THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
BB&T of South Carolina, Appellant,
Patricia W. Fuller, Respondent.
Appeal From Greenville County
Larry R. Patterson, Circuit Court Judge
Unpublished Opinion No. 2004-UP-156
Submitted February 9, 2004 – Filed March 10, 2004
John William Ray, of Greenville, for Appellant
Patricia W. Fuller, of Greenville, for Respondent.
PER CURIAM: Branch Banking and Trust Company (“BB&T”) appeals an order of the Circuit Court setting aside a default judgment against Patricia W. Fuller (Fuller). We conclude the circuit court abused its discretion in setting aside the judgment and reverse.
In May 1994, Fuller obtained a $65,000 unsecured line of credit from BB&T. Under the terms of the line of credit instrument, Fuller was obligated to repay the balance owed under the credit line in a variable number of monthly installments as a percentage of the balance owed BB&T.
Beginning around July 2001, Fuller stopped making payments on the line of credit. After Fuller refused BB&T’s demands for payment, BB&T commenced the present action seeking a judgment against Fuller for the outstanding balance due on the credit line. At the time of Fuller’s default, she still owed $19,381.49. BB&T requested a judgment in that amount plus interest at the contract rate of 8.75 percent dating from July 2001.
On June 17, 2002, the trial court entered default judgment in favor of BB&T for $24,196.98. The trial court’s order notes that, though BB&T’s summons and complaint was personally served on Fuller, she had failed to respond.
Sometime in July 2002, Fuller sent a letter to the trial court asking that the default judgment be set aside because she had timely served her answer prior to the judgment. The letter was personally addressed to Circuit Judge Larry R. Patterson. It is stamped as having been received by the Greenville County Clerk of Court on July 16, 2002. The record, however, contains no certificate of service indicating BB&T was properly served with a copy of Fuller’s letter, nor is there any indication on the face of the letter that Fuller attempted to provide BB&T a copy of the letter or otherwise notify it of the request made to Judge Patterson.
With no notice or opportunity to be heard, Judge Patterson thereafter rescinded his June 17, 2002, entry of default judgment by order filed July 16, 2002. BB&T claims it was not aware of the trial court’s decision to set aside the default judgment until it received a copy of the order on July 17, 2002. In its entirety, the order setting aside judgment reads:
The Order dated June 17, 2002 is rescinded. The defendant tried to serve Plaintiff’s counsel by registered mail; however, Plaintiff’s counsel refused delivery. Pursuant to Rule 5, SCRCP, service subsequent to the original summons and complaint may be served by mail and is complete upon mailing (Citation omitted). Therefore, The Court hereby rescinds the Order of June 17, 2002.
BB&T now appeals this order, arguing inter alia, that it was not afforded an opportunity to rebut Fuller’s claim that BB&T was properly served with Fuller’s answer to the original complaint.
STANDARD OF REVIEW
A motion to vacate a judgment is addressed to the sound discretion of the trial court, and it’s ruling will not be reversed on appeal absent a clear showing of abuse of that discretion. Ledford v. Pennsylvania Life Ins. Co., 267 S.C. 671, 674-75, 230 S.E.2d 900, 902 (1976); Lowe’s of Georgia, Inc. v. Constantino, 288 S.C. 106, 109, 341 S.E.2d 382, 383 (Ct. App. 1986). An abuse of discretion arises when an order of a lower court on a motion to vacate a judgment was controlled by an error of law or when the order is without evidentiary support. Ledford, 267 S.C. at 675, 230 S.E.2d at 902.
Based on our review of the record before us, we conclude the trial court abused its discretion in setting aside the June 17, 2002, entry of default judgment.
The trial court apparently treated Fuller’s July 2002 letter as a motion to set aside the judgment pursuant to Rule 60 (b), SCRCP. After default judgment has been entered, the trial court may set aside that judgment in accordance with Rule 60(b), SCRCP. Rule 55(c), SCRCP. Rule 60(b) provides that “[o]n 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” due to mistake, inadvertence, excusable neglect, newly discovered evidence, fraud or other similar reasons. (emphasis added). Notwithstanding, such a motion may not be granted without affording an affected party the procedural due process guarantee of notice and opportunity to be heard. “[I]t is fundamental that no judgment or order affecting the rights of a party to the cause shall be made or rendered without notice to the party whose rights are affected.” Tryron Fed. Sav. & Loan Ass’n v. Phelps, 307 S.C. 361, 362, 415 S.E.2d 397, 398 (1992) (citing Insurance Co. of North America v. Hyatt, 290 S.C. 159, 348 S.E.2d 532 (1986)). “Generally, a person against whom a judgment or order is taken without notice may rightly ignore it and may assume that no court will enforce it against his person or property.” Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561 S.E.2d 659, 661 (Ct. App. 2002). The requirements of due process not only include notice, but also an opportunity to be heard in a meaningful way, and judicial review. S.C. Dep’t of Soc. Servs. v. Holden, 319 S.C. 72, 78, 459 S.E. 2d 846, 849 (1995).
It is clear from the record that the trial court failed to afford BB&T the opportunity to be heard on Fuller’s claim that she was not in default because she tried to serve BB&T’s attorney by registered mail and the mail was refused. Because the trial court abused its’ discretion in granting relief to Fuller under Rules 55(c) and 60(b) by rescinding its earlier entry of default judgment, the trial court’s order setting aside the default judgment is reversed. The effect of this reversal is to vacate the trial court’s order of July 11, 2002 and filed on July 16, 2002.
HUFF and STILWELL, JJ., and CURETON, AJ., concur.