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2004-UP-092 - 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Unpublished Opinion No. 2004-UP-092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 . . . .”