SC Department fo Transportation v. Phillips

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Transportation,       
Respondent,

v.

Grace M. Phillips, William R. Martin, &
Eyleen R. Martin., as Landowners, & Grace M. Phillips, William R.
Martin, & Eyleen R. Martin, as Trustees under the Will of Thomas L.
Martin,        Appellants.

Appeal From Greenville County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-391

Submitted June 9, 2003 – Filed June
12, 2003

AFFIRMED

Donald C. Coggins, J. Mark Hayes, and Max Hyde, Jr., all of
Spartanburg, for Respondent.

Larry Estridge and Jacquelyn Austin, both of Greenville, for
Appellants.

PER CURIAM:   Affirmed
pursuant to Rule 220(b)(2), SCACR, and the following authorities: As to all
issues: Rule 60(b), SCRCP (stating “the court may relieve a party . . . from
a final judgment, order, or proceeding for the following reasons: . . . (3)
fraud, misrepresentation, or other misconduct of an adverse party”); Coleman
v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992) (“Whether to grant
or deny a motion under SCRCP 60(b) is within the sound discretion of the judge.”);
Hillman v. Pinion, 347 S.C. 253, 255, 554 S.E.2d 427, 429 (Ct. App. 2001)
(“[T]his [C]ourt will not reverse the trial court absent an abuse of discretion.”);
Steinke v. S.C. Dep’t of Labor, Licensing & Regulation, 336 S.C.
373, 398, 520 S.E.2d 142, 155 (1999) (“An abuse of discretion arises where the
trial court was controlled by an error of law or where its order is based on
factual conclusions that are without evidentiary support.”); Bowers v. Bowers,
304 S.C. 65, 67-68, 403 S.E.2d 127, 129 (Ct. App. 1991) (“The movant in a Rule
60(b) motion has the burden of presenting evidence proving the facts essential
to entitle himself to relief . . . .  ‘Fraud, misrepresentation, or other misconduct
is not to be presumed; the burden of proof as to these charges is upon the moving
party; and they must ordinarily be proved by clear and convincing evidence.’”
(quoting 7 Moore’s Fed. Prac. § 60.24[5] at 60-217 (1990))); cf.
Robertson v. First Union Nat’l Bank, 350 S.C. 339, 347-49, 565 S.E.2d
309, 313-14 (Ct. App. 2002) (holding failure to prove any element of
fraud or negligent misrepresentation is fatal to the action).

AFFIRMED.1

GOOLSBY and HOWARD, JJ., and BEATTY, Acting Judge,
concur.

1
Because oral argument would not aid the Court in resolving any issue on appeal,
we decide this case without oral argument pursuant to Rule 215, SCACR.