Ricks v. Weinrauch, 1015
| Decision Date | 24 August 1987 |
| Docket Number | No. 1015,1015 |
| Citation | 360 S.E.2d 535,293 S.C. 372 |
| Court | South Carolina Court of Appeals |
| Parties | Anne C. RICKS, Appellant, v. Shar WEINRAUCH, individually, Shar Weinrauch, d/b/a Shear Paradise and Shear Paradise, LTD., Respondents. |
Barry L. Johnson, of Law Offices of Barry L. Johnson, Hilton Head Island, for appellant.
H. Michael Bowers, of Young, Clement, Rivers & Tisdale, Charleston, for respondents.
This is an appeal by Anne C. Ricks from a circuit court order vacating an entry of default and allowing defendants Shar Weinrauch and Shear Paradise to answer her complaint. We affirm.
On November 21, 1985, Ricks filed a summons and complaint stating causes of action for defamation, invasion of privacy, malicious prosecution, intentional infliction of distress, false arrest and false imprisonment. She served the defendants on December 2, 1985. They filed no responsive pleadings. On January 8, 1986, Ricks moved for an order of judgment by default pursuant to Rule 55(b)(1) S.C.R.Civ.P. The clerk of court entered default on January 9, 1986. On January 10, 1986, Judge Howell found that a hearing was necessary in this matter because the actual damages were unliquidated. Before the hearing was held, the defendants motioned the court to set aside the default judgment and determine whether the defendants should be allowed to answer. After arguments of counsel, the trial judge determined the defendants had shown good cause for not appearing in time, found this would not prejudice Ricks and determined the defendants had a meritorious defense. He then vacated the entry of default.
The issues to be decided are whether the trial judge erred in applying Rule 55(c) rather than Rule 60(b) S.C.R.Civ.P. and what rights exist for defaulting defendants under the South Carolina Rules of Civil Procedure.
A hearing was held April 3, 1986. Mrs. Weinrauch admitted receiving the summons and complaint on December 2, 1985. Testimony revealed she called her attorney and he advised her to contact her insurance company. She then contacted her insurance agent by phone and, pursuant to that conversation, hand delivered a copy of the summons and complaint to the agent along with a letter dated December 12, 1985, requesting delivery of the papers to the carrier. Mrs. Weinrauch left for a holiday vacation and, upon her return around December 29, 1985, discovered problems with her insurance agent. Because of the closure and bankruptcy of her insurance agent, delivery of her suit papers to the carrier apparently never occurred. Mrs. Weinrauch immediately contacted her attorney and was advised to gather all the information she could. During the busy holiday season she had placed the suit papers in the trunk of her car and left them there while her car was being serviced. Not having easy access to her car, the thirty day time limitation to answer ran before Mrs. Weinrauch was able to get the papers to her attorney. On January 21, 1986, eleven days after the entry of default, Mrs. Weinrauch served a Notice of Motion and Motion to Open Default.
Mrs. Ricks contends the trial judge erred in applying Rule 55(c) S.C.R.Civ.P. which is the standard used for vacating an entry of default. She argues the judge should have used the standard for vacating a default judgment under Rule 60(b) S.C.R.Civ.P. We disagree.
According to Rule 55(b)(1) S.C.R.Civ.P. "If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages ... the court may conduct such hearings or order such references as it deems necessary and proper...." This language indicates a court is unable to enter judgment until damages are determined. The entry of default is an official recognition of the failure to appear or otherwise respond, but is not a judgment by default. See H. Lightsey, J. Flanagan, South Carolina Civil Procedure, 77 (2nd Ed.1985).
The standard for granting relief from an entry of default is good cause under Rule 55(c) S.C.R.Civ.P., while the standard is more rigorous for granting relief from a default judgment under Rule 60(b) S.C.R.Civ.P. Relief granted at the point of entry of default is within the equitable power of the court and excuses previous failure to act promptly. Id. at 82. The trial judge correctly applied Rule 55(c) and the good cause standard.
Mrs. Ricks next argues the trial judge abused his discretion in finding Mrs....
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