Foster v. Armstrong

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

Bobby Foster, Appellant,

v.

Julian Neil Armstrong, Respondent.

Appellate Case No. 2018-001497

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge
Larry B. Hyman, Jr., Circuit Court Judge

Unpublished Opinion No. 2021-UP-336
Heard June 7, 2021 – Filed September 22, 2021

AFFIRMED

Eric Marc Poulin, Lane Douglas Jefferies, and Matthew
Thomas Foss, and Roy T. Willey, IV, all of Anastopoulo
Law Firm, LLC, of Charleston; and Kenneth Thomas
David, of Arlington, Virginia, for Appellant.

Linda Weeks Gangi, of Thompson & Henry, PA, of
Conway, for Respondent.

PER CURIAM: Appellant Bobby Foster asks this court to reverse the circuit court's
finding that Appellant's service by publication on Respondent Julian Neil Armstrong
did not give the court personal jurisdiction over Respondent. Appellant contends
this led the circuit court to erroneously grant summary judgment to Respondent. We
affirm.

FACTS/PROCEDURAL HISTORY

On April 8, 2013, Appellant, driving a 2000 Dodge, had stopped for traffic on
S.C. 90 when Respondent, driving a 1995 Lexis, rear-ended him. Law enforcement
was called, and the two men provided information that was used on an accident
report—including Respondent's cell phone number. The accident report described
it this way:

[RESPONDENT] AND [APPELLANT] WERE
TRAVELING EAST ON SC 90. [APPELLANT]
STOPPED FOR TRAFFIC. [RESPONDENT] STRUCK
[APPELLANT]. [RESPONDENT] WAS DRIVING
TOO FAST FOR CONDITIONS.

Appellant later complained of "serious and painful personal injuries[,] including, but
not limited to, pain and suffering, and injuries to his back and shoulder." Appellant
allegedly missed work and suffered "loss of enjoyment of life and change in his
personality," among other listed maladies.

On July 27, 2015, Appellant filed a summons and complaint against
Respondent. On August 13, counsel for Appellant mailed a copy of the summons to
Respondent at the address listed for Respondent on the incident report. On August
31, sixteen days after a postal service notice was left at the address, USPS annotated
the summons as "Unclaimed/Max Hold Time Expired" and returned it.

The Horry County Sheriff's Office attempted service at the same address. In
an affidavit dated October 26, the deputy stated that he "made a diligent search, but
was unable to locate" Respondent. The bottom of the affidavit states: "UNABLE
TO LOCATE. NEIGHBOR ADVISED THAT SUBJECT HAS MOVED."

On November 23, Appellant filed a petition with the Horry County Court of
Common Pleas to order a summons by publication. The following day, the clerk of
court filed an order "find[ing] that it is appropriate and necessary to serve the
Defendant via publication in the daily newspaper of Defendant's last known
residence," which the order listed as the address on the accident report.
On December 24 and December 31 of 2015, and January 7 of 2016, a
summons appeared in the North Myrtle Beach Times. On March 8, 2016, Appellant
filed a motion for an entry of default. The same day, the clerk of court ordered the
entry of default and required a hearing to be scheduled on damages.

However, on July 19, attorney Linda Weeks Gangi filed a notice of
appearance on behalf of Respondent. On September 21, Respondent filed a "Motion
to Set Aside Order for Entry of Default and Order for Publication." Respondent
argued that (1) the summons did not comply with Rule 4(b), SCRCP, because it
"d[id] not notify the Defendant that if he fails to appear and defend[,] a judgment by
default will be rendered against him"; (2) the summons in the newspaper did not
include the date the initial complaint had been filed; (3) the North Myrtle Beach
Times was not an appropriate newspaper for the notice; and (4) Appellant should
have attempted to contact Respondent by telephone.

Appellant countered that both the initial summons and the published summons
alerted Respondent that (1) default judgment was a possibility; (2) "the North Myrtle
Beach Times is the closest general circulation paper to [Respondent's] last known
address[;] and [(3)] the Summons' missing date is not fatal to the publication."
Further, Appellant argued that Respondent offered no "good cause" for his motion,
as required by Rule 55(c), SCRCP.

The Honorable Benjamin H. Culbertson held a hearing October 17. On
October 21, the court signed Respondent's proposed order setting aside the entry of
default. The order stated "that this [c]ourt has no personal jurisdiction over
[Respondent] and that service of the Summons and Complaint was not properly
perfected on [Respondent]." The court filed the order on October 26.

On November 10, Appellant filed a motion to reconsider, asking for the court
to "clarify its opinion on this matter [regarding personal jurisdiction] to address the
issue of the statute of limitations." In an order filed March 23, 2017, the court
reiterated that it had "no personal jurisdiction over [Respondent]" and denied
Appellant's motion.

On March 31, 2017, Respondent filed a motion for summary judgment.
Respondent argued: "The Summons to date has never been amended. No
Acceptance of Service was ever provided to [Respondent's] attorney." Respondent
claimed the statute of limitations operated to block Appellant's suit. In his
memorandum of law in opposition to the motion, Appellant reiterated "his assertion
that [Respondent] was properly served by publication and his cause of action was
properly commenced within the statute of limitations period[.]" Appellant further
argued that Respondent had waived the statute of limitations and that public policy
called for a full trial.

On April 24, the Honorable Larry B. Hyman filed a Form 4 judgment granting
Respondent's motion. On July 7, 2017, Appellant filed a motion to reconsider. The
court denied the motion. On March 27, 2018, the court filed a Form 4 judgment. A
formal order followed on April 9. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err in holding that service by publication was ineffective
based on the lack of the date of the filing of the summons?

2. Did the circuit court err in holding the summons was ineffective based on the
lack of a specific warning of default?

3. Did the circuit court err in holding that the service by publication was flawed
because the North Myrtle Beach Times was neither a daily paper nor "a
newspaper of general circulation in Horry County"?

4. Did the circuit court err in finding that Appellant did not exercise sufficient
diligence in attempting to personally serve Respondent?

5. Did the circuit court err in granting summary judgment because of the
perceived flaws in the service by publication?

STANDARD OF REVIEW

Appellant's Issues I–IV

Appellant and Respondent disagree as to which of the Rules of Civil
Procedure governs our analysis in this case. Appellant argues that the case should
be considered under Rule 60(b), SCRCP. Respondent counters that the appropriate
rule is Rule 55(c).

We believe Rule 55(c) is the proper basis for deciding this motion. See
Sundown Operating Co. v. Intedege Indus., Inc., 383 S.C. 601, 607–08, 681 S.E.2d
885, 888 (2009) (noting that "Rule 55(c) permits a party to move to set aside the
entry of default," while "[o]nce a default judgment has been entered, a party seeking
to be relieved must do so under Rule 60(b), SCRCP" (emphasis added)).

Beyond that, both sides concede that in passing on the circuit court's decision
in this case, our standard of review is abuse of discretion. See Stark Truss Co. v.
Superior Constr. Corp., 360 S.C. 503, 508, 602 S.E.2d 99, 101 (Ct. App. 2004) ("The
decision whether to set aside an entry of default or a default judgment lies solely
within the sound discretion of the trial judge. This decision will not be reversed
absent an abuse of that discretion." (citations omitted)). "An abuse of discretion
occurs when the order was controlled by an error of law or when the order is without
evidentiary support." Id. at 508, 602 S.E.2d at 101–02.

Appellant's Issue V

Likewise, the parties largely agree on our standard of review in regards to the
circuit court's decision on the motion for summary judgment. "In reviewing an order
of summary judgment, an appellate court applies the same standard as that which the
circuit court applied in determining whether to enter the order." Helms Realty, Inc.
v. Gibson-Wall Co., 363 S.C. 334, 340, 611 S.E.2d 485, 488 (2005). Summary
judgment "shall be rendered . . . if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Rule 56(c), SCRCP.

LAW/ANALYSIS

Appellant's first four issues on appeal all concern the circuit court's ruling on
the validity of the notification by publication. The fifth ground is almost entirely
dependent on whether the circuit court should be reversed in its decision to grant
Respondent's motion to set aside the entry of default and the order for publication.
In other words, if the set-aside should have been granted, then the motion for
summary judgment should also have been granted, given that the statute of
limitations had expired.

Appellant contends that the trial court erred in deciding to set aside the entry
of default based on errors in the order of publication and the summons itself. If we
find no error in the circuit court's decision that a particular mistake in the summons
warranted setting aside the entry of default, we may affirm the circuit court solely
on that issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) ("[An] appellate court need not address remaining
issues when disposition of prior issue is dispositive[.]" (citing Whiteside v. Cherokee
Cty. Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993)). We find
no error in the circuit court's determination to set aside the entry of default based on
the omission of the filing date in the summons, and as a result, we affirm.

As a general matter, the factors for good cause under Rule 55(c) include: "(1)
the timing of [the] motion for relief; (2) whether [the defendant] has a meritorious
defense; and (3) the degree of prejudice to [the plaintiff] if relief is granted." Wham
v. Shearson Lehman Bros., 298 S.C. 462, 465, 381 S.E.2d 499, 501–02 (Ct. App.
1989). Additionally, our supreme court has provided some guidance while
discussing Rule 60, SCRCP. The court has noted "the basic legal premise that the
standard for granting relief under Rule 60(b) is more rigorous than under Rule 55(c),
and that an entry of default may be set aside for reasons that would be insufficient
to relieve a party from a default judgment." Sundown Operating Co. v. Intedge
Indus., Inc., 383 S.C. 601, 607, 681 S.E.2d 885, 888 (2009); see also id. at 608, 681
S.E.2d at 889 ("The Rule 60(b) factors are indeed relevant to a Rule 55(c) analysis,
but only insomuch as proof of any one of these factors is sufficient to show 'good
cause.'"). Rule 60(b) provides that "the court may relieve a party or his legal
representative from a final judgment, order, or proceeding" for one of five listed
reasons. One of those reasons is that "the judgment is void." Rule 60(b)(4), SCRCP.

Next, we call attention to the statute addressing notice by publication. Section
15-9-740 of the South Carolina Code (Supp. 2020) states in relevant part:

The order of publication shall direct the publication to be
made in one newspaper, to be designated by the officer
before whom the application is made, most likely to give
notice to the person to be served and for such length of
time as may be deemed reasonable not less than once a
week for three weeks. . . .

In all cases in which publication is made the complaint
must first be filed and the summons, as published, must
state the time and place of such filing.

(Emphasis added). Should the publication fail to meet the statute's requirements, the
court does not obtain personal jurisdiction over the defendant. See BB & T v. Taylor,
369 S.C. 548, 551, 633 S.E.2d 501, 503 (2006) ("A court generally obtains personal
jurisdiction by the service of a summons.").
Appellant contends in part that the circuit court erred in invalidating the
published summons based on the failure of that summons to include the timing of
the complaint's filing. We disagree.

We are mindful that our courts have cautioned against being unduly literal in
considering compliance with the publication statute. See Du Bose v. Du Bose, 90
S.C. 87, 89, 72 S.E. 645, 646 (1911) ("The rule that the statutory requirements as to
constructive service by publication must be strictly carried out does not mean that
any irregularity, however slight, is fatal." (emphasis added)).

However, we cannot ignore a clear requirement of the statute—that "the
summons, as published, must state the time and place of such filing"—that the
summons before us just as clearly did not meet. Doing so would cross the line
between interpreting the statute and rewriting it.1

Because the summons was not properly served by publication, the resulting
lack of personal jurisdiction constitutes "a meritorious defense" for the purposes of
Rule 55(c). See Taylor, 369 S.C. at 551, 633 S.E.2d at 503 ("A court generally
obtains personal jurisdiction by the service of a summons."); Wham, 298 S.C. at 465,
381 S.E.2d at 501–02 (listing the following factors to consider in determining good
cause under Rule 55(c): "(1) the timing of [the] motion for relief; (2) whether [the

1
We reject out of hand Appellant's call for this court to find that because the reason
for the statute's requirement to include the date of the filing no longer exists, the
requirement should be disregarded. See, e.g., Rhett v. Gray, 401 S.C. 478, 496, 736
S.E.2d 873, 883 (Ct. App. 2012) ("[W]hen the reason does not exist, the rule does
not apply."). We can find no support for the notion that this maxim should be applied
to statutes. It is beyond question that when the courts of our state find that a judicial
rule no longer serves its purpose, they have the ability to disregard it in certain cases
or abolish it altogether. However, to say that a court may apply that principal to a
duly enacted statute when—in its judgment alone—that statute no longer serves its
purpose would mark a breathtaking expansion of judicial review that could violate
the South Carolina Constitution. See S.C. Const. art. I, § 8 ("In the government of
this State, the legislative, executive, and judicial powers of the government shall be
forever separate and distinct from each other, and no person or persons exercising
the functions of one of said departments shall assume or discharge the duties of any
other."). If there are reasons to repeal the requirement that a notice by publication
include the date of the filing of litigation, those reasons are appropriate for
consideration by the legislature.
defendant] has a meritorious defense; and (3) the degree of prejudice to [the plaintiff]
if relief is granted").

Given our decision to affirm the circuit court's ruling, we find the motion for
summary judgment was properly granted. See Rule 56(c), SCRCP (providing that
summary judgment "shall be rendered . . . if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law").

CONCLUSION

For those reasons, the judgment of the circuit court is

AFFIRMED.

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.