Williams v. Hipp
| Decision Date | 13 February 2019 |
| Docket Number | 2019-UP-069 |
| Parties | Pearline Williams, Respondent, v. Larita Hipp and Michelle Masaryk, Defendants, Of whom Michelle Masaryk is the Appellant. Appellate Case No. 2016-002043 |
| Court | South Carolina Court of Appeals |
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.
Submitted December 6, 2018
Appeal From Richland County L. Casey Manning, Circuit Court Judge
William H. Bowman, III and Robert P. Wood, both of Rogers Townsend & Thomas, PC, of Columbia, for Appellant.
Gerald Eugene Reardon, of Law Office of Jerry Reardon, and Blake A Hewitt, of Bluestein Thompson Sullivan LLC, both of Columbia for Respondent.
Michelle Masaryk appeals the circuit court's entry of default and a monetary judgment against her. On appeal, Masaryk argues the circuit court abused its discretion in (1) declining to set aside the default judgment when the affidavit of non-service was insufficient to show the process server exercised due diligence in attempting to locate her and (2) executing two different money judgment amounts and enforcing the greater of the two. We affirm.
Masaryk argues the circuit court abused its discretion in denying her motion to set aside the default judgment because the facts show Williams failed to exercise due diligence in attempting to personally serve her. She relies on Caldwell v. Wiquist, 402 S.C. 565, 741 S.E.2d 583 (Ct. App. 2013) for the proposition that service by publication is ineffective where the affidavit of non-service is facially defective for failing to state facts of sufficient quality supporting a finding of due diligence. She avers the facts in the instant process server's affidavit were similarly devoid of detail to those in Caldwell, thus rendering the service by publication ineffective. We disagree.
"The power to set aside a default judgment is addressed to the sound discretion of the [circuit] court and will not be disturbed on appeal absent a clear showing of an abuse of discretion." Melton v. Olenik, 379 S.C. 45, 50, 664 S.E.2d 487, 489-90 (Ct. App. 2008). "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." Id. at 50, 664 S.E.2d at 490.
Rule 60(b)(4), SCRCP, provides the circuit court may relieve a party from a final judgment if the judgment is void. "The definition of 'void' under the rule only encompasses judgments from courts which failed to provide proper due process, or judgments from courts which lacked subject matter jurisdiction or personal jurisdiction." McDaniel v. U.S. Fid. & Guar. Co., 324 S.C. 639, 644, 478 S.E.2d 868, 871 (Ct. App. 1996). "The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle him to relief." Delta Apparel, Inc. v. Farina, 406 S.C. 257, 267, 750 S.E.2d 615, 620 (Ct. App. 2013).
Section 15-9-710 of the South Carolina Code (2005) provides service by publication is allowable when the defendant is a resident of this state and cannot be found after a diligent search. The section Dow v. Bolden, 245 S.C. 321, 329, 140 S.E.2d 473, 477 (1965) (quoting Yates v. Gridley, 16 S.C. 496, 499-500 (1882)).
In Yarbrough v. Collins, our supreme court held it was error for this court to consider the sufficiency of affidavits in support of notice by publication, even where the affidavits contained only conclusory statements, when the opposing party failed to show any evidence of fraud or collusion. 293 S.C. 290, 292-93, 360 S.E.2d 300, 301 (1987). "[Yarbrough] makes it clear that in the absence of fraud or collusion, the decision of the officer ordering service by publication is final." Montgomery v. Mullins, 325 S.C. 500, 506, 480 S.E.2d 467, 470 (Ct. App. 1997). "When the issuing officer is satisfied by the affidavit, his decision to order service by publication is final absent fraud or collusion." Wachovia Bank of S.C., N.A. v. Player, 341 S.C. 424, 429, 535 S.E.2d 128, 130 (2000).
In Caldwell, this court held affidavits requesting service by publication that are facially defective for failure to comply with the publication statute will not be sustained even in the absence of fraud or collusion. 402 S.C. at 571-72, 741 S.E.2d at 586-87. Therein, the Beaufort County Sheriff's Department wrote "ADDRESS VACANT" on the affidavit of non-service after unsuccessfully attempting to effect service on the address listed on an accident report; the plaintiffs also did not attempt to serve the defendant by mail. Id. at 568, 741 S.E.2d at 585. Moreover, the affidavit provided the defendant was not a resident of Beaufort County and therefore could not be personally served in Beaufort County. Id. at 571, 741 S.E.2d at 587. This court overturned the order of default, finding the affidavits did not strictly comply with section 15-9-710 because they were facially defective. Id. at 569-75, 741 S.E.2d 586-89. This court stated:
Section 15-9-710 permits service by publication when a defendant cannot be found within the [s]tate, but the [plaintiffs]' affidavits requesting service by publication only provide that [the defendant] could not be served in Beaufort County and contain no information regarding whether or not she could be found in the [s]tate. The affidavits requesting publication are defective on their face because they state the [plaintiffs] tried to serve a non-resident of Beaufort County only in Beaufort County. Furthermore, the affidavits requesting service by publication do not contain any statements regarding the due diligence undertaken and, in fact, do not even contain the phrase "due diligence."
Id. at 571-72, 741 S.E.2d at 587. "[T]he affidavit must include some factual basis upon which the court issuing the order of service by publication can find that the defendant cannot, after due diligence, be found within the state." Id. at 574, 741 S.E.2d at 588. "It is the existence of this factual basis that our appellate courts have found make the order for service by publication unreviewable, absent fraud or collusion." Id.
We find the circuit court did not abuse its discretion in denying Masaryk's motion to set aside the default judgment. See Melton, 379 S.C. at 50, 664 S.E.2d at 489- 90 ("The power to set aside a default judgment is addressed to the sound discretion of the [circuit] court and will not be disturbed on appeal absent a clear showing of an abuse of discretion."). In the case at bar, the affidavit from the process server indicated he went to the Longcreek address listed on Masaryk's drivers' license and the accident report; the affidavit further stated he spoke to the current resident, who did not know Masaryk's whereabouts. Unlike Caldwell, the affidavit in support of publication from Williams's attorney did not specifically state the search for Masaryk was limited to a county in which she was not a resident. See Caldwell, 402 S.C. at 571, 741 S.E.2d at 587. Moreover, both the process server's affidavit and Williams's attorney's affidavit contained language regarding "due diligence," which was notably absent from the affidavits in Caldwell. See id. at 571-72, 741 S.E.2d at 587. In his supplemental affidavit, which was submitted to the circuit court, the process server further explained he performed a skip trace search that did not reveal any other addresses linked to Masaryk. See id. at 571, 471 S.E.2d at 587 ( the affidavit of non-service stated the plaintiffs only attempted to serve the defendant, a non-resident of Beaufort County, in Beaufort County, and the plaintiffs provided no additional information regarding their search efforts). Thus, we believe the insufficiencies of the Caldwell affidavits are absent from this case.
The Caldwell court also expressed concern that the plaintiffs did not make any attempt to serve the defendant by mail. Id. at 568, 741 S.E.2d at 585. Here, on the other hand, the order of service by publication required Williams to mail the summons and complaint to Masaryk's last known address. At the damages hearing, Williams introduced a copy of the...
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