Bonner v. Bonner

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Tommy David Bonner, Appellant

v.

Joyce Kay Bonner, Respondent.

Appeal From Anderson County

 Barry W. Knobel, Family Court Judge

Unpublished Opinion No. 2004-UP-092

Submitted December 23, 2003 – Filed
February 13, 2004

AFFIRMED

W. Patrick Yon, of Anderson, for Appellant

William N. Epps, Jr., of Anderson, for Respondent.

PER CURIAM:  Tommy David Bonner (Husband) appeals
from the family court’s denial of his motion seeking a new trial or relief from
the Final Divorce Decree, pursuant to Rule 59 [1] and Rule 60 [2] , SCRCP.  Husband appeals, asserting that his attorney abandoned
the case.  He alleges the family court erred in ruling that the neglect of the
attorney is attributable to him.  We disagree and affirm.        

FACTS

Husband filed a divorce action on
January 12, 2001 and Wife counterclaimed on February 20, 2001.  Husband released
his initial attorney, Mr. Ronnie Treadwell, on October 9, 2001 and retained
Mr. Harold Lowery on the same day to represent him.  It appears Husband paid
Mr. Lowery $500 and thereafter made subsequent payments.  Mr. Lowery never notified
Wife’s attorney or the court that he represented Husband.  The final hearing
was rescheduled for September 12, 2002 and subsequently continued to November
21, 2002.  After an extended illness, which was well known in the Anderson County
Bar, Mr. Lowery died on November 3, 2002.  Wife’s attorney mailed notification
of the final hearing to Husband’s last known address.  Husband contends that
he never received notification. 

The case was tried before Family Court Judge
Barry W. Knobel on November 21, 2002.  Wife was present with her attorney. 
Husband was not present.  The family issued a final decree and granted Wife
relief pursuant to her counterclaim.  Husband filed a Motion for New Trial or
Relief from Judgment, pursuant to Rules 59 and 60, SCRCP, respectively.  Judge
Knobel denied the motion, finding that Husband failed to establish any excusable
neglect or inadvertence that would entitle him to the relief requested in his
motion.  This appeal follows.      

STANDARD
OF REVIEW

The grant or denial of new trial motions rests within
the discretion of the trial judge, and the decision will not be disturbed on
appeal unless the findings are wholly unsupported by the evidence or the conclusions
reached are controlled by error of law.  Vinson v. Hartley, 324 S.C.
389, 405, 477 S.E.2d 715, 723 (Ct. App. 1996).  “[M]otions for relief under
Rule 60(b) are addressed to the discretion of the court and appellate review
is limited to determining whether the trial court abused its discretion.”  Saro
Invs. v. Ocean Holiday P’ship, 314 S.C. 116, 124, 441 S.E.2d 835, 840 (Ct.
App. 1994). 

LAW/ANALYSIS

Husband alleges the family court erred in ruling that
the neglect of the attorney is attributable to the client, and argues on appeal
that Mr. Lowery abandoned the case.  Assuming the issue of abandonment was properly
raised in the trial court, we disagree. 

Generally, “the mistake inadvertence or neglect of
counsel has been held insufficient grounds for relief where default results
from inaction of counsel on behalf of the client or failure to exercise due
diligence in the protection of the client’s interest.”  Lee v. Peek,
240 S.C. 203, 125 S.E.2d 353, 358 (1962).  However, where there has been a finding
of willful and unilateral abandonment, the rule does not apply, and relief may
be granted to the party.  Graham v. Town of Loris, 272 S.C. 442, 452,
248 S.E.2d 594, 599 (1978).  In Goodson v. American Bankers Ins. Co. of Florida,
295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988), the court held that
“a party has a duty to monitor the progress of his case.  Lack of familiarity
with legal proceedings is unacceptable and the court will not hold a layman
to any lesser standard than is applied to an attorney.” 

In light of the fact that Husband was the party who
had commenced the litigation, there was an obligation on his part to monitor
the status of his case.  There is no indication from the record that he took
any responsibility or attempted to do so.  Husband’s inaction is highlighted
by the unchallenged finding of the trial court regarding Mr. Lowery’s extended illness.  Certainly, had Husband demonstrated any degree of
diligence concerning his case and its status, he would have learned of Mr. Lowery’s
illness and inability to represent Husband well prior to the scheduled final
hearing.  Such readily available knowledge would have prompted a reasonable
person to take appropriate steps to ensure representation by counsel.  Moreover,
Mr. Lowery died approximately three weeks prior to the final hearing, and during
that time period, Husband offers no explanation why he failed to take any action,
such as contacting Mr. Lowery’s office, to protect his legal interest.  Therefore,
based on the totality of the circumstances, the trial court did not abuse its
discretion in finding that Husband failed to establish excusable neglect or
inadvertence that would entitle him to relief.          

AFFIRMED.

GOOLSBY, HOWARD, and KITTREDGE, J.J., concur.   

[1]   Rule 59(a), SCRCP, states:  “A new trial may be granted to all or
any of the parties and on all or part of the issues . . . (2) in an action
tried without a jury, for any of the reasons for which rehearings have heretofore
been granted in the courts of the State.  On a motion for a new trial in an
action tried without a jury, the court may open the judgment if one has been
entered, take additional testimony, amend findings of fact and conclusions
of law or make new findings and conclusions, and direct the entry of a new
judgment.” 

[2]   Rule 60(b), SCRCP, states:  “On 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 for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect . . . .”