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2011-UP-368 - Fauley v. Weaver

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

Merry H. Fauley, Appellant,

v.

David S. Weaver, Respondent.


Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-368
Submitted April 4, 2011 – Filed July 14, 2011


AFFIRMED


Jack W. Swan, of Charleston, for Appellant.

G. D. Morgan, Jr. and Amanda Bradley, both of Columbia, for Respondent.

PER CURIAM: Merry H. Fauley appeals the dismissal of her claim against David S. Weaver, arguing the trial court erred in dismissing the action because Weaver's motion to dismiss was untimely.  We affirm.[1]

Following an automobile accident, Fauley attempted to serve Weaver, but was unable to do so.  After the statute of limitations elapsed, Fauley accomplished service by publication.  Weaver did not file an answer or motion within thirty days of service by publication.  Several months later, after his insurance carrier was served, Weaver filed a motion to dismiss which was followed by Fauley's motion for entry of default.  Weaver subsequently filed a motion to set aside the entry of default.  Fauley filed returns to both Weaver's motion to dismiss and motion to set aside default.  After a hearing, the trial court granted Weaver's motions to set aside default and to dismiss the case, holding Weaver was not timely and properly served.

Rule 55(c), SCRCP provides that an entry of default may be set aside for good cause.  A motion under Rule 55(c) is addressed to the sound discretion of the trial court.  Williams v. Vanvolkenburg, 312 S.C. 373, 375, 440 S.E.2d 408, 409 (Ct.App. 1994).  When deciding whether to set aside an entry of default, the trial court should consider: (1) the timing of the motion for relief; (2) whether the defendant has a meritorious defense; and (3) the degree of prejudice to the plaintiff if relief is granted.  Wham v. Shearson Lehman Bros., Inc., 298 S.C. 462, 465, 381 S.E.2d 499, 501-02 (Ct.App. 1989).  Here, the trial court did not abuse its discretion in setting aside the entry of default because Weaver was not properly served under Rule 3(a), SCRCP.  See Rule 3(a), SCRCP (stating a civil action is commenced when the summons and complaint "are served within the statute of limitations in any manner prescribed by law; or if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing").  After the trial court set aside the entry of default, the trial court had the inherent power to rule on Weaver's motion to dismiss because the case was still before the court.  See Rule 1, SCRCP (providing the rules of civil procedure are to be construed to secure the just, speedy, and inexpensive determination of every action).  Therefore, the trial court did not err in considering Weaver's motion to dismiss. 

AFFIRMED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.



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