State v. Magruder

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

State of South Carolina ex rel. Robert M. Ariail,
Solicitor, Thirteenth Judicial Circuit, Respondent,

v.

Eighty-Eight One Hundred Forty-Eight Dollars and
45/100th ($88,148.45), Three Hundred Twenty-Two
($322.00) Dollars and Eighty Dollars ($80.00) and
Contents of Safe Deposit Box 22031, Moon Magruder at
Wachovia Bank contents Defendant Property and Moon
Cha Magruder, Interested Party, Defendants,

Of Whom Moon Cha Magruder is the Appellant.

Appellate Case No. 2010-169267

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Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge
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Unpublished Opinion No. 2012-UP-388
Heard May 9, 2012 – Filed June 27, 2012
Withdrawn, Substituted and Refiled September 19, 2012

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AFFIRMED
__________
Kenneth P. Shabel and John R. Holland, both of
Spartanburg, for Appellant.

Sylvia Paris Harrison, Thirteenth Judicial Circuit
Solicitor's Office, of Greenville, for Respondent.

PER CURIAM: Moon Cha Magruder appeals the circuit court's order refusing to
vacate a default judgment entered against her and her property in the State's civil
forfeiture action. She argues the circuit court erred in failing to find the solicitor's
Affidavit for Service by Publication (Affidavit) was fraudulent. We affirm.

"Motions for relief under Rule 60(b) are within the [circuit] court's discretion, and
this court will not reverse the [circuit] court absent an abuse of discretion."
Hillman v. Pinion, 347 S.C. 253, 255, 554 S.E.2d 427, 429 (Ct. App. 2001). "An
abuse of discretion in setting aside a default judgment occurs when the judge
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." Roberson v. S. Fin. of S.C., Inc., 365 S.C. 6, 9, 615 S.E.2d 112,
114 (2005) (quoting In re Estate of Weeks, 329 S.C. 251, 259, 495 S.E.2d 454, 459
(Ct. App. 1997)).

Magruder's sole basis for setting aside the default judgment is that representations
made by Assistant Solicitor Harrison in her Affidavit to the effect that she had
"exhausted all known avenues to locate" Magruder is false and fraudulent.

Section 15-9-710 of the South Carolina Code (2005) authorizes the issuance of an
order for service by publication when it appears by affidavit to an issuing officer
that (1) the defendant or interested party is a resident of this state but cannot, after
due diligence, be found within the state, and a cause of action exists against him; or
(2) he is a non-resident but has property located within the state, and the state has
jurisdiction over the subject of the action.1 When the issuing officer is satisfied
with the affidavit, his decision to issue the order of publication is final, absent
fraud or collusion. Wachovia Bank of S.C., N.A. v. Player, 341 S.C. 424, 428-29,
535 S.E.2d 128, 130 (2000). Magruder does not claim collusion.
1
We note a suit for forfeiture of property is a civil action in rem. Pope v. Gordon,
359 S.C. 572, 581, 598 S.E.2d 288, 293 (Ct. App. 2004), aff'd, 369 S.C. 469, 633
S.E.2d 148 (2006). Section 15-9-710 applies to actions in rem as well as to actions
in personam. Hendrix v. Hendrix, 296 S.C. 200, 203, 371 S.E.2d 528, 530 (1988).
A party asserting the fraudulent nature of a statement must demonstrate:

(1) a representation; (2) the falsity of the representation;
(3) the materiality of the representation; (4) knowledge of
its falsity, or reckless disregard for its truth or falsity; (5)
intent that the representation be acted upon; (6) the
hearer's ignorance of the falsity; (7) the hearer's reliance
on its truth; (8) the hearer's right to rely thereon; and (9)
the hearer's consequent and proximate injury.

First Union Mortg. Corp. v. Thomas, 317 S.C. 63, 71, 451 S.E.2d 907, 912 (Ct.
App. 1994).

We affirm,2 finding even if the statements Magruder identified in the Affidavit
were inaccurate, she failed to establish fraud. In challenging the Affidavit,
Magruder established that she was represented by counsel in her criminal cases for
the duration of this civil action and that the criminal division of the Solicitor's
office not only knew about but communicated with her counsel regarding the
criminal actions. On the other hand, Assistant Solicitor Harrison argues the
printouts attached to the Affidavit do not indicate that Harrison, who practiced in
the civil division, had access to information concerning Magruder's criminal
counsel. We reject the State's argument. The State, in particular the Solicitor, is
charged with knowledge of whatever facts were known to Harrison as well as
whatever facts were known to Harrison's fellow assistant solicitors. See Crystal
Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 309, 257 S.E.2d
496, 497 (1979) ("It is well established that a principal is affected with constructive
2
In reaching the merits of this issue, we find meritless the State's argument that a
two-year statute of limitations barred Magruder's motion to reopen the case. An
aggrieved party must commence a civil action "upon a statute for a forfeiture or
penalty to the State" within two years. S.C. Code Ann. §§ 15-3-20, -550 (2005).
"A civil action is commenced when the summons and complaint are filed with the
clerk of court if actual service is accomplished within one hundred twenty days
after filing." § 15-3-20(B). To the extent a civil action was commenced in this
matter, the State commenced it on November 11, 2008, with the filing of its
summons and complaint. Magruder's June 11, 2010 filing was a motion in an
existing case, not pleadings commencing an independent civil action, as in
Hackworth v. Greenville County, 371 S.C. 99, 102, 637 S.E.2d 320, 322 (Ct. App.
2006). Accordingly, the statute of limitations did not bar Magruder's motion.
knowledge of all material facts of which his agent receives notice while acting
within the scope of his authority."); see also Michigan v. Jackson, 475 U.S. 625,
634 (1986), overruled on other grounds by Montejo v. Louisiana, 556 U.S. 778
(2009) (". . . Sixth Amendment principles require that we impute the State's
knowledge from one state actor to another.").

We note South Carolina requires a movant seeking relief under Rule 60(b)(3) to
establish extrinsic fraud. See Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 20, 594
S.E.2d 478, 483 (2004) ("South Carolina maintains the distinction between
extrinsic and intrinsic fraud, even when the allegations are raised through a Rule
60(b)(3) motion filed within one year of the entry of judgment."); see also
Chewning v. Ford Motor Co., 354 S.C. 72, 80, 579 S.E.2d 605, 610 (2003)
(requiring extrinsic fraud as a basis for vacating a judgment (citing Bryan v. Bryan,
220 S.C. 164, 167-68, 66 S.E.2d 609, 610 (1951))). Although at oral argument
Magruder's counsel opined the fraud alleged in this case was intrinsic, we need not
reach this distinction because (1) fraud is Magruder's sole theory for seeking relief
and (2) we see no fraud of either sort.

Under the circumstances of this case, it seems that ordinary prudence would have
led Assistant Solicitor Harrison to have inquired of her fellow assistant solicitor
handling the criminal cases as to his or her knowledge of Magruder's whereabouts.
The countervailing argument is that she showed reasonable diligence to serve
Magruder at the only address Magruder furnished officers at the time of her arrest
and that she had listed for her bond. In her challenge, Magruder makes no attempt
to demonstrate where she resided at the time service by certified mail was
attempted, nor has she shown that the person who signed for the mail at the New
York address was not authorized under Rule 4(d)(8), SCRCP,3 to receipt for it.
She simply states in her affidavit that she was not staying at the residence at the
time of the attempted service. Moreover, she has not shown that as to the
Solicitor's office, her last known address was not the New York address. Finally,
Magruder does not contend her attorney had authority to accept service of the
forfeiture suit papers, or that contacting her attorney would have led to the
disclosure of her "true" residence. We, therefore, hold that fraud has not been
shown.

3
Rule 4(d)(8) requires the trial court to set aside a default judgment "pursuant to
Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return
receipt was signed by an unauthorized person."
While we heartily disagree with the State's characterization of Magruder's
argument on appeal as "frivolous," Magruder failed to demonstrate the State acted
either recklessly or intentionly in making the inaccurate statements in the
Affidavit. Accordingly, Magruder failed to establish fraud in the procurement of
the order of publication, and we must affirm the circuit court's decision not to set
aside the default judgment.

AFFIRMED.

PIEPER and GEATHERS, JJ., and CURETON, A.J., concur.