Williams v. Masaryk

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

Pearline Williams, Respondent,

v.

Larita Hipp and Michelle Masaryk, Defendants,

Of whom Michelle Masaryk is the Appellant.

Appellate Case No. 2016-002043

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2019-UP-069
Submitted December 6, 2018 – Filed February 13, 2019

AFFIRMED

William H. Bowman, III and Robert P. Wood, both of
Rogers Townsend & Thomas, PC, of Columbia, for
Appellant.

Gerald Eugene Reardon, of Law Office of Jerry Reardon,
and Blake A. Hewitt, of Bluestein Thompson Sullivan
LLC, both of Columbia, for Respondent.
PER CURIAM: Michelle Masaryk appeals the circuit court's entry of default and
a monetary judgment against her. On appeal, Masaryk argues the circuit court
abused its discretion in (1) declining to set aside the default judgment when the
affidavit of non-service was insufficient to show the process server exercised due
diligence in attempting to locate her and (2) executing two different money
judgment amounts and enforcing the greater of the two. We affirm.

I. SERVICE BY PUBLICATION

Masaryk argues the circuit court abused its discretion in denying her motion to set
aside the default judgment because the facts show Williams failed to exercise due
diligence in attempting to personally serve her. She relies on Caldwell v. Wiquist,
402 S.C. 565, 741 S.E.2d 583 (Ct. App. 2013) for the proposition that service by
publication is ineffective where the affidavit of non-service is facially defective for
failing to state facts of sufficient quality supporting a finding of due diligence. She
avers the facts in the instant process server's affidavit were similarly devoid of
detail to those in Caldwell, thus rendering the service by publication ineffective.
We disagree.

"The power to set aside a default judgment is addressed to the sound discretion of
the [circuit] court and will not be disturbed on appeal absent a clear showing of an
abuse of discretion." Melton v. Olenik, 379 S.C. 45, 50, 664 S.E.2d 487, 489–90
(Ct. App. 2008). "An abuse of discretion arises when the court issuing the order
was controlled by an error of law or when the order, based upon factual
conclusions, is without evidentiary support." Id. at 50, 664 S.E.2d at 490.

Rule 60(b)(4), SCRCP, provides the circuit court may relieve a party from a final
judgment if the judgment is void. "The definition of 'void' under the rule only
encompasses judgments from courts which failed to provide proper due process, or
judgments from courts which lacked subject matter jurisdiction or personal
jurisdiction." McDaniel v. U.S. Fid. & Guar. Co., 324 S.C. 639, 644, 478 S.E.2d
868, 871 (Ct. App. 1996). "The movant in a Rule 60(b) motion has the burden of
presenting evidence proving the facts essential to entitle him to relief." Delta
Apparel, Inc. v. Farina, 406 S.C. 257, 267, 750 S.E.2d 615, 620 (Ct. App. 2013).

Section 15-9-710 of the South Carolina Code (2005) provides service by
publication is allowable when the defendant is a resident of this state and cannot be
found after a diligent search. The section "does not specify the character of the
facts and circumstances which must be stated in the affidavit or the quantity of the
evidence necessary to satisfy the officer, before ordering publication. It simply
requires that it must appear by affidavit to his satisfaction." Dow v. Bolden, 245
S.C. 321, 329, 140 S.E.2d 473, 477 (1965) (quoting Yates v. Gridley, 16 S.C. 496,
499–500 (1882)).

In Yarbrough v. Collins, our supreme court held it was error for this court to
consider the sufficiency of affidavits in support of notice by publication, even
where the affidavits contained only conclusory statements, when the opposing
party failed to show any evidence of fraud or collusion. 293 S.C. 290, 292–93, 360
S.E.2d 300, 301 (1987). "[Yarbrough] makes it clear that in the absence of fraud
or collusion, the decision of the officer ordering service by publication is final."
Montgomery v. Mullins, 325 S.C. 500, 506, 480 S.E.2d 467, 470 (Ct. App. 1997).
"When the issuing officer is satisfied by the affidavit, his decision to order service
by publication is final absent fraud or collusion." Wachovia Bank of S.C., N.A. v.
Player, 341 S.C. 424, 429, 535 S.E.2d 128, 130 (2000).

In Caldwell, this court held affidavits requesting service by publication that are
facially defective for failure to comply with the publication statute will not be
sustained even in the absence of fraud or collusion. 402 S.C. at 571–72, 741
S.E.2d at 586–87. Therein, the Beaufort County Sheriff's Department wrote
"ADDRESS VACANT" on the affidavit of non-service after unsuccessfully
attempting to effect service on the address listed on an accident report; the
plaintiffs also did not attempt to serve the defendant by mail. Id. at 568, 741
S.E.2d at 585. Moreover, the affidavit provided the defendant was not a resident
of Beaufort County and therefore could not be personally served in Beaufort
County. Id. at 571, 741 S.E.2d at 587. This court overturned the order of default,
finding the affidavits did not strictly comply with section 15-9-710 because they
were facially defective. Id. at 569–75, 741 S.E.2d 586–89. This court stated:

Section 15-9-710 permits service by publication when a
defendant cannot be found within the [s]tate, but the
[plaintiffs]' affidavits requesting service by publication
only provide that [the defendant] could not be served in
Beaufort County and contain no information regarding
whether or not she could be found in the [s]tate. The
affidavits requesting publication are defective on their
face because they state the [plaintiffs] tried to serve a
non-resident of Beaufort County only in Beaufort
County. Furthermore, the affidavits requesting service
by publication do not contain any statements regarding
the due diligence undertaken and, in fact, do not even
contain the phrase "due diligence."

Id. at 571–72, 741 S.E.2d at 587. "[T]he affidavit must include some factual basis
upon which the court issuing the order of service by publication can find that the
defendant cannot, after due diligence, be found within the state." Id. at 574, 741
S.E.2d at 588. "It is the existence of this factual basis that our appellate courts
have found make the order for service by publication unreviewable, absent fraud or
collusion." Id.

We find the circuit court did not abuse its discretion in denying Masaryk's motion
to set aside the default judgment. See Melton, 379 S.C. at 50, 664 S.E.2d at 489–
90 ("The power to set aside a default judgment is addressed to the sound discretion
of the [circuit] court and will not be disturbed on appeal absent a clear showing of
an abuse of discretion."). In the case at bar, the affidavit from the process server
indicated he went to the Longcreek address listed on Masaryk's drivers' license and
the accident report; the affidavit further stated he spoke to the current resident, who
did not know Masaryk's whereabouts. Unlike Caldwell, the affidavit in support of
publication from Williams's attorney did not specifically state the search for
Masaryk was limited to a county in which she was not a resident. See Caldwell,
402 S.C. at 571, 741 S.E.2d at 587. Moreover, both the process server's affidavit
and Williams's attorney's affidavit contained language regarding "due diligence,"
which was notably absent from the affidavits in Caldwell. See id. at 571–72, 741
S.E.2d at 587. In his supplemental affidavit, which was submitted to the circuit
court, the process server further explained he performed a skip trace search that did
not reveal any other addresses linked to Masaryk. See id. at 571, 471 S.E.2d at 587
(noting the affidavit of non-service stated the plaintiffs only attempted to serve the
defendant, a non-resident of Beaufort County, in Beaufort County, and the
plaintiffs provided no additional information regarding their search efforts). Thus,
we believe the insufficiencies of the Caldwell affidavits are absent from this case.

The Caldwell court also expressed concern that the plaintiffs did not make any
attempt to serve the defendant by mail. Id. at 568, 741 S.E.2d at 585. Here, on the
other hand, the order of service by publication required Williams to mail the
summons and complaint to Masaryk's last known address. At the damages
hearing, Williams introduced a copy of the certified envelope containing a notice
of the damages hearing, which was undeliverable. Accordingly, we find the instant
appeal is distinguishable from Caldwell because the affidavits here were not
facially defective and contained at least some facts concerning the efforts to locate
Masaryk within the state. Because Masaryk does not argue the affidavits in
support of service by publication contain fraud or collusion, this court is precluded
from further inquiry into the sufficiency of the affidavits. See Montgomery, 325
S.C. at 506, 480 S.E.2d at 470 ("[Yarbrough] makes it clear that in the absence of
fraud or collusion, the decision of the officer ordering service by publication is
final."); Player, 341 S.C. at 429, 535 S.E.2d at 130 ("When the issuing officer is
satisfied by the affidavit, his decision to order service by publication is final absent
fraud or collusion.").

II. JUDGMENT AMOUNT

Masaryk also argues the circuit court erred in entering two money judgments and
arbitrarily choosing to enforce the greater of the two. She asserts the circuit court
properly entered the March 21 judgment for $25,000 but unjustly changed the
scope of the judgment against her by entering the subsequent order for $45,000.
We disagree.

"Clerical mistakes in judgments, orders or other parts of the record and errors
therein arising from oversight or omission may be corrected by the court at any
time of its own initiative or on the motion of any party and after such notice, if any,
as the court orders." Rule 60(a), SCRCP. "Generally, a clerical error is defined as
a mistake in writing or copying." Dion v. Ravenel, Eiserhardt Assocs., 316 S.C.
226, 230, 449 S.E.2d 251, 253 (Ct. App. 1994). "As applied to judgments and
decrees, it is a mistake or omission by a clerk, counsel, judge or printer which is
not the result of exercise of judicial function." Id. "While a court may correct
mistakes or clerical errors in its own process to make it conform to the record, it
cannot change the scope of the judgment." Id. at 230, 449 S.E.2d at 253–54.

We find the circuit court did not abuse its discretion in enforcing the $45,000
judgment. At the damages hearing, counsel for Williams initially requested
$25,000 in damages. Immediately after, counsel amended the request and
indicated there may be a setoff. The circuit court stated it had already "filled in the
blank" for the order but would correct the damages amount at a later date.
Nonetheless, the circuit court entered a judgment on March 21 awarding Williams
$25,000; on March 23 and 28, it entered judgments correcting the award to
$45,000. In its order denying Masaryk's motion to set aside the default judgment,
the circuit court clearly indicated it entered multiple judgments as the result of its
own clerical error. Based on the foregoing, the circuit court was within its
discretion in filing an amended order correcting an "oversight or omission" in
writing in the requested damages amount. See Rule 60(a), SCRCP ("Clerical
mistakes in judgments, orders or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if any, as the court
orders."). Further, the circuit court only changed the award of damages to conform
to what was requested at the hearing and did not otherwise alter the scope of the
judgment against Masaryk. See Dion, 316 S.C. at 230, 449 S.E.2d at 253–54
("While a court may correct mistakes or clerical errors in its own process to make
it conform to the record, it cannot change the scope of the judgment.").

Accordingly, the decision of the circuit court is

AFFIRMED.1

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.

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