Joyce Porter v. Jimmy Davis

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

Joyce Porter and Edith Durham, Respondents,

v.

Jimmy L. Davis, Inc., and Jimmy L. Davis, Individually,
Appellants.

Appellate Case No. 2022-000242

Appeal From Anderson County
R. Scott Sprouse, Circuit Court Judge
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2023-UP-170
Submitted April 1, 2023 – Filed May 3, 2023

AFFIRMED AS MODIFIED

James S. Eakes, of Allen & Eakes, of Anderson, for
Appellants.

M. Stokely Holder and Raford W. Bussey, Jr., both of
Holder, Padgett, Littlejohn & Prickett, LLC, of
Greenville, for Respondents.
PER CURIAM: Jimmy L. Davis, individually, and Jimmy L. Davis, Inc. (Davis)
appeal two circuit court orders—one denying his motion to set aside an entry of
default and one denying his motion to set aside a default judgment. On appeal,
Davis argues the circuit court erred in (1) failing to set aside the entry of default
and (2) awarding damages. We affirm as modified.

1. We hold the circuit court properly denied Davis's motion to set aside the entry
of default. See In re Est. of Weeks, 329 S.C. 251, 259, 495 S.E.2d 454, 459 (Ct.
App. 1997) ("The decision whether to set aside an entry of default is left to the
sound discretion of the [circuit court]."); Delta Apparel, Inc. v. Farina, 406 S.C.
257, 265, 750 S.E.2d 615, 619 (Ct. App. 2013) ("The [circuit] court's decision will
not be disturbed on appeal absent a clear showing of an abuse of that discretion."
(quoting Roberson v. S. Fin. of S.C., Inc., 365 S.C. 6, 9, 615 S.E.2d 112, 114
(2005))); Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 607, 681
S.E.2d 885, 888 (2009) ("An abuse of discretion occurs when the [court] issuing
the order was controlled by some error of law or when the order, based upon
factual, as distinguished from legal conclusions, is without evidentiary support.").
In this case, Michael McNamara filed an affidavit of service attesting that on May
22, 2019, he personally served Davis with the summons and complaint in this
action at a BP station—one of Davis's job sites. At the evidentiary hearing,
McNamara testified he knew Davis from previous interactions, recognized Davis's
truck at the BP station on May 22, and personally served Davis. He also testified
he previously worked as a law enforcement officer for twenty-seven years, had led
several investigative units for the Greenville County Sheriff's Office, and had filed
"several thousand" affidavits of service or non-service. The circuit court found
McNamara's testimony was "credible and compelling." Davis filed an affidavit
denying he was served, and his office coordinator testified Davis was not at the BP
station on May 22, 2019. Davis also provided a printout purporting to show he
was at a different job site on the date in question; however, the office coordinator
acknowledged the printout contained a discrepancy between the time and distance
traveled, and she admitted a user could add a location to the map. Thus, we hold
the circuit court properly denied Davis's motion to set aside the entry of default.
See Fassett v. Evans, 364 S.C. 42, 47, 610 S.E.2d 841, 844 (Ct. App. 2005) ("[A]n
[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., Inc., 274 S.C. 307, 311, 262
S.E.2d 913, 916 (1980))); Richardson Constr. Co., 274 S.C. at 311, 262 S.E.2d at
915 ("An affidavit of service is [p]rima facie evidence of service which may be
impeached by extrinsic evidence."); see also Laurens Tr. Co. v. Copeland, 154
S.C. 390, 397-98, 151 S.E. 617, 620 (1930) (holding evidence had "clearly and
convincingly established" the falsity of an affidavit of service when the sheriff's
deputy whose signature appeared on the affidavit testified he had not served the
defendant and had never seen her prior to the evidentiary hearing, uncontroverted
evidence showed the signature on the affidavit was not that of the deputy, the
defendant confirmed she had never seen the deputy before the hearing, and no
evidence showed the defendant was served by another person). Thus, we affirm on
this issue.

2. As to whether the circuit court erred in its award of damages, we affirm the
default judgment as modified. Initially, we find evidence supports the circuit
court's award of the following damages to Joyce Porter and Edith Durham:
$94,790.40 for the down payment; $33,176.64 in prejudgment interest on the down
payment; $1,003 for additional building plans; $1,320 for storage fees; and
$601.72 for moving costs. See Thompson v. Hammond, 299 S.C. 116, 119, 382
S.E.2d 900, 902-903 (1989) ("The decision whether to set aside an entry of default
or a default judgment lies solely within the sound discretion of the trial judge."); id.
("This decision will not be reversed absent an abuse of that discretion."); Weeks,
329 S.C. at 259, 495 S.E.2d at 459 ("An abuse of discretion in setting aside a
default judgment occurs when the [circuit court] issuing the order was controlled
by some error of law or when the order, based upon factual, as distinguished from
legal conclusions, is without evidentiary support.").

However, we hold no evidence supported the circuit court's award of $12,500 for
lost profits from the lot's sale. At the damages hearing, Durham testified she
purchased two adjoining lots in a subdivision for a total of $25,000, and thereafter
sold one lot to Davis for $12,500 and entered into a contract with Davis to build a
home on the remaining lot. When Durham realized Davis had not finished the
foundation of the home one month before the home was set to be completed and
had made several errors in the building plans, she terminated the contract. Durham
testified she was later forced to sell the remaining lot for $12,500. Because
Durham acknowledged she purchased both lots for a total of $25,000 and
subsequently sold each lot for $12,500 apiece, we find she did not suffer any losses
from the sale. Thus, we strike this award of damages and affirm the default
judgment as modified. See Wells Fargo Bank, N.A. v. Marion Amphitheatre, LLC,
408 S.C. 87, 90, 757 S.E.2d 557, 559 (Ct. App. 2014) ("[T]he principle that a
plaintiff must prove his damages even when the defendant is in default applies to
all damages claims in default cases.").
AFFIRMED AS MODIFIED. 1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

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