Ascension Forensic, LLC v. Clark

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ascension Forensic, LLC, Respondent,

v.

Patricia B. Clark, Appellant.

Appellate Case No. 2019-000190

Appeal From Greenville County
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2021-UP-207
Submitted May 1, 2021 – Filed June 9, 2021

AFFIRMED

Melegia Lee Daniels, Jr., of M. Lee Daniels, Jr. P.C., of
Greenville, for Appellant.

Kenneth C. Anthony, Jr., of Spartanburg, of The Anthony
Law Firm, PA; and Kenneth Jay Anthony, of Anthony
Law, LLC, of Greenville, both for Respondent.

PER CURIAM: Patricia Clark appeals the circuit court's order denying her
motion to vacate a default judgment under Rule 60(b), SCRCP. On appeal, Clark
argues the circuit court erred in denying her Rule 60(b) motion because Ascension
Forensic, LLC (Ascension) failed to comply with Rule 4, SCRCP, when serving
the summons and complaint, and erroneously excluded certain documents during
the hearing. We affirm pursuant to Rule 220(b), SCACR.

The circuit court did not abuse its discretion in denying Clark's motion to vacate
the default judgment. See RRR, Inc. v. Toggas, 378 S.C. 174, 180, 662 S.E.2d 438,
441 (Ct. App. 2008) ("Whether to grant or deny a motion under Rule 60(b) lies
within the sound discretion of the [circuit court]."); Rule 60(b)(4) (explaining the
circuit court may relieve a party from a final judgment if "the judgment is void").
First, a presumption of proper service arose when Jesse Jones, a process server,
served Michael Thorstad at Clark's residence on November 10, 2016, and swore an
accompanying affidavit of service. See Rule 4(d)(1), SCRCP (stating service may
be effective by "leaving copies [of the summons and complaint] at his dwelling
house or usual place of abode with some person of suitable age and discretion then
residing therein"). Jones's affidavit of service indicated Thorstad identified himself
as Clark's boyfriend and confirmed he resided at Clark's home. Second, Clark only
offered mere denials of service in the form of Thorstad's testimony and her own
affidavit. See Fassett v. Evans, 364 S.C. 42, 47, 610 S.E.2d 841, 843 (Ct. App.
2005) ("There is a presumption of proper service when the civil rules on service
are followed."); id. at 47, 610 S.E.2d at 844 ("Further, an officer's return of process
creates the legal presumption of proper service that cannot be 'impeached by the
mere denial of service by the defendant.'" (quoting Richardson Constr. Co. v. Meek
Eng'g & Constr., 274 S.C. 307, 311, 262 S.E.2d 913, 916 (1980))). Notably, the
circuit court specifically found Thorstad's live testimony not credible. See Okatie
River, L.L.C. v. Se. Site Prep, L.L.C., 353 S.C. 327, 338, 577 S.E.2d 468, 474 (Ct.
App. 2003) ("Credibility determinations regarding testimony are a matter for the
finder of fact, who has the opportunity to observe the witnesses, and those
determinations are entitled to great deference on appeal."). Thus, the circuit court
did not abuse its discretion in denying Clark's motion to vacate the default
judgment.

Additionally, the circuit court did not abuse its discretion in excluding documents
presented by Clark that allegedly demonstrated Thorstad did not reside at her
home. See Moore v. Moore, 360 S.C. 241, 257, 599 S.E.2d 467, 475 (Ct. App.
2004) ("As a general rule, the admission of evidence is a matter addressed to the
sound discretion of the [circuit] court."). We note Clark herself admitted she only
received the documents on the morning of the hearing and did not provide them to
Ascension ahead of time. Additionally, Thorstad testified regarding the substance
of the documents and thus, Clark was not prejudiced by their exclusion. See
Stevens v. Allen, 336 S.C. 439, 448, 520 S.E.2d 625, 629 (Ct. App. 1999) ("For this
[c]ourt to reverse a case based on the admission of evidence, both error and
prejudice must be shown.").

Finally, to the extent Clark asserts the circuit court erred in considering
Ascension's brief in opposition to the motion to vacate and the related affidavits
and exhibits, we disagree. Clark does not identify how considering the brief in
opposition, the attached affidavits, or its exhibits, amounts to an abuse of
discretion. To the extent Clark's argument is grounded in the hearsay rule because
some of the documents contained out of court statements, Clark did not object on
the basis of hearsay during the hearing; she merely asked the circuit court to
disregard Ascension's brief and its exhibits. See Wilder Corp. v. Wilke, 330 S.C.
71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised
for the first time on appeal, but must have been raised to and ruled upon by the
[circuit court] to be preserved for appellate review."). Thus, the circuit court did
not abuse its discretion.

AFFIRMED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.