Leopard v. Barbour

• Decision Date: 07 December 2022
• Docket Number: 2022-UP-429,Appellate Case 2021-000269
• Parties: Bobby E. Leopard, Luther Harris, and Donna Harris, Appellants, v. Perry W. Barbour, Respondent.
• Court: Court of Appeals of South Carolina

Bobby E. Leopard, Luther Harris, and Donna Harris, Appellants, v. Perry W. Barbour, Respondent.

No. 2022-UP-429

Appellate Case No. 2021-000269

Court of Appeals of South Carolina

December 7, 2022

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.

Submitted November 1, 2022

Appeal From Cherokee County Letitia H. Verdin, Circuit Court Judge

Donald Loren Smith, of Attorney Office of Donald Smith, of Anderson for Appellants.

David L. Moore, Jr., of Turner Padget Graham & Laney, PA, of Greenville, for Respondent.

PER CURIAM:

Bobby E. Leopard, Luther Harris, and Donna Harris (collectively Appellants) appeal the circuit court's order granting Perry W. Barbour's motions for relief from the entry of default and to dismiss. On appeal Appellants argue the circuit court erred by (1) granting Barbour relief from the entry of default; (2) failing to find Barbour waived his affirmative defenses; and (3) failing to apply the doctrines of equitable estoppel and unclean hands. We affirm.

1. We hold the circuit court did not abuse its discretion in setting aside the entry of default as Barbour provided an explanation for the default and reasons why vacation of the entry of default would serve the ends of justice. See Richardson v. P.V., Inc., 383 S.C. 610, 614, 682 S.E.2d 263, 265 (2009) ("The decision whether to set aside an entry of default or a default judgment lies solely within the sound discretion of the [circuit] court."); id. ("The [circuit] court's decision will not be disturbed on appeal absent a clear showing of an abuse of that discretion."); In re Estate of Weeks, 329 S.C. 251, 259, 495 S.E.2d 454, 459 (Ct. App. 1997) ("An abuse of discretion . . . occurs when the judge 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."); Richardson, 383 S.C. at 616, 682 S.E.2d at 266 ("The standard for granting relief from an entry of default is good cause under Rule 55(c), SCRCP, while the standard is more rigorous for granting relief from a default judgment under Rule 60(b), SCRCP."); Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 607, 681 S.E.2d 885, 888 (2009) (stating the good cause standard "requires a party seeking relief from an entry of default under Rule 55(c) to provide an explanation for the default and give reasons why vacation of the default entry would serve the interests of justice"); id. at 608, 681 S.E.2d at 889 (explaining the Rule 60(b) factors of mistake, inadvertence, surprise, or excusable neglect "are indeed relevant to a Rule 55(c) analysis, but only insomuch as proof of any one of these factors is sufficient to show 'good cause'"); McClurg v. Deaton, 380 S.C. 563, 567-68, 573, 671 S.E.2d 87, 89-90, 92 (Ct. App. 2008) (holding employer and employee met the requirements of surprise or excusable neglect under Rule 60(b)(1) when the plaintiffs had negotiated with the employer and employee's insurer, sent the insurer a draft complaint naming the employer and employee as defendants, and stated they would send insurer a copy of the complaint, but brought suit against only the employee, who had left his employment with employer, and the insurer was not aware that the action was filed until after the plaintiffs received a default judgment), aff'd, 395 S.C. 85, 716 S.E.2d 887 (2011). In addition, we hold Barbour timely moved for relief upon receiving notice of the entry of default, he presented meritorious defenses in his proposed answer, and Appellants were not prejudiced by Barbour's delay in answering the complaint. See Sundown, 383 S.C. at 607-08, 681 S.E.2d at 888 ("Once a party has put forth a satisfactory explanation for the default, the [circuit] 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."); McClurg, 380 S.C. at 575, 671 S.E.2d at 93-94 ("To establish that he has a meritorious defense, a complainant need not show that he would prevail on the merits, but only that his defense is meritorious.").

2. We hold the circuit court did not err in considering Barbour's affirmative defenses in granting his motion to dismiss. After granting Barbour's motion for relief from the entry of default, the circuit court ordered Barbour's answer, in which he pled the affirmative defenses, to be entered. See Thynes v. Lloyd, 294 S.C. 152, 154, 363 S.E.2d 122, 123 (Ct. App. 1987) (noting that a ruling extending the time for the defendant to answer would necessarily require granting him relief from the entry of default).

3. We hold Barbour was not estopped from asserting the statute of limitations as a defense because Appellants failed to identify any words or conduct from Barbour that induced them to delay in filing the Cherokee County action. See Kleckley v. Nw. Nat'l Cas. Co., 338 S.C. 131, 136 526 S.E.2d 218, 220 (2000) ("[A] defendant...