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2010-UP-509 - Tomlinson v. Eddie's Towing Service

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

Christopher M. Tomlinson, Appellant,

v.

Eddie's Towing Service, LLC, County Towing and Recovery, LLC, Jimmy's Automotive, and James Hoover,  Respondents.


Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge


Unpublished Opinion No.   2010-UP-509
Submitted November 1, 2010 – Filed November 19, 2010


AFFIRMED


Frank B. McMaster, of Columbia, for Appellant.

Robert N. Hill, of Newberry, and Adrian L. Falgione, of Lexington, for Respondent Eddie's Towing Service, LLC. 

PER CURIAM:  Appellant Christopher Tomlinson brought this conversion action against Eddie's Towing Service, LLC, County Towing and Recovery, LLC, Jimmy's Automotive, and James Hoover to recover damages for the impoundment of his automobile following his refusal to pay allegedly excessive towing fees.  In this appeal, Tomlinson challenges the circuit court's denial of his motion under Rule 60(b), SCRCP, for relief from a judgment denying immediate return of the automobile.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the circuit court erred in finding that the Rule 60(b)(5) motion was not timely filed:  Rule 60(b), SCRCP (requiring a motion for relief from a judgment to be made within a reasonable time); Evans v. Gunter, 294 S.C. 525, 529, 366 S.E.2d 44, 46 (Ct. App. 1988) (holding that relief from a judgment is granted for extrinsic fraud but not intrinsic fraud).       

2. As to whether the circuit court committed reversible error in failing to conclude that Tomlinson met the standard for relief under Rule 60(b)(5):  Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."); Rule 60(b)(5), SCRCP (stating that the court may relieve a party from a final judgment when "it is no longer equitable that the judgment should have prospective application"); Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 48-49, 590 S.E.2d 502, 505 (Ct. App. 2003) (stating that Rule 60(b)(5) is based on the historical power of a court of equity to modify its decree in light of subsequent conditions and that the test typically applied to determine whether an order has prospective application is whether it is executory or involves supervision of changing conduct or conditions by the court) (internal citations omitted); Id. at 46, 590 S.E.2d at 504 (holding that a party seeking to set aside a judgment pursuant to Rule 60(b) has the burden of presenting evidence entitling him to the requested relief). 

3. As to whether the circuit court committed reversible error in concluding that the Rule 60(b)(5) motion was moot:  Jensen v. Conrad, 292 S.C. 169, 172, 355 S.E.2d 291, 293 (Ct. App. 1987) (holding that a judgment will not be reversed for insubstantial errors not affecting the result).

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.