Guerry v. Agnew

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

Jay and Meri
Guerry, and Silo Oaks, LLC, Plaintiffs,

v.

James Agnew and
Virginia Agnew d/b/a  Agnew Arabians, Appellants,

v.

Guerry and
Guerry, LLC; Marsha Wright; The Marsha Wright Group, LLC, d/b/a Wright Group
Realty; Century 21 Bob Capes Realtors; and Century 21, Third-Party
Defendants,

Of Whom Century
21 is Respondent.

Appeal From Anderson County

Alexander S. Macaulay, Circuit Court
Judge

Unpublished Opinion No. 2012-UP-182

Submitted March 1, 2012 – Filed March 14,
2012   

AFFIRMED

Matthew W. Christian and W. Harold
Christian, Jr., both of Greenville, for Appellants.

Troy A. Tessier and J. Theodore Gentry, both
of Greenville, for Respondent.

PER CURIAM: James
Agnew and Virginia Agnew, d/b/a Agnew Arabians (Agnew Arabians), appeal the
circuit court's ruling denying their motion for entry of default and allowing
Century 21 Real Estate, LLC, (Century 21) to file a late answer, arguing the
circuit court (1) erroneously relied upon Rule 55(c), SCRCP, instead of Rule
6(b), SCRCP, and (2) failed to find good cause in support of its ruling.  We
affirm.[1]. 

1.  We
disagree with Agnew Arabians that the circuit court erroneously relied upon
Rule 55(c), SCRCP, for its ruling.  Although the order entered by the circuit
court does not explicitly reference the rule relied upon for its ruling, the
hearing transcript indicates the court acknowledged that Rule 55(c), SCRCP, did
not apply because default had not yet been entered.  Accordingly, this argument
is without merit. 

2.  Rule 6(b), SCRCP, states that "[w]hen by these
rules . . . an act is required or allowed to be done at or within a specified
time, . . . the court . . . may at any time in its discretion . . . upon motion
made after the expiration of the specified period, for good cause shown, permit
the act to be done."  A circuit court's decision to allow an enlargement
of time pursuant to Rule 6(b), SCRCP, is within the discretion of the circuit
court and will not be disturbed "unless there is a clear showing of an
abuse of discretion."  Mauro v. Clabaugh, 299 S.C. 184, 191, 383
S.E.2d 244, 249 (Ct. App. 1989). 

We find the circuit
court did not abuse its discretion by denying Agnew Arabians' motion for the
entry of default and allowing Century 21 to file a late answer.  Although the
circuit court included no specific finding of good cause in its order denying
the motion for entry of default, the evidence presented by Century 21 supported
the circuit court's ruling.  Century 21 submitted an affidavit indicating that,
after reviewing the third-party complaint, it sent a letter to Agnew Arabians
requesting that it dismiss them from the action because none of the allegations
involved Century 21.    Without responding to the letter, Agnew Arabians
filed a motion for the entry of default.  Shortly after receiving the motion
and before the court entered default, Century 21 filed its answer.  After
determining Agnew Arabians would suffer no prejudice from allowing Century 21
to file an answer and that the entry of default would be too harsh a sanction
given the circumstances, the circuit court did not abuse its discretion by
denying Agnew Arabians' motion to enter default and allowing Century 21 to file
a late answer. 

AFFIRMED.

PIEPER,
KONDUROS, and GEATHERS, JJ., concur.

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