Andrey Gergel v. Tina B. Opoulous

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

Andrey Gergel and Sonja M. Wyatt, Respondents,

v.

Alexander Opoulous, III, Tina B. Opoulous, Sebrina
Leigh Jones, and Luxury Land and Homes, Inc.,
Defendants,

Of whom Tina B. Opoulous is the Appellant.

Appellate Case No. 2023-001762

Appeal From Dorchester County
Maite Murphy, Circuit Court Judge

Unpublished Opinion No. 2025-UP-063
Submitted February 1, 2025 – Filed February 26, 2025

AFFIRMED

Stephan Victor Futeral, of Futeral & Nelson, LLC, of
Mount Pleasant, for Appellant.

George Hamlin O'Kelley, III, of Buist Byars & Taylor,
LLC, of Mount Pleasant, for Respondents.
PER CURIAM: In this contract case, Tina B. Opoulous (Appellant), individually
and as personal representative of the Estate of Alexander Opoulous, III, appeals the
trial court's orders awarding Andrey Gergel and Sonja M. Wyatt (collectively,
Respondents) $217,382.95 in damages and declining to grant her motion for relief
from judgment. On appeal, Appellant argues the trial court abused its discretion in
denying her motion to set aside the judgment because the parties failed to comply
with mandatory pre-trial mediation requirements, her motion to set aside the
judgment was timely, she had a meritorious defense, and the prejudice to the
judicial system outweighed prejudice to Respondents. We affirm pursuant to Rule
220(b), SCACR.

We hold the trial court did not abuse its discretion in denying Appellant's motion
for relief from judgment because the trial court properly applied the South Carolina
Rules of Alternative Dispute Resolution (SCRADR) in choosing not to impose
discretionary sanctions. See Raby Const., L.L.P. v. Orr, 358 S.C. 10, 17, 594
S.E.2d 478, 482 (2004) ("Whether to grant or deny a motion under Rule 60(b) lies
within the sound discretion of the [trial court]."); id. at 18, 594 S.E.2d at 482
(stating appellate review of the denial of a Rule 60(b) motion "is limited to
determining whether there was an abuse of discretion"); Wilson v. Dallas, 403 S.C.
411, 425, 743 S.E.2d 746, 754 (2013) ("An abuse of discretion occurs when a
[trial] court's order is controlled by an error of law or there is no evidentiary
support for the [trial] court's factual conclusions."); Rule 3(a), SCRADR (stating
"[a]ll civil actions filed in the circuit court . . . are subject to court-ordered
mediation" unless an exception applies or the case has been granted an exemption);
Rule 10(b), SCRADR ("If any person or entity subject to the ADR Rules violates
any provision of the ADR Rules without good cause, the court may, on its own
motion or motion by any party, impose upon that party, person or entity, any
lawful sanctions . . . .").

We further hold the trial court did not abuse its discretion in denying Appellant's
motion for relief from judgment because we believe Respondents would be
prejudiced if they were required to reopen the case. See Rouvet v. Rouvet, 388 S.C.
301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) ("In determining whether to grant
relief under Rule 60(b)(1), the court must consider the following factors: '(1) the
promptness with which relief is sought; (2) the reasons for the failure to act
promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the
other party.'" (quoting Mictronics, Inc. v. S.C. Dep't of Revenue, 345 S.C. 506, 511,
548 S.E.2d 223, 226 (Ct. App. 2001))). We find Appellant timely filed her motion
for relief from judgment because she filed it within thirty days from the entry of
judgment. See Rule 60(b), SCRCP (stating a motion for relief from judgment
under Rule 60(b)(1) "shall be made within a reasonable time, and . . . not more
than one year after the judgment . . . ."); Coleman v. Dunlap, 306 S.C. 491, 495,
413 S.E.2d 15, 17 (1992) ("When a [Rule] 60(b) motion is made within one year of
the original judgment, whether the motion was made within a reasonable time after
discovery of the mistake is within the sound discretion of the trial [court]."). We
further find Appellant had a meritorious defense because Respondents knew about
"moisture damage" and structural problems to the property based on the
pre-closing home inspection. See McLaughlin v. Williams, 379 S.C. 451, 455,
458-59, 665 S.E.2d 667, 669, 671-72 (Ct. App. 2008) (holding home buyers did
not have a right to rely on a disclosure statement that indicated no problems with
"water seepage, leakage, dampness or standing water" in part because the
pre-closing home inspection report and CL-100 revealed "moisture damage" but
buyers still moved into the property); McClurg v. Deaton, 380 S.C. 563, 575, 671
S.E.2d 87, 94 (Ct. App. 2008) (stating a meritorious defense "need be only one
which is worthy of a hearing or judicial inquiry because it raises a question of law
deserving of some investigation and discussion or a real controversy as to real facts
arising from conflicting or doubtful evidence" (quoting Thompson v. Hammond,
299 S.C. 116, 120, 382 S.E.2d 900, 903 (1989))). However, we find that not only
did Appellant have the opportunity to raise this defense at trial, she did raise the
same general argument she now asserts as a meritorious defense. We find
Respondents would be prejudiced by having to reopen a case that has already been
litigated and decided on the merits by a jury; therefore, we hold the trial court did
not abuse its discretion in denying Appellant's motion for relief from judgment.
See Raby Const., L.L.P., 358 S.C. at 17, 594 S.E.2d at 482 ("Whether to grant or
deny a motion under Rule 60(b) lies within the sound discretion of the [trial
court]."); id. at 18, 594 S.E.2d at 482 (stating appellate review "is limited to
determining whether there was an abuse of discretion"); Wilson, 403 S.C. at 425,
743 S.E.2d at 754 ("An abuse of discretion occurs when a [trial] court's order is
controlled by an error of law or there is no evidentiary support for the [trial] court's
factual conclusions.").

AFFIRMED. 1

THOMAS, HEWITT, and CURTIS, JJ., concur.

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