Renney v. Dobbs House, Inc., No. 21367

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM; LEWIS; HARWELL
• Citation: 274 S.E.2d 290,275 S.C. 562
• Parties: Mark T. RENNEY, Appellant, v. DOBBS HOUSE, INC., Respondent.
• Docket Number: No. 21367
• Decision Date: 08 January 1981

Page 290

274 S.E.2d 290 275 S.C. 562 Mark T. RENNEY, Appellant,
v.
DOBBS HOUSE, INC., Respondent. No. 21367. Supreme Court of South Carolina. Jan. 8, 1981.

Page 291

[275 S.C. 563] Ronald Motley, Blatt & Fales, Barnwell, Walter Summer, Law Office of John Bolt Culbertson, Rock Hill, for appellant.

William M. Grant, Jr., Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

[275 S.C. 564] PER CURIAM:

Appellant Mark T. Renney, appeals from an order vacating a default judgment against respondent, Dobbs House, Inc. We reverse and remand.

On August 10, 1979, appellant served a summons and complaint on respondent by leaving a copy with John W. Elford, assistant manager of a restaurant owned and operated by respondent. The assistant manager delivered the pleadings to the city manager the following day, who by his own admission, took no action with regard to the papers until he gave them to the area manager on September 6, 1979.

Appellant moved for and was granted a default judgment for $200,000.00 on September 7, 1979.

Respondent subsequently moved to vacate the judgment under § 15-27-130, 1976 S.C.Code of Laws. The trial court vacated the judgment based upon the circumstances surrounding service of the summons and complaint.

Appellant asserts the trial court erred in holding respondent's failure to timely answer resulted from mistake, inadvertence, surprise or excusable neglect. We agree.

The lower court's determination of motions to vacate default judgment will not be disturbed absent a showing of abuse of discretion. Stewart v. Floyd, S.C., 265 S.E.2d 254 (1980). An abuse of discretion arises in cases in which the judge was controlled by some error of law or where the order, based upon factual, as distinguished from legal, conclusions, is without evidentiary support. Stewart v. Floyd, supra.

Here the trial court held respondent was unable to serve responsive pleadings within the statutory period because the appellant used a method of service different from that utilized in other proceedings. In previous [275 S.C. 565] litigation between the parties service of process was accomplished by the appellant serving the respondent through its registered agent, pursuant to § 33-5-60, 1976 S.C.Code of Laws. In the instant case, appellant served the respondent by delivering a copy of the summons and complaint to an agent of the respondent pursuant to § 15-9-210, 1976 S.C.Code of Laws. Service of process upon an agent under § 15-9-210, supra, is a proper method of service under South Carolina law.

We conclude the trial court erred in vacating the default judgment.

Page 292

Respondent asserts two additional sustaining grounds for vacating the default judgment. Respondent first asserts the complaint is defective on its face. This is without merit.

The first cause of action was for breach of contract accompanied by a fraudulent act. Respondent asserts the complaint fails to allege a fraudulent act. Assuming this to be true, the record reveals the appellant waived his rights to punitive damages, at the hearing, and proceeded solely on the alleged breach of contract. A cause of action for breach of contract is sufficiently set forth in the complaint.

Dobbs House next asserts the complaint is defective in that it alleged Dobbs was at all times acting as agent or representative of other defendants who were not served. Respondent relies on the principle that an agent is not liable on a contract entered into on behalf of a known principal. It is stated in Skinner & Ruddock, Inc. v. London Guarantee & Accident Co., 239 S.C. 614, 124 S.E.2d 178 (1962):

"(W)here an agent enters into a contract for a known...