Melton v. Olenik, 4418.
| Decision Date | 20 June 2008 |
| Docket Number | No. 4418.,4418. |
| Citation | 379 S.C. 45,664 S.E.2d 487 |
| Court | South Carolina Court of Appeals |
| Parties | Yoko Kim MELTON, Respondent, v. Chong OLENIK a/k/a Chong Son Kim, Appellant. |
David Christopher Shea and Rebecca Guental Fulmer, both of Columbia, for Appellant.
Stephen D. Schusterman, of Rock Hill, for Respondent.
Chong Son Kim (Kim) appeals the circuit court's order denying her motion to set aside entry of default and denying relief from default judgment. We reverse in part and remand for further proceedings.
Yoko Kim Melton (Melton) and Kim entered into an agreement in which Melton would purchase a one-half interest in Kim's massage therapy business, "Our Place."1 The agreement, signed by both parties on January 9, 2002, indicates a purchase price of $30,000, due in full within one year of the date of the agreement.2 Melton was to work in the business and learn the operations for one year at which point Kim would turn over the one-half interest to Melton.3 However, at the end of the year, Kim did not turn over the one-half interest to Melton.
Melton filed a summons and complaint and served Kim on November 30, 2005. Kim failed to answer.4 On March 1, 2006, Melton filed a motion seeking entry of default and a default judgment in the amount of $50,000. Default was entered against Kim on June 6, 2006, but the court continued the damages hearing, expressing concern that Kim had not been properly served with notice of the hearing. A damages hearing was scheduled for July 19, 2006, and Kim was served notice of the damages hearing. Kim filed a motion to set aside default and, with Melton's consent, the damages hearing was continued. Kim moved to set aside default for good cause, inadvertence, and excusable neglect on the grounds that: (a) she had only recently become aware of the suit against her and no hearing on damages had been held; (b) she had a meritorious defense; and (c) there would be no prejudice to Melton.
A hearing on Kim's motion was held on November 13, 2006. The court denied the motion to set aside the entry of default and immediately proceeded to hear Melton's testimony in support of her motion for default judgment. Melton and Kim are Korean and they both have a limited proficiency in the English language. As such, Melton requested the use of an interpreter she brought with her to the hearing. Kim objected to the use of that particular interpreter and requested the use of a joint court interpreter.5 The court performed a voir dire of the interpreter to determine her experience. After the voir dire, the court asked if there was any objection. Kim objected to the interpreter and requested a South Carolina court certified interpreter. The court commenced the hearing without any interpreter.
On the basis of Melton's testimony, the court found Melton was entitled to a default judgment in the amount of $50,000. Kim filed a Rule 59(e) motion, arguing default should be set aside, or in the alternative, the default judgment should be vacated and she should be granted a new hearing on damages with a qualified interpreter. The court summarily denied the motion. This appeal follows.6
Kim argues the circuit court erred in denying relief from the default judgment. We agree.
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. Mitchell Supply Co., Inc. v. Gaffney, 297 S.C. 160, 162-63, 375 S.E.2d 321, 322-23 (Ct.App.1988). 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. Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 402, 368 S.E.2d 687, 689 (Ct.App.1988).
In the present case, Kim asserts the court erred in denying the motion to set aside the default judgment on the grounds that: (1) the evidence presented of Kim's inadvertence and excusable neglect justified relief under Rule 60(b)(1), SCRCP; (2) the court relied upon incompetent parol evidence and the court's subsequent award of damages is without evidentiary support and was controlled by an error of law; and (3) the court's refusal to accommodate her request for a qualified court interpreter violated statutory law and deprived her of equal access to justice and to the court proceedings.
We first address the issue on appeal as to the request for an interpreter. Pursuant to Section 15-27-155(A) of the South Carolina Code (2005):
[W]henever a party or witness to a civil legal proceeding does not sufficiently speak the English language to testify, the court may appoint a qualified interpreter to interpret the proceedings and the testimony of the party or witness. However, the court may waive the use of a qualified interpreter if the court finds that it is not necessary for the fulfillment of justice. The court must first make a finding on the record that the waiver of a qualified interpreter is in the best interest of the party or witness and that this action is in the best interest of justice.
(Emphasis added). In this case, both parties have limited English proficiency and expressed concern with a possible language barrier before the hearing. When Kim objected to the use of the interpreter Melton brought to the hearing, Melton agreed to an alternate qualified court interpreter. The court performed a voir dire of the interpreter to determine her experience and abilities, after which Kim renewed the objection to the use of that particular interpreter. Kim requested a South Carolina qualified court interpreter but the court refused that request. Rather than proceeding with the interpreter Melton provided, the court held the damages hearing without the use of any interpreter. Before proceeding to the hearing, the court failed to make any findings under the statute that waiver of the use of a qualified interpreter was in the best interest of the party, or witness, or that it was in the best interest of justice. We find the court's decision to proceed without the use of a qualified interpreter without making any findings on the record that it was in the best interest of the party, witness, or justice was legal error.
Further, we find proceeding without the use of an interpreter prejudiced Kim. At the hearing, Melton attempted to explain the transaction and exchange of money. However, the testimony is confusing and at times incoherent, such that both attorneys and the judge often sought further clarification of Melton's statements. For example:
Q. (Melton's Attorney) You gave her $50,000?
A. (Melton): Yes
Q. Okay. And what were you supposed to get for that 50,000? What were you getting?
A. She go—she go sign the $30,000 contract promissory, and she gave me two check, two checks. One each check is $25, $25 a total of $50,000. She gave me check.
Q. Okay. Why did she give you two checks for $25,000 if you paid her 50,000?
A. Because we help a partner asked—she wanted $50,000. Then I'm thinking $50,000, she going to promise a contract. But she go lawyer office. She say $30,000. Why? I ask you, why $30,000? I don't trust her. That's why I want your check. Give it to me. Any time you don't give me help, partner, I want my money back.
Q. Okay. So that was in case you didn't get your half, if she didn't let you have your half?
A. She don't give it to me. She no money back, too.
Q. How did you give her the $50,000?
A. She — I give her money. She give me check, two checks. Mh-hmm (affirmative)
Q. Okay.
THE COURT: I don't think she understood the question.
Q. Okay.
THE COURT: Because I have the same question.
...
Q. You paid her $50,000?
A. Yes, sir.
Q. How did you give her the money? Was it in cash? Or was it a check? How did you give it to her?
A. Oh. I got something in the — the bank check and cash it, too. But she want, everything wanted cash. That's why I don't trust her, is I go to a lawyer office. It's a notarizer and helping making sure. That's why I want two checks, 25,000, 25,000, two checks. I needed this. Then she gave it to me.
At the close of Melton's direct examination her attorney states,
The following testimony was elicited during cross-examination of Melton:
Q. (Kim's Attorney) Yeah. What proof do you have that you gave her $50,000?
A. (Melton) They have a — it's a — I have a contract promise to pay her for that.
Q. Where is that?
A. Where is that? Okay. And two checks. And there is — one of them is $30,000. One year. It's a contract promise. And I give her 50,000. That's why, you know, she don't — she give — she — she a liar. So I don't trust her. I need the two check, $50,000. Mm-hmm (affirmative).
Q. You gave her a check for $50,000?
A. (Shakes head negatively).
Q. Did you give her cash?
A. No. She give me two check. Mmhmm (affirmative).
The following testimony was further elicited:
Q. (Kim's Attorney) Okay. Well, ma'am, it goes back to my original question of, do you have any proof whatsoever that you actually gave her $50,000?
A. Because she wanted to have to share $50,000. Mm-hmm (affirmative).
THE COURT: Ma'am, let me — did you give her $50,000?
A. Yes, sir.
THE COURT: Cash?
A. She wanted cash. But it's a-everything had to prove money. Mm-hmm (affirmative).
THE COURT: Did you give her cash?
A. Yes. She wanted cash.
THE COURT: You gave her cash?
A. Yes.
Q. (Kim's Attorney) Ma'am, do you have any sort of withdrawal slip from your bank showing that you took out $50,000?
A. But I don't give her $50,000. She don't sign anything. She don't give me check.
...
Q. Do you have any way to prove that you gave her $50,000 in cash?
A. Yes, sir.
Q. What is that proof?
A. I have to...
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