Smith Companies of Greenville, Inc. v. Hayes, 1983

Decision Date25 January 1993
Docket NumberNo. 1983,1983
Citation428 S.E.2d 900,311 S.C. 358
CourtSouth Carolina Court of Appeals
PartiesThe SMITH COMPANIES OF GREENVILLE, INCORPORATED, Respondent, v. Ralph Edward HAYES, II, Appellant. . Heard

Dana C. Mitchell, III, Greenville, for appellant.

Moffatt G. McDonald, of Haynsworth, Marion, McKay & Guerard, Greenville, for respondent.

BELL, Judge:

The Smith Companies of Greenville, Inc., brought an action to foreclose a bond for title given by Ralph Edward Hayes, II, for the purchase of real property. Instead of foreclosing the bond for title, the master cancelled it and ordered Hayes to surrender possession to The Smith Companies. Hayes did not appeal this judgment. Nearly eighteen months after entry of judgment, Hayes sought relief from judgment under Rule 60(b)(4) and (5), SCRCP. The master denied Hayes's motion to set aside judgment. Hayes appeals. We affirm.

Under Rule 60(b)(4) and (5), the court may grant a party relief from judgment if the party makes a motion seeking relief within a reasonable time. The master cancelled the bond for title and ordered Hayes to vacate the premises on February 23, 1990. Hayes filed his motion to set aside the judgment on August 5, 1991. The record reveals no justifiable reason to excuse Hayes's delay in seeking to set aside the February 23d judgment. Relief from judgment under Rule 60 should not be considered a substitute for appeal from a final judgment, particularly when it is clear the party seeking relief could have litigated at trial and on appeal the claims he now makes by motion. Therefore, we affirm the master's judgment denying Hayes's motion for relief.

Moreover, even if Hayes had filed his motion within a reasonable time, we would find that he is not entitled to relief under either Rule 60(b)(4) or (5). Rule 60(b)(4) allows relief from judgment if the judgment is void. Hayes argues the judgment is void, because the master exceeded the scope of the circuit court's order of reference. 1 He contends the master had authority under the order of reference only to foreclose the bond for title. The circuit judge's order of reference states: "It appearing that this is an action for the foreclosure of a Bond for Title ..., it is ordered that this action be ... referred." When a case is referred to a master, Rule 53(c) gives the master the power to conduct hearings in the same manner as the circuit court, unless the order of reference specifies or limits his powers. Bonney v. Granger, 292 S.C. 308, 356 S.E.2d 138 (Ct.App.1987). The order of reference in this case in no way limits the master's powers. The circuit judge's description of the action serves as a ground for his decision to direct a reference rather than as a limitation of the master's power. Therefore, the master did not exceed the scope of the reference by cancelling the bond rather than foreclosing Hayes's rights under the bond.

Rule 60(b)(5) permits relief from judgment if, among other things, it is no longer equitable that the judgment should have prospective application. Hayes argues a subsequent judgment against him in a related action makes the judgment cancelling the bond for title inequitable. The second action resulted in a personal judgment against Hayes for $66,767.81 on a promissory note he gave The Smith Companies as a down payment for the purchase of the same home for which he gave the bond for title. Although the second suit raises questions whether the master should have foreclosed rather than cancelled the bond for title, 2...

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25 cases
  • McDaniel v. U.S. Fidelity and Guar. Co., 2598
    • United States
    • South Carolina Court of Appeals
    • October 9, 1996
    ...n. 2, 345 S.E.2d 246, 248 n. 2 (1986) (noting that 60(b)(4) motions must be made within a reasonable time); Smith Cos. v. Hayes, 311 S.C. 358, 359, 428 S.E.2d 900, 902 (Ct.App.1993) (affirming a denial of relief on the basis that the 60(b)(4) motion was not made within a reasonable time). C......
  • Wells Fargo Bank, NA, v. Smith
    • United States
    • South Carolina Court of Appeals
    • August 8, 2012 the circuit court unless the order of reference specifies or limits the master's powers. Smith Cos. of Greenville, Inc. v. Hayes, 311 S.C. 358, 360, 428 S.E.2d 900, 902 (Ct.App.1993). Specifically, Rule 53(c), SCRCP, states “[o]nce referred, the master or special referee shall exercise a......
  • In re Kingsmore, C/A 02-04789-W.
    • United States
    • U.S. Bankruptcy Court — District of South Carolina
    • October 2, 2002
    ...subject to foreclosure or whether the vendor-seller could simply sue to cancel the bond); Smith Companies of Greenville, Inc. v. Hayes, 311 S.C. 358, 428 S.E.2d 900, 902 fn. 2 (S.C.Ct.App.1993) (denying a purchaser's motion to reconsider a judgment canceling a bond for title and noting that......
  • Binkley v. Rabon Creek Watershed Conserv.
    • United States
    • South Carolina Court of Appeals
    • November 19, 2001
    ...453 (2001) (stating relief from judgment under Rule 60, SCRCP, is not a substitute for appeal) (citing Smith Companies of Greenville v. Hayes, 311 S.C. 358, 428 S.E.2d 900 (Ct.App.1993)). ...
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1 books & journal articles
  • Serving the Master
    • United States
    • South Carolina Bar South Carolina Lawyer No. 26-4, January 2015
    • Invalid date
    ...County Clerk); Smith v. Hawkins, 254 S.C. 423, 175 S.E.2d 824 (1970) (Greenwood County Clerk). [5] Rule 53(b), SCRCP. [6] Id. [7] 311 S.C. 358, 428 S.E.2d 900 (Ct. App. 1993). [8] Id. at 360, 428 S.E.2d at 902 n.l. [9] 332 S.C. 75, 504 S.E.2d 311 (1998). [10] Id. at 80, 504 S.E.2d at 313. [......

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