Jimmy Shaver v. Donnie Shaver

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

Jimmy Shaver, Respondent,

v.

Donnie Shaver, Appellant.

Appellate Case No. 2021-000480

Appeal From York County
Teasa Kay Weaver, Master-in-Equity

Unpublished Opinion No. 2023-UP-287
Submitted June 1, 2023 – Filed August 9, 2023

AFFIRMED

John Martin Foster, of Rock Hill, for Appellant.

Stephen D Schusterman, of Schusterman Law Firm, of
Rock Hill, for Respondent.

PER CURIAM: Donald Shaver (Donald) appeals the Master-in-Equity's (the
Master's) denial of his motion for relief from default judgment. On appeal, Donald
argues the Master erred by (1) declining to recognize his failure to respond to the
complaint affected only matters well-pled in the complaint, (2) refusing to allow
him to present defenses on matters outside of the complaint, and (3) abusing its
discretion by denying him relief under Rule 60(b), SCRCP. We affirm.
1. We hold Donald's first and second arguments are not preserved for review
because Donald failed to object to Jimmy Shaver's (Jimmy's) testimony at the
default damages hearing. See Doe v. S.B.M., 327 S.C. 352, 356-57, 488 S.E.2d
878, 880-81 (Ct. App. 1997) (holding the appellant's failure to object to the
introduction of evidence at a default damages hearing waives the issue on appeal);
State v. Burton, 356 S.C. 259, 265 n.5, 589 S.E.2d 6, 9 n.5 (2003) ("A pro se
litigant who knowingly elects to represent himself assumes full responsibility for
complying with substantive and procedural requirements of the law.").

2. We hold the Master did not abuse its discretion by denying Donald's motion for
relief from default judgment. See BB & T v. Taylor, 369 S.C. 548, 551, 633 S.E.2d
501, 502 (2006) ("Whether to grant or deny a motion under Rule 60(b) lies within
the sound discretion of the judge."); id. at 551, 633 S.E.2d at 502-03 ("[This
court's] standard of review, therefore, is limited to determining whether there was
an abuse of discretion."); id. at 551, 633 S.E.2d at 503 ("An abuse of discretion
arises [when] the judge issuing the order was controlled by an error of law or
[when] the order is based on factual conclusions that are without evidentiary
support."). Donald contends Jimmy's affidavit of default was misleading and
Jimmy committed extrinsic fraud by failing to disclose that Donald provided
Jimmy's attorney with a letter from Donald's insurance company that denied
coverage for the repairs for which Jimmy sought payment. Initially, we hold the
insurance letter did not constitute an answer because it did not specifically address
any of the allegations in the complaint. See Hill v. Dotts, 345 S.C. 304, 308, 547
S.E.2d 894, 896 (Ct. App. 2001) (holding a letter written on behalf of the
defendant did not constitute an answer because it did "not mention or deny any of
the fourteen specific allegations of negligence and recklessness set forth in [the]
complaint.").

Furthermore, we hold the record supports a finding that Jimmy did not commit
extrinsic fraud because Donald failed to demonstrate that Jimmy acted with intent
to conceal the letter. See Perry v. Heirs at L. of Gadsden, 357 S.C. 42, 47, 590
S.E.2d 502, 504-05 (Ct. App. 2003) ("Like all other types of fraud, proving
[extrinsic fraud] requires showing that the perpetrator acted with the intent to
defraud, for there is no such thing as accidental fraud."). Finally, we hold Donald
was not entitled to relief from default judgment under Rule 60(b) because he failed
to demonstrate how the insurance letter constituted a meritorious defense and
failed to act promptly in bringing the letter to the Master's attention. See McClurg
v. Deaton, 380 S.C. 563, 573, 671 S.E.2d 87, 93 (Ct. App. 2008) ("[I]n
determining whether to set aside a default judgment . . . the trial judge should
consider . . . (1) the promptness with which relief is sought, (2) the reasons for the
failure to act promptly, (3) the existence of a meritorious defense, and (4) the
prejudice to the other parties."); id. at 574, 671 S.E.2d at 93 ("In particular, our
courts have held that in order to obtain relief from a default judgment under Rule
60(b)(1) or 60(b)(3), not only must the movant make a proper showing he is
entitled to relief based upon one of the specified grounds, he must also make a
prima facie showing of a meritorious defense.").

AFFIRMED. 1

KONDUROS and VINSON, JJ., and LOCKEMY, A.J., concur.

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