita Joyce Page Oden is the Appellant. |
UNPUBLISHED OPINION
Heard November 5, 2008
Appeal From Dillon County Paul M. Burch, Circuit Court Judge
Marcus LeFond Woodson, of Marion, for Appellant.
A Glenn Greene, Jr., of Dillon and Marian D. Nettles, of Lake City, for Respondent.
Benita[1] Joyce Page Oden appeals the order of the trial court denying her motions for continuance to set aside a default judgment, and to dismiss and to grant foreclosure of a mortgage held by A.E. Carmichael, d/b/a Lake View Gas Company and Carmichael Farm Supply Co. We affirm.
Carmichael stated in his complaint that on October 2, 1986, Oden's father, Jasper Page, Jr., executed and delivered to him a note for the amount of $50,585.05 with the interest rate of 12% per annum secured by a mortgage on a 1.1 acre tract in Dillon County. The principal was to be repaid 10% a year for 10 years. Page transferred the property to Oden before his death on June 16, 2001. Carmichael filed this action to foreclose the mortgage on May 16, 2006, originally naming as defendants Oden and Page or his heirs, personal representatives, successors, assigns, spouses, creditors, and any other claiming a right to the property. Carmichael amended his complaint on July 25, 2006 to name only Oden and her brothers, Douglas Lee Page and David Carroll Page, as defendants.
On July 27, 2006, Carmichael attempted to serve Oden through certified mail, restricted delivery, return receipt at her address in Upper Marlboro, Maryland. He also sent her the documents through regular mail. The certified mail was returned unclaimed, but the regular mail was not returned. Carmichael also attempted service through the Dillon County Sheriff's Department, but the Sheriff's Department was unable to locate her.
On September 15, 2006, Carmichael filed a petition for an order of publication. Attached to the petition was an affidavit of non-service by the sheriff's deputy and an affidavit from Carmichael's attorney detailing the attempts at service. The affidavit of Carmichael's attorney was not notarized. The Dillon County Clerk of Court issued the order for publication that day. The notice appeared in The Dillon Herald on September 19, September 26, and October 3, 2006.
On November 7, 2006, Carmichael filed an affidavit of default. The matter was referred to the Master in Equity, who issued an order of default. Carmichael sent Oden notice of the hearing set for November 20, 2006 to her Maryland address. On November 15, 2006, Oden requested the master recuse himself. The master granted the request and cancelled the hearing which was rescheduled for January 3, 2007. Notice of the hearing was mailed to Oden on December 27, 2006. On January 2, 2007, Oden filed a motion for continuance. In the motion her attorney stated that he had been retained on December 28 2006 and would like to have the opportunity to engage in discovery. Oden also filed motions to set aside entry of default and to dismiss.
At the hearing, the trial court denied Oden's request for a continuance. Although Oden was not allowed to offer her own witnesses, she was able to cross-examine Carmichael, the only witness, and to present evidence of a payment Page made in 1989.
In its written order, the trial court held the action was duly filed and served on Oden. The court found the issue of the statute of limitations did not involve jurisdiction but rather was an affirmative defense which Oden had neither pled nor proved. It granted Oden a credit for $12,990.31 paid in 1989 and calculated the debt with interest compounded annually at 12% to be $253,423.12. In addition, the court added $5,000.00 in attorney's fees and $609.61 in costs and ordered foreclosure for this amount. The court noted that Oden was not personally liable for any deficiency and the judgment was solely against the property. Oden filed a motion to alter or amend the judgment, which the court denied. This appeal followed.
Oden argues the trial court erred in denying her motion for a continuance. Her attorney was retained on December 28, 2006 and the hearing was held on January 3, 2007. Her attorney stated he needed the time to engage in discovery and to file any necessary motions. The trial court believed the request for a continuance was merely a ploy to delay the matter. It noted Oden had already received a continuance of the hearing scheduled November 20, 2006 when the master recused himself at her request by order dated November 16, 2006. Oden did not retain counsel until almost a month and a half later.
The grant or denial of a continuance lies within the sound discretion of the trial court, and its ruling will not be reversed absent a clear showing of abuse of discretion. State v. Tanner, 299 S.C. 459, 462, 385 S.E.2d 832, 834 (1989). "Moreover, the denial of a motion for a continuance on the ground that counsel has not had time to prepare is rarely disturbed on appeal." Plyler v. Burns, 373 S.C. 637, 650, 647 S.E.2d 188, 195 (2007).
We find the trial court did not abuse its discretion in denying the continuance.
Oden argues the trial court erred in denying her motion to set aside the entry of default. She asserts several reasons why the trial court erred in finding the notice by publication was proper.
Under Rule 55(c) of the South Carolina Rules of Civil Procedure, a default may be set aside "for good cause shown." "The decision whether to grant relief from an entry of default is 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).
Oden argues that because Carmichael knew her Maryland address, he should have attempted to have a sheriff in the Maryland county of her residence serve her. Section 15-9-710 of the South Carolina Code provides for service by publication when the person upon whom service is to be made cannot, after due diligence, be found in this state and:
S.C. Code Ann. § 15-9-710 (2005).
This was an action solely for foreclosure of a mortgage on property located in Dillon County, South Carolina. Accordingly, this is the type of case where service by publication is authorized by statute.
Oden also claims publication did not take place in the proper location. Section 15-9-740 of the South Carolina Code provides for the order of publication to direct publication to be made in the newspaper "most likely to give notice to the person to be served . . . ." S.C. Code Ann. § 15-9-740 (2005). Oden asserts the notice should have been published in Upper Marlboro, Maryland. However, when Carmichael attempted to serve her at her address in Maryland through certified mail, the letter was returned unclaimed. The order of publication provides Oden could not be located in Dillon County, South Carolina, or her last known address. As Oden could not be located at her Maryland address, we find it was within the trial court's discretion to find that the newspaper in Dillon County, where it was known Oden owned property, was the one "most likely to give notice" to Oden. Accordingly, we find no error in the trial court's ruling that the notice by publication in Dillon County was proper.
Oden asserts Carmichael did not provide affidavits sufficient to support an order of publication. Section 15-9-710 of the South Carolina Code provides for service by publication:
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 . . . .
S.C. Code Ann. § 15-9-710 (2005).
Thus, in order to obtain an order for service by publication, Carmichael had to establish by affidavit that after searching with due diligence, neither he nor anyone on his behalf was able to locate Oden within this State and that Oden was a proper party to an action relating to real property in this State. "Generally, absent fraud or collusion, once the issuing officer is satisfied with the supporting affidavit, the decision to order service by publication is final unless the order of publication is premised upon a facially defective affidavit." Brown v. Malloy, 345 S.C. 113, 118, 546 S.E.2d 195, 197 (Ct. App. 2001); see Miles v. Lee, 319 S.C. 271, 274, 460 S.E.2d 423, 425 (Ct. App. 1995) ().
Oden argues the trial court...
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