BB&T v. Fuller

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

BB&T of South Carolina,       
Appellant,

v.

Patricia W. Fuller,       
Respondent.

 

Appeal From Greenville County

Larry R. Patterson, Circuit Court Judge

Unpublished Opinion No. 2004-UP-156

Submitted February 9, 2004 – Filed March
10, 2004   

REVERSED

John William Ray, of Greenville, for Appellant

Patricia W. Fuller, of Greenville, for Respondent.

PER CURIAM:  Branch Banking and Trust Company
(“BB&T”) appeals an order of the Circuit Court setting aside a default judgment
against Patricia W. Fuller (Fuller).  We conclude the circuit court abused its
discretion in setting aside the judgment and reverse.

FACTS

In May 1994, Fuller obtained a $65,000 unsecured line of
credit from BB&T.  Under the terms of the line of credit instrument, Fuller
was obligated to repay the balance owed under the credit line in a variable
number of monthly installments as a percentage of the balance owed BB&T.

Beginning around July
2001, Fuller stopped making payments on the line of credit.  After Fuller refused
BB&T’s demands for payment, BB&T commenced the present action seeking
a judgment against Fuller for the outstanding balance due on the credit line. 
At the time of Fuller’s default, she still owed $19,381.49.  BB&T requested
a judgment in that amount plus interest at the contract rate of 8.75 percent
dating from July 2001.

On June 17, 2002, the trial court entered
default judgment in favor of BB&T for $24,196.98.  The trial court’s order
notes that, though BB&T’s summons and complaint was personally served on
Fuller, she had failed to respond.

Sometime in July 2002, Fuller sent a letter
to the trial court asking that the default judgment be set aside because she
had timely served her answer prior to the judgment.  The letter was personally
addressed to Circuit Judge Larry R. Patterson.  It is stamped as having been
received by the Greenville County Clerk of Court on July 16, 2002.  The record,
however, contains no certificate of service indicating BB&T was properly
served with a copy of Fuller’s letter, nor is there any indication on the face
of the letter that Fuller attempted to provide BB&T a copy of the letter
or otherwise notify it of the request made to Judge Patterson.

With no notice or opportunity to be heard,
Judge Patterson thereafter rescinded his June 17, 2002, entry of default judgment
by order filed July 16, 2002.  BB&T claims it was not aware of the trial
court’s decision to set aside the default judgment until it received a copy
of the order on July 17, 2002.  In its entirety, the order setting aside judgment
reads: 

The Order dated June 17, 2002
is rescinded.  The defendant tried to serve Plaintiff’s counsel by registered
mail; however, Plaintiff’s counsel refused delivery.  Pursuant to Rule 5, SCRCP,
service subsequent to the original summons and complaint may be served by mail
and is complete upon mailing (Citation omitted). Therefore, The Court hereby
rescinds the Order of June 17, 2002.

BB&T now appeals this order, arguing
inter alia, that it was not afforded an opportunity to rebut Fuller’s
claim that BB&T was properly served with Fuller’s answer to the original
complaint.

STANDARD OF REVIEW

A motion to vacate a judgment is addressed to the
sound discretion of the trial court, and it’s ruling will not be reversed on
appeal absent a clear showing of abuse of that discretion.  Ledford v. Pennsylvania
Life Ins. Co., 267 S.C. 671, 674-75, 230 S.E.2d 900, 902 (1976); Lowe’s
of Georgia, Inc. v. Constantino, 288 S.C. 106, 109, 341 S.E.2d 382, 383
(Ct. App. 1986).  An abuse of discretion arises when an order of a lower court
on a motion to vacate a judgment was controlled by an error of law or when the
order is without evidentiary support.  Ledford, 267 S.C. at 675, 230
S.E.2d at 902.

LAW/ANALYSIS

Based on our review of the record before
us, we conclude the trial court abused its discretion in setting aside the June
17, 2002, entry of default judgment. 

The trial court apparently
treated Fuller’s July 2002 letter as a motion to set aside the judgment pursuant
to Rule 60 (b), SCRCP.  After default judgment has been entered, the trial court
may set aside that judgment in accordance with Rule 60(b), SCRCP.  Rule 55(c),
SCRCP.  Rule 60(b) provides that “[o]n motion and upon such terms
as are just, the court may relieve a party or his legal representative from
a final judgment, order, or proceeding” due to mistake, inadvertence, excusable
neglect, newly discovered evidence, fraud or other similar reasons. (emphasis
added). Notwithstanding, such a motion may not be granted without affording
an affected party the procedural due process guarantee of notice and opportunity
to be heard.  “[I]t is fundamental that no judgment or order affecting the rights
of a party to the cause shall be made or rendered without notice to the party
whose rights are affected.”  Tryron Fed. Sav. & Loan Ass’n v. Phelps,
307 S.C. 361, 362, 415 S.E.2d 397, 398 (1992) (citing Insurance Co. of North
America v. Hyatt, 290 S.C. 159, 348 S.E.2d 532 (1986)).  “Generally, a person
against whom a judgment or order is taken without notice may rightly ignore
it and may assume that no court will enforce it against his person or property.” 
Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561 S.E.2d 659,
661 (Ct. App. 2002).  The requirements of due process not only include notice,
but also an opportunity to be heard in a meaningful way, and judicial review. 
S.C. Dep’t of Soc. Servs. v. Holden, 319 S.C. 72, 78, 459 S.E. 2d 846,
849 (1995).

It is clear from the
record that the trial court failed to afford BB&T the opportunity to be
heard on Fuller’s claim that she was not in default because she tried to serve
BB&T’s attorney by registered mail and the mail was refused.  Because the
trial court abused its’ discretion in granting relief to Fuller under Rules
55(c) and 60(b) by rescinding its earlier entry of default judgment, the trial
court’s order setting aside the default judgment is reversed.  The effect of
this reversal is to vacate the trial court’s order of July 11, 2002 and filed
on July 16, 2002.

REVERSED.

HUFF and STILWELL,
JJ., and CURETON, AJ., concur.