Oldcastle APG S., Inc. v. Albert, Appellate Case No. 2017-002183

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Parties: Oldcastle APG South, Inc., d/b/a Adams Products Company, and Oldcastle APG Northeast, Inc., d/b/a Foster-Southeastern, Respondents, v. Daniel B. Albert, Appellant.
• Decision Date: 13 January 2021
• Docket Number: Appellate Case No. 2017-002183,Unpublished Opinion No. 2021-UP-006

Oldcastle APG South, Inc., d/b/a Adams Products Company, and Oldcastle APG Northeast, Inc.,
d/b/a Foster-Southeastern, Respondents,
v.
Daniel B. Albert, Appellant.

Appellate Case No. 2017-002183
Unpublished Opinion No. 2021-UP-006

STATE OF SOUTH CAROLINA In The Court of Appeals

Submitted November 1, 2020
January 13, 2021

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.

Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge

AFFIRMED

Daniel B. Albert, of Greenville, pro se.

Elizabeth McDaniel McMillan, of McAngus Goudelock & Courie, LLC, of Greenville, and Helen F. Hiser, of McAngus Goudelock & Courie, LLC, of Mount Pleasant, both for Respondents.

PER CURIAM: Daniel B. Albert appeals the circuit court's order denying his Rule 60(b), SCRCP, motion involving Oldcastle APG South, Inc. and Oldcastle

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APG Northeast, Inc. (collectively, Oldcastle); a confession of judgment; and a settlement agreement. On appeal, Albert raises eight issues,¹ arguing the circuit court erred by denying his motion and should have granted relief pursuant to Rule 60(b)(3) and (b)(4). We affirm.²

1. The circuit court did not abuse its discretion by denying Albert's motion pursuant to Rule 60(b)(3) because Albert failed to demonstrate that Oldcastle committed fraud, misrepresentation, or misconduct. See BB & T v. Taylor, 369 S.C. 548, 551, 633 S.E.2d 501, 502 (2006) ("Whether to grant or deny a motion under Rule 60(b) lies within the sound discretion of the [circuit court]."); id. at 551, 633 S.E.2d at 502-03 ("Our standard of review, therefore, is limited to determining whether there was an abuse of discretion. An abuse of discretion arises where the [circuit court] issuing the order was controlled by an error of law or where the order is based on factual conclusions that are without evidentiary support."); Rule 60(b)(3), SCRCP (providing that "[o]n motion and upon such terms as are just, the [circuit] court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . fraud, misrepresentation, or other misconduct of an adverse party"); Gainey v. Gainey, 382 S.C. 414, 427, 675 S.E.2d 792, 799 (Ct. App. 2009) ("When a party asserts grounds for relief because of fraud, misrepresentation, or other misconduct of an adverse party under Rule 60(b)(3), SCRCP, the movant must prove her entitlement by clear and convincing

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evidence."); id. at 425, 675 S.E.2d at 798 ("In South Carolina, extrinsic fraud is the only type of fraud for which relief may be granted under Rule 60(b)(3), SCRCP."). Albert relies upon two instances of conduct that he asserts entitle him to relief. First, during arguments on his Rule 60(b) motion, Oldcastle stated "no lawyer [wa]s [going to] file a stipulation of dismissal . . . until [they] kn[e]w that [Albert was going to] satisfy the judgment." This argument is without merit because this statement was made when Albert was present and this statement would not entitle Albert to relief from the underlying confession of judgment and settlement agreement. See generally Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 21, 594 S.E.2d 478, 484 (2004) ("[A] party may not prevail on a Rule 60(b)(3) motion on the basis of fraud where he or she has access to disputed information or has knowledge of inaccuracies in an opponent's representations at the time of the alleged misconduct." (quoting Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29 (1st Cir. 1988))). Second, Albert relies upon emails from Oldcastle that he contends caused him to enter the confession of...