Roberson v. White

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Helen K. Roberson, Respondent,

v.

Arthur White, Ben Milligan, Betty

Manigault, William Milligan,

Yvonne Capers and Isaiah

Washington (if he is alive), John

Doe, adults and Richard Roe,

infants, insane persons,

incompetents, being fictitious

names designating as a class any

person, who may be an heir,

distributee, legatee, devisee, widow,

widower, assignee, administrator,

executor, personal representative,

creditor, successor, issue and

alienee of Cain Bryan, Cain Bryan, Jr.,

Ella Bryan Milligan, Arthur Milligan,

Manzie Milligan, Betsy Milligan

Washington, Martha Grant, Sonnie

Miligan, Jane Bryan Capers, Earnest

Capers, Annie Bryan White, Jim

White, Laurence White, Elijah Cody

White, Hanna Bryan, Rachael Bryan,

Joseph Bryan, Elizabeth Bryan,

Mansy Bryan, Louisa Bryan

Washington, Isaiah Washington

(if he is deceased), Carolina Bryan

Brown and Loretta Bryan Williams,

deceased and all other persons or legal

ntities, known and unknown, owning,

having and claiming any right, title

and interest in the parcels of land

described in the Complaint herein or

any part thereof, Defendants,

of whom Yvonne Capers is the Appellant.

Appeal From Charleston County

Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2008-UP-224

Submitted April 1, 2008 – Filed April 11,
2008

AFFIRMED

John J. Dodds, III, of Mt. Pleasant; for
Appellant.

Robert A. Kerr, and Brendan P.
Langendorfer,

of Mt. Pleasant; for Respondent.

PER CURIAM: Yvonne
Capers appeals the Master-in-Equity’s refusal

to grant her a
new trial or relief from judgment relating to a service of process by
publication, ensuing default judgment, and sale of heirs property.  We affirm.[1]

FACTS

At the center of this action are three parcels of unimproved
property (Property) located along Highway 17 North in Charleston County.  Ernest Capers owned an undivided one-sixth interest in the Property.  Ernest Capers
died November 19, 1998.  Appellant Yvonne Capers (Capers) is Ernest Capers’
widow and sole heir.    

On November 5, 2002, Respondent Helen Roberson (Roberson) filed an
action seeking a judicial declaration that she was the fee simple title owner
of the Property.  Roberson’s counsel at that time, Russell Brown (Brown), filed
a Motion for Service by Publication supported by an Affidavit of Publication. 
In the supporting affidavit, Brown swore neither he nor Roberson knew the
address or residence of the Defendants, including the widow of Ernest Capers.  The
affidavit also stated the Defendants’ “place of residence… cannot with
reasonable diligence be ascertained” by Brown or Roberson.  The affidavit
further stated the nature of the declaratory action sought and the Defendants,
including the widow of Ernest Capers, were proper and necessary parties to the
action.  The Clerk of Court for Charleston County granted an Order of
Publication on November 5, 2002.  A notice which included Yvonne Capers’ name
along with the names of other Defendants was printed in the Moultrie News three
times during November 2002.  

On December 9, 2003, the circuit court found Capers had been
properly served, failed to respond, and was therefore in default.  The circuit
court referred the action to the Master-in-Equity (Master).  A hearing was held
before the Master on August 30, 2004.  Thereafter the Master issued a Judgment
of Sale and Distribution clearing title to the Property and ordering the
Property be sold.  Capers did not know of the hearing and did not appear;
however, a fellow Defendant, Arthur Milligan, Jr., was present and represented
by counsel.  Milligan submitted evidence regarding the fair market value of the
Property.    

On January 9, 2006, Roberson purchased the Property.  Near
the end of September 2006, Roberson’s attorney, Louis Moore (Moore), called
Capers’ residence.  On
September 28, 2006, Moore delivered a check for $34,037.73, representing Capers’ share of the Property’s net sale
proceeds, to Capers’ attorney.  Six days later Capers’ attorney returned the
check to Moore and filed a motion pursuant to Rules 59 and 60, SCRCP, for new
trial or relief from judgment on the ground Capers had never been lawfully
served.  The Master heard Capers’ motion on November 21, 2006, and subsequently
denied the motion. The Master also denied Capers’ Rule 59(e) Motion to Alter or
Amend Judgment.  Capers appealed. 

STANDARD OF REVIEW

The grant or denial of new trial motions and motions under Rule 60(b) lie within the sound discretion of the judge. Stevens v. Allen, 336 S.C.
439, 446, 520 S.E.2d 625, 628-29 (Ct. App. 1999); Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 17-18, 594 S.E.2d 478,
482 (2004).  Our standard of review, therefore,
is limited to determining whether there was an abuse of discretion.  Raby
Constr., L.L.P., 358 S.C. at 18, 594 S.E.2d at 482.  “An abuse of discretion occurs when there is an error of
law or a factual conclusion which is without evidentiary support.” Gooding
v. St. Francis Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997).

LAW/ANALYSIS

Capers
appeals the Master’s refusal to grant her motion for a new trial or relief from
judgment.  In her affidavit to the Master, Capers stated she and her late
husband had resided in the same residence in Awendaw for the last thirty years.
 During that time, her telephone number and listing in the telephone directory
under William E. Capers has not changed.  Capers contends she was never served
or properly notified of the reference hearing or sale of the Property.

An order for service by publication may be issued pursuant to Section 15-9-710 of
the South Carolina Code (Supp. 1999) when an affidavit, satisfactory
to the issuing officer, is made stating that the defendant, a resident of the
state, cannot, after the exercise of due diligence, be found, and that a cause
of action exists against him. S.C.
Code Ann. § 15-9-710(3) (Supp. 1999). 

“Generally,
absent fraud or collusion, once the issuing officer is satisfied with the
supporting affidavit, the decision to order service by publication is final
unless the order of publication is premised upon a facially defective
affidavit.” Brown v. Malloy, 345 S.C. 113, 118, 546 S.E.2d 195, 197 (Ct. App. 2001) (citing Wachovia Bank of S.C. v. Player, 334 S.C. 200, 204, 512
S.E.2d 129, 131 (Ct. App. 1999), rev’d on other grounds, 341 S.C. 424, 535
S.E.2d 128 (2000); Yarbrough v. Collins, 293 S.C. 290, 292-93, 360
S.E.2d 300, 301 (1987) (holding the Court of Appeals erroneously added the
requirement that an affidavit for publication must set forth facts showing due
diligence had been exercised and the court should not consider the sufficiency
of the affidavit when there was no allegation the affidavit was obtained by
fraud or collusion); Montgomery v. Mullins, 325 S.C. 500, 506, 480
S.E.2d 467, 470 (Ct. App. 1997) (“the trial court was without authority to
overrule the finding of the clerk of court that the Mullinses could not, ‘after
due diligence, be found in the County and State of their last known
residence’”); Miles v. Lee, 319 S.C. 271, 274, 460 S.E.2d 423, 425 (Ct.
App. 1995) (holding the affidavit for publication was facially defective when
it named Kenneth Wayne Lee as the defendant and person to be served although
Robert Lewis Miles, Sr. was the actual defendant in the adoption/termination of
parental rights proceeding)).

Capers
argues the Affidavit of Publication is facially defective because her name does
not appear in the affidavit.  Although the affidavit does not mention Capers by
name, it includes Capers as one of the Defendants:

“…joined
in this cause under the fictitious names of John Doe, adults, and Richard Roe,
infants, insane persons, and incompetents, being fictitious names, designating
as a class any person or legal entity who may be an heir, distributee [sic],
legatee, devisee, widow, …of… Ernest Capers, …and all other persons or legal
entities, known and unknown, owning, having and claiming any right, title and
interest in the parcels of land.”

Capers is also specifically
listed in the caption of the affidavit.  In Miles v. Lee, this court
found an affidavit was facially defective[2] when “it purported to show due diligence in ascertaining the whereabouts of
someone other than the person to be served.” 319 S.C. 271, 274, 460 S.E.2d 423,
425 (Ct. App. 1995).  No such situation exists in the present case.  Indeed,
Roberson’s counsel was able to locate addresses and mail a Notice of Hearing to
twenty-two other Defendants.  Capers has not presented any evidence[3] Roberson or her counsel attempted to intentionally exclude Capers from the
proceedings.

In
her brief to this court, Capers also argues it is clear no effort was made to
locate her.  Capers cites the fact that the Complaint, Affidavit of
Publication, and Order of Publication were all filed on the same day.  This argument
also fails.  Section 15-9-710 prescribes no timelines or routine to follow when
filing for service by publication. S.C. Code Ann. § 15-9-710 (Supp. 1999).  “All that this section requires is, that it be made to
appear by affidavit to the satisfaction of the officer who directs the
publication, that the defendant has property in the State, that he cannot be
found therein after due diligence, and that a cause of action exists against
him.” Yates v. Gridley, 16 S.C. 496, 499 (1882).  The statute does not
specify the character of the facts and circumstances which must be stated in
the affidavit or the quantity of evidence necessary to satisfy the officer
ordering publication.  Yarbrough, 293 S.C. at 292, 360 S.E.2d at
301 (1987) (citing Yates, 16 S.C. at 500).  The publication affidavit can suffice
even if it contains only a conclusory statement that due diligence was
exercised[4] and does not set forth facts showing due diligence had, in fact, been
exercised, so long as the affidavit satisfies the issuing officer.  Yarbrough,
293 S.C. at 292-93, 360 S.E.2d at 301. 

Accordingly,
the order of the Master is

AFFIRMED.

ANDERSON, SHORT, and THOMAS, JJ., concur.

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

[2] Hopkins v. Brown is another South Carolina
case in which the courts have dealt with the issue of whether affidavits in
support of notice by publication were facially defective. 2006-UP-276 (Ct. App.
filed June 8, 2006).  In that case, the Respondent filed an affidavit indicating
she could not locate the Appellant, and a Sherriff’s Office filed an affidavit
indicating they attempted to serve the Appellant but were unable to do so. 
This court found, “[t]here is nothing facially defective about these documents
nor is there any testimony in the record that would indicate the information
contained therein was untrue.”  

[3] “The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to
entitle her to relief.” BB&T v. Taylor, 369 S.C. 548, 552, 633
S.E.2d 501, 503 (2006).  The burden of presenting evidence of fraud or
collusion, for example, through the testimony of the clerk who ordered the
publication, falls to the Appellant. Wachovia Bank of S.C. v. Player,
341 S.C. 424, 429, 535 S.E.2d 128, 130, n.5 (2000).

[4] “When the record is silent, the court will presume
that what should have been done was done.”  Miles v. Lee, 319 S.C. at
274, 460 S.E.2d at 425 (citing Fouche v. Royal Indemnity Co. of N.Y.,
217 S.C. 147, 60 S.E.2d 73 (1950)).