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2011-UP-152 - Ritter v. Hurst

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

William Ritter, Respondent,

v.

William Hurst, et al., Defendants,

Of whom William Hurst is the Appellant.


Appeal From Aiken County
 Doyet A. Early, III, Circuit Court Judge


Unpublished Opinion No. 2011-UP-152
Submitted April 1, 2011 – Filed April 12, 2011   


AFFIRMED


Brian Austin Katonak, of Aiken, for Appellant.

Marsha M. Banks, of Aiken, for Respondent.

PER CURIAM: William Hurst appeals the trial court's denial of his motion for relief from judgment.  Hurst argues the following: (1) the trial court lacked jurisdiction because of the failure to properly publish the summons; (2) the trial court lacked jurisdiction because Hurst did not receive proper notice of the hearing; and (3) the trial court erred in failing to grant relief under Rule 60(b), SCRCP, for Hurst's excusable neglect.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the trial court lacked jurisdiction because of improper service of process: Fin. Fed. Credit, Inc. v. Brown, 384 S.C. 555, 564, 683 S.E.2d 486, 491 (2009) ("[S]ervice [of process] confers personal jurisdiction."); Bakala v. Bakala, 352 S.C. 612, 629, 576 S.E.2d 156, 165 (2003) ("Objections to personal jurisdiction, unlike subject matter jurisdiction, are waived unless raised."); Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review."). 

2. As to whether the trial court lacked jurisdiction because of improper notice: Staubes, 339 S.C. at 412, 529 S.E.2d at 546 ("[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.").

3. As to whether the trial court erred in denying Hurst's motion for relief from judgment: BB & T v. Taylor, 369 S.C. 548, 552, 633 S.E.2d 501, 503 (2006) ("The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle her to relief."); id. at 551, 633 S.E.2d at 502-03 (holding the decision to grant or deny a motion made pursuant to Rule 60(b) is within the sound discretion of the trial court and the appellate standard of review is limited to determining whether the trial court abused its discretion); Gainey v. Gainey, 382 S.C. 414, 423, 675 S.E.2d 792, 797 (Ct. App. 2009) (holding an abuse of discretion occurs when the order of the court is controlled by an error of law or when the order is based on factual findings that are without evidentiary support).  

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.


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