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2009-UP-028 - Gaby v. Kunstwerke Corp.

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

Richard Gaby and Barbara Van Andel Gaby, Respondents,

v.

Kunstwerke Corp. and J. Scott Kunst, Appellants.


Appeal From Greenville County
 Edward W. Miller, Circuit Court Judge
 G. Edward Welmaker, Circuit Court Judge
 Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No.  2009-UP-028
Submitted November 1, 2008 – Filed January 14, 2009


AFFIRMED


J. Scott Kunst, Pro Se, of Simpsonville. 

James G. Carpenter, Jennifer J. Miller, and Lewis Warren Clayton, all of Greenville, for Appellant Kunstwerke Corporation.

Joel M. Bondurant, Jr. and T. S. Stern, both of Greenville, for Respondents.

PER CURIAM:  Kunstwerke Corporation and J. Scott Kunst appeal the circuit court’s (1) entering default, (2) denying the motion for relief from default, (3) entering a default judgment, and (4) determining damages.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Issues 1, 2, & 3: Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004) (“It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court.”); Dixon v. Besco Eng’g, Inc., 320 S.C. 174, 178, 463 S.E.2d 636, 638 (Ct. App. 1995) (holding an appellant’s argument that the entry of default should be reversed because the trial court neglected to make specific findings of certain factors was not preserved for appellate review because the appellant failed to raise the issue to the trial court in a post-trial motion); Roberson v. S. Fin. of S.C., Inc., 365 S.C. 6, 9, 615 S.E.2d 112, 114 (2005) (finding the decision whether to set aside an entry of default or a default judgment lies solely within the sound discretion of the trial court and that decision will not be disturbed on appeal absent a clear showing of an abuse of that discretion); Rule 12(a), SCRCP (“A defendant shall serve his answer within 30 days after the service of the complaint upon him, unless the [c]ourt directs otherwise . . . .”); Rule 55(a), SCRCP (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default upon the calendar . . . .”); Stark Truss Co. v. Superior Constr. Corp., 360 S.C. 503, 509, 602 S.E.2d 99, 102 (Ct. App. 2004) (“A plain reading of Rule 55(a) allows entry of default when a pleading or defense is asserted in a manner noncompliant with the Rules of Civil Procedure. To hold otherwise would render the requirements in Rule 12(a), SCRCP, meaningless.”); Id. (holding although the appellants’ late answer amounted to a pleading filed prior to entry of default, it did not comply with the time requirements of Rule 12(a), SCRCP, and thus, the court’s entry of default was proper because it was not a valid pleading or defense as provided by the Rules of Civil Procedure); Roberson, 365 S.C. at 9-10, 615 S.E.2d at 114 (finding the standard for granting relief from an entry of default is good cause under rule governing default judgments, while the standard is more rigorous for granting relief from a default judgment under rule governing relief from judgment); Hill v. Dotts, 345 S.C. 304, 309, 547 S.E.2d 894, 897 (Ct. App. 2001) (providing the relevant factors in determining whether a default judgment should be set aside are (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 parties); Stark Truss Co., 360 S.C. at 510, 602 S.E.2d at 103 (affirming the circuit court’s refusal to set aside the entry of default when one of the appellants informed the circuit court he had no good reason, other than depression, for failing to act when he was served with the summons and complaint); McCall v. A-T-O, Inc., 276 S.C. 143, 146, 276 S.E.2d 529, 530 (1981) (“This Court has never held a layman to a lesser standard than attorneys.”); Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988) (“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.”); and Issue 4: Howard v. Holiday Inns, Inc., 271 S.C. 238, 242, 246 S.E.2d 880, 882 (1978) (holding that at the damages hearing in a default judgment proceeding, the defendant may only participate by cross-examining witnesses and objecting to evidence); Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 311, 594 S.E.2d 867, 873 (Ct. App. 2004) (finding that in reviewing a damages award, this court does not weigh the evidence, but determines if any evidence supports the award).

AFFIRMED.

HEARN, C.J., and SHORT and KONDUROS, JJ., concur.


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