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2012-UP-182 - Guerry v. Agnew

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

Jay and Meri Guerry, and Silo Oaks, LLC, Plaintiffs,

v.

James Agnew and Virginia Agnew d/b/a  Agnew Arabians, Appellants,

v.

Guerry and Guerry, LLC; Marsha Wright; The Marsha Wright Group, LLC, d/b/a Wright Group Realty; Century 21 Bob Capes Realtors; and Century 21, Third-Party Defendants,

Of Whom Century 21 is Respondent.


Appeal From Anderson County
Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2012-UP-182
Submitted March 1, 2012 – Filed March 14, 2012   


AFFIRMED


Matthew W. Christian and W. Harold Christian, Jr., both of Greenville, for Appellants.

Troy A. Tessier and J. Theodore Gentry, both of Greenville, for Respondent.

PER CURIAM: James Agnew and Virginia Agnew, d/b/a Agnew Arabians (Agnew Arabians), appeal the circuit court's ruling denying their motion for entry of default and allowing Century 21 Real Estate, LLC, (Century 21) to file a late answer, arguing the circuit court (1) erroneously relied upon Rule 55(c), SCRCP, instead of Rule 6(b), SCRCP, and (2) failed to find good cause in support of its ruling.  We affirm.[1]

1.  We disagree with Agnew Arabians that the circuit court erroneously relied upon Rule 55(c), SCRCP, for its ruling.  Although the order entered by the circuit court does not explicitly reference the rule relied upon for its ruling, the hearing transcript indicates the court acknowledged that Rule 55(c), SCRCP, did not apply because default had not yet been entered.  Accordingly, this argument is without merit. 

2.  Rule 6(b), SCRCP, states that "[w]hen by these rules . . . an act is required or allowed to be done at or within a specified time, . . . the court . . . may at any time in its discretion . . . upon motion made after the expiration of the specified period, for good cause shown, permit the act to be done."  A circuit court's decision to allow an enlargement of time pursuant to Rule 6(b), SCRCP, is within the discretion of the circuit court and will not be disturbed "unless there is a clear showing of an abuse of discretion."  Mauro v. Clabaugh, 299 S.C. 184, 191, 383 S.E.2d 244, 249 (Ct. App. 1989). 

We find the circuit court did not abuse its discretion by denying Agnew Arabians' motion for the entry of default and allowing Century 21 to file a late answer.  Although the circuit court included no specific finding of good cause in its order denying the motion for entry of default, the evidence presented by Century 21 supported the circuit court's ruling.  Century 21 submitted an affidavit indicating that, after reviewing the third-party complaint, it sent a letter to Agnew Arabians requesting that it dismiss them from the action because none of the allegations involved Century 21.    Without responding to the letter, Agnew Arabians filed a motion for the entry of default.  Shortly after receiving the motion and before the court entered default, Century 21 filed its answer.  After determining Agnew Arabians would suffer no prejudice from allowing Century 21 to file an answer and that the entry of default would be too harsh a sanction given the circumstances, the circuit court did not abuse its discretion by denying Agnew Arabians' motion to enter default and allowing Century 21 to file a late answer. 

AFFIRMED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.


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