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2008-UP-224 - Roberson v. White

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


Helen K. Roberson, Respondent,

v.

Arthur White, Ben Milligan, Betty
Manigault, William Milligan,
Yvonne Capers and Isaiah
Washington (if he is alive), John
Doe, adults and Richard Roe,
infants, insane persons,
incompetents, being fictitious
names designating as a class any
person, who may be an heir,
distributee, legatee, devisee, widow,
widower, assignee, administrator,
executor, personal representative,
creditor, successor, issue and
alienee of Cain Bryan, Cain Bryan, Jr.,
Ella Bryan Milligan, Arthur Milligan,
Manzie Milligan, Betsy Milligan
Washington, Martha Grant, Sonnie
Miligan, Jane Bryan Capers, Earnest
Capers, Annie Bryan White, Jim
White, Laurence White, Elijah Cody
White, Hanna Bryan, Rachael Bryan,
Joseph Bryan, Elizabeth Bryan,
Mansy Bryan, Louisa Bryan
Washington, Isaiah Washington
(if he is deceased), Carolina Bryan
Brown and Loretta Bryan Williams,
deceased and all other persons or legal
ntities, known and unknown, owning,
having and claiming any right, title
and interest in the parcels of land
described in the Complaint herein or
any part thereof, Defendants,

of whom Yvonne Capers is the Appellant.


Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity


Unpublished Opinion No. 2008-UP-224
Submitted April 1, 2008 – Filed April 11, 2008


AFFIRMED


John J. Dodds, III, of Mt. Pleasant; for Appellant.

Robert A. Kerr, and Brendan P. Langendorfer,

of Mt. Pleasant; for Respondent.

PER CURIAM: Yvonne Capers appeals the Master-in-Equity’s refusal

to grant her a new trial or relief from judgment relating to a service of process by publication, ensuing default judgment, and sale of heirs property.  We affirm.[1]

FACTS

At the center of this action are three parcels of unimproved property (Property) located along Highway 17 North in Charleston County.  Ernest Capers owned an undivided one-sixth interest in the Property.  Ernest Capers died November 19, 1998.  Appellant Yvonne Capers (Capers) is Ernest Capers’ widow and sole heir.    

On November 5, 2002, Respondent Helen Roberson (Roberson) filed an action seeking a judicial declaration that she was the fee simple title owner of the Property.  Roberson’s counsel at that time, Russell Brown (Brown), filed a Motion for Service by Publication supported by an Affidavit of Publication.  In the supporting affidavit, Brown swore neither he nor Roberson knew the address or residence of the Defendants, including the widow of Ernest Capers.  The affidavit also stated the Defendants’ “place of residence… cannot with reasonable diligence be ascertained” by Brown or Roberson.  The affidavit further stated the nature of the declaratory action sought and the Defendants, including the widow of Ernest Capers, were proper and necessary parties to the action.  The Clerk of Court for Charleston County granted an Order of Publication on November 5, 2002.  A notice which included Yvonne Capers’ name along with the names of other Defendants was printed in the Moultrie News three times during November 2002.  

On December 9, 2003, the circuit court found Capers had been properly served, failed to respond, and was therefore in default.  The circuit court referred the action to the Master-in-Equity (Master).  A hearing was held before the Master on August 30, 2004.  Thereafter the Master issued a Judgment of Sale and Distribution clearing title to the Property and ordering the Property be sold.  Capers did not know of the hearing and did not appear; however, a fellow Defendant, Arthur Milligan, Jr., was present and represented by counsel.  Milligan submitted evidence regarding the fair market value of the Property.    

On January 9, 2006, Roberson purchased the Property.  Near the end of September 2006, Roberson’s attorney, Louis Moore (Moore), called Capers’ residence.  On September 28, 2006, Moore delivered a check for $34,037.73, representing Capers’ share of the Property’s net sale proceeds, to Capers’ attorney.  Six days later Capers’ attorney returned the check to Moore and filed a motion pursuant to Rules 59 and 60, SCRCP, for new trial or relief from judgment on the ground Capers had never been lawfully served.  The Master heard Capers’ motion on November 21, 2006, and subsequently denied the motion. The Master also denied Capers’ Rule 59(e) Motion to Alter or Amend Judgment.  Capers appealed. 

STANDARD OF REVIEW

The grant or denial of new trial motions and motions under Rule 60(b) lie within the sound discretion of the judge. Stevens v. Allen, 336 S.C. 439, 446, 520 S.E.2d 625, 628-29 (Ct. App. 1999); Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 17-18, 594 S.E.2d 478, 482 (2004).  Our standard of review, therefore, is limited to determining whether there was an abuse of discretion.  Raby Constr., L.L.P., 358 S.C. at 18, 594 S.E.2d at 482.  “An abuse of discretion occurs when there is an error of law or a factual conclusion which is without evidentiary support.” Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997).

LAW/ANALYSIS

Capers appeals the Master’s refusal to grant her motion for a new trial or relief from judgment.  In her affidavit to the Master, Capers stated she and her late husband had resided in the same residence in Awendaw for the last thirty years.  During that time, her telephone number and listing in the telephone directory under William E. Capers has not changed.  Capers contends she was never served or properly notified of the reference hearing or sale of the Property.

An order for service by publication may be issued pursuant to Section 15-9-710 of the South Carolina Code (Supp. 1999) when an affidavit, satisfactory to the issuing officer, is made stating that the defendant, a resident of the state, cannot, after the exercise of due diligence, be found, and that a cause of action exists against him. S.C. Code Ann. § 15-9-710(3) (Supp. 1999). 

“Generally, absent fraud or collusion, once the issuing officer is satisfied with the supporting affidavit, the decision to order service by publication is final unless the order of publication is premised upon a facially defective affidavit.” Brown v. Malloy, 345 S.C. 113, 118, 546 S.E.2d 195, 197 (Ct. App. 2001) (citing Wachovia Bank of S.C. v. Player, 334 S.C. 200, 204, 512 S.E.2d 129, 131 (Ct. App. 1999), rev’d on other grounds, 341 S.C. 424, 535 S.E.2d 128 (2000); Yarbrough v. Collins, 293 S.C. 290, 292-93, 360 S.E.2d 300, 301 (1987) (holding the Court of Appeals erroneously added the requirement that an affidavit for publication must set forth facts showing due diligence had been exercised and the court should not consider the sufficiency of the affidavit when there was no allegation the affidavit was obtained by fraud or collusion); Montgomery v. Mullins, 325 S.C. 500, 506, 480 S.E.2d 467, 470 (Ct. App. 1997) (“the trial court was without authority to overrule the finding of the clerk of court that the Mullinses could not, ‘after due diligence, be found in the County and State of their last known residence’”); Miles v. Lee, 319 S.C. 271, 274, 460 S.E.2d 423, 425 (Ct. App. 1995) (holding the affidavit for publication was facially defective when it named Kenneth Wayne Lee as the defendant and person to be served although Robert Lewis Miles, Sr. was the actual defendant in the adoption/termination of parental rights proceeding)).

Capers argues the Affidavit of Publication is facially defective because her name does not appear in the affidavit.  Although the affidavit does not mention Capers by name, it includes Capers as one of the Defendants:

“…joined in this cause under the fictitious names of John Doe, adults, and Richard Roe, infants, insane persons, and incompetents, being fictitious names, designating as a class any person or legal entity who may be an heir, distributee [sic], legatee, devisee, widow, …of… Ernest Capers, …and all other persons or legal entities, known and unknown, owning, having and claiming any right, title and interest in the parcels of land.”

Capers is also specifically listed in the caption of the affidavit.  In Miles v. Lee, this court found an affidavit was facially defective[2] when “it purported to show due diligence in ascertaining the whereabouts of someone other than the person to be served.” 319 S.C. 271, 274, 460 S.E.2d 423, 425 (Ct. App. 1995).  No such situation exists in the present case.  Indeed, Roberson’s counsel was able to locate addresses and mail a Notice of Hearing to twenty-two other Defendants.  Capers has not presented any evidence[3] Roberson or her counsel attempted to intentionally exclude Capers from the proceedings.

In her brief to this court, Capers also argues it is clear no effort was made to locate her.  Capers cites the fact that the Complaint, Affidavit of Publication, and Order of Publication were all filed on the same day.  This argument also fails.  Section 15-9-710 prescribes no timelines or routine to follow when filing for service by publication. S.C. Code Ann. § 15-9-710 (Supp. 1999).  “All that this section requires is, that it be made to appear by affidavit to the satisfaction of the officer who directs the publication, that the defendant has property in the State, that he cannot be found therein after due diligence, and that a cause of action exists against him.” Yates v. Gridley, 16 S.C. 496, 499 (1882).  The statute does not specify the character of the facts and circumstances which must be stated in the affidavit or the quantity of evidence necessary to satisfy the officer ordering publication.  Yarbrough, 293 S.C. at 292, 360 S.E.2d at 301 (1987) (citing Yates, 16 S.C. at 500).  The publication affidavit can suffice even if it contains only a conclusory statement that due diligence was exercised[4] and does not set forth facts showing due diligence had, in fact, been exercised, so long as the affidavit satisfies the issuing officer.  Yarbrough, 293 S.C. at 292-93, 360 S.E.2d at 301. 

Accordingly, the order of the Master is

AFFIRMED.

ANDERSON, SHORT, and THOMAS, JJ., concur.


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

[2] Hopkins v. Brown is another South Carolina case in which the courts have dealt with the issue of whether affidavits in support of notice by publication were facially defective. 2006-UP-276 (Ct. App. filed June 8, 2006).  In that case, the Respondent filed an affidavit indicating she could not locate the Appellant, and a Sherriff’s Office filed an affidavit indicating they attempted to serve the Appellant but were unable to do so.  This court found, “[t]here is nothing facially defective about these documents nor is there any testimony in the record that would indicate the information contained therein was untrue.”  

[3] “The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle her to relief.” BB&T v. Taylor, 369 S.C. 548, 552, 633 S.E.2d 501, 503 (2006).  The burden of presenting evidence of fraud or collusion, for example, through the testimony of the clerk who ordered the publication, falls to the Appellant. Wachovia Bank of S.C. v. Player, 341 S.C. 424, 429, 535 S.E.2d 128, 130, n.5 (2000).

[4] “When the record is silent, the court will presume that what should have been done was done.”  Miles v. Lee, 319 S.C. at 274, 460 S.E.2d at 425 (citing Fouche v. Royal Indemnity Co. of N.Y., 217 S.C. 147, 60 S.E.2d 73 (1950)).