Grossetti v. Blue

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

Thomas J. Grossetti, Jr., Respondent,

v.

Nicolette S. Blue, Appellant.

Appellate Case No. 2016-000246

Appeal From Dillon County
Richard L. Hinson, Special Referee

Unpublished Opinion No. 2017-UP-163
Submitted March 1, 2017 – Filed April 19, 2017

AFFIRMED

Brett Harris Bayne, of McAngus Goudelock & Courie,
LLC, of Columbia, for Appellant.

George D. Jebaily and Suzanne Holland Jebaily, both of
Jebaily Law Firm, PA, of Florence, for Respondent.

PER CURIAM: Nicolette Blue appeals the special referee's order denying her
motion to set aside the default judgment, arguing the special referee erred in
finding she failed to prove grounds for relief under Rule 60(b), SCRCP, and she
failed to present a meritorious defense. Blue argues she proved grounds for relief
under Rule 60(b), SCRCP, because her failure to appear was due to mistake,
inadvertence, surprise, or excusable neglect resulting from Thomas Grossetti's
failure to provide her insurance company with copies of the pleadings after he filed
the action. Further, Blue contends she presented a meritorious defense regarding
the amount and extent of damages. We affirm.1

We find the special referee did not abuse its discretion in denying Blue's motion to
set aside the default judgment because Blue failed to demonstrate mistake,
inadvertence, surprise, or excusable neglect. See Sundown Operating Co. v.
Intedge Indus., Inc., 383 S.C. 601, 606-07, 681 S.E.2d 885, 888 (2009) ("The
decision whether to set aside an entry of default or a default judgment lies solely
within the sound discretion of the [circuit court]."); Rule 55(c), SCRCP (providing
a court may set aside a default judgment in accordance with Rule 60(b)); Rule
60(b)(1), SCRCP (providing a court may relieve a party from a final judgment for
"mistake, inadvertence, surprise, or excusable neglect"). This court addressed the
plaintiffs' failure to notify an insurer of a filed action after they engaged in ongoing
negotiations with an insurer in McClurg v. Deaton. 380 S.C. 563, 671 S.E.2d 87
(Ct. App. 2008), aff'd, 395 S.C. 85, 716 S.E.2d 887 (2011). The underlying action
in McClurg arose from an accident involving an employee driving his employer's
truck. Id. at 567, 671 S.E.2d at 89. The plaintiffs engaged in ongoing negotiations
with the employer's insurer and indicated they intended to sue only the employer.
Id. at 567, 671 S.E.2d at 89-90. Without notifying the employer or its insurer, the
plaintiffs filed an action solely against the employee, who had since moved out of
state. Id. at 567, 671 S.E.2d at 90. Neither the employer nor the insurer knew an
action had been filed until receiving the notice of default judgment. This court
held the evidence supported setting aside the default judgment based on mistake,
inadvertence, surprise, or excusable neglect because "at a minimum, the facts
show[ed] [the employer] was taken by surprise when counsel filed the action solely
against [the employee] and failed to inform the insurer or [the employer] of this
action." Id. at 573, 671 S.E.2d at 92 (noting the insurer had a reasonable
expectation it would be notified of any lawsuit arising from the employee's
accident, or at least given copies of the filed pleadings, based on the plaintiffs'
conduct in negotiating the claim). In contrast, here Blue's insurer admitted it knew
an action had been filed because Grossetti notified the adjustor within six days of
filing the action.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
Further, the special referee did not abuse its discretion in denying Blue's motion to
set aside the default judgment because Blue failed to present a meritorious defense.
See id. at 574, 671 S.E.2d at 93 ("It is clear . . . a meritorious defense is more than
merely a factor to consider under certain 60(b) grounds for setting aside default
judgments. In particular, our courts have held that in order to obtain relief from a
default judgment under Rule 60(b)(1) . . . 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."). Blue asserts she
raised a meritorious defense contesting damages; however, she failed to present
any supporting evidence at the hearing and admitted she only had a "nebulous
plan" to contest damages at trial. Therefore, the special referee did not err in
finding she failed to present a meritorious defense. See Thompson v. Hammond,
299 S.C. 116, 120, 382 S.E.2d 900, 903 (1989) (providing a movant must present a
defense that raises a question of law worth discussing or that raises a real
controversy arising from conflicting or doubtful evidence); Bowers v. Bowers, 304
S.C. 65, 67, 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
him to relief.").

AFFIRMED.

WILLIAMS and KONDUROS, JJ., and LEE, A.J., concur.