Thomas v. Orrell

• Court: Court of Appeals of South Carolina
• Decided: September 26, 2003
• Docket: 2003-UP-556
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

---

Rita Thomas,        Respondent,

v.

Penny Orrel,        Appellant.

---

Appeal From Jasper County
Danny Henderson, Special Referee

---

Unpublished Opinion No. 2003-UP-556
Submitted July 15, 2003 – Filed September 26, 2003   

---

AFFIRMED

---

George H. Kearse, of Allendale, Pete Kulmala, of Barnwell, for Appellant

R. Thayer Rivers, Jr., of Ridgeland, for Respondent(s).

PER CURIAM:  The underlying suit in this case involves an action by Rita Thomas to cancel a bond for title given by Penny Orrel for the purchase of 7.28 acres of property in Jasper County.  After hearing initial motions in the matter, the circuit court referred the case to a special referee with finality.  Orrel appeals the special referee’s refusal to set aside the entry of default against her and the order granting Thomas a rescission of the contract for sale.  We affirm.

FACTUAL/PROCEDURAL HISTORY

On September 30, 1997, Thomas filed a Summons and “Petition for Cancellation of Bond for Title,” alleging that Orrel was in default by failing to make timely payments on the contract for the purchase 7.28 acres in Jasper County from Thomas for $27,000.  Orrel timely filed and served her Answer and Counterclaim.  Orrel alleged in her counterclaim that Thomas misrepresented the restrictive covenants on the property, refused to provide Orrel with an accounting, refused to give Orrel credit for her downpayment and money earned from the sale of timber on the property, and failed to inform Orrel that she was considered in “default” while still accepting, but not cashing, payments from her. 

Orrel’s counsel, attorney Bruce Hoffman, filed a motion to be relieved as counsel on April 27, 1999, alleging Orrel ignored warning letters he mailed to her, would no longer communicate with him, and failed to pay him for his services.   Hoffman served Orrel with the motion via mail.   On May 20, 1999, the circuit court issued an order provisionally relieving Hoffman as Orrel’s attorney pending service of Orrel.  

On the date the case was scheduled to go to trial, Orrel did not appear.   Hoffman informed the court that he had unsuccessfully attempted to contact Orrel at her last known address in Savannah, Georgia, he had not heard from Orrel since January 1999, he learned from her employer that she no longer worked there, and her home and cellular telephone numbers had been disconnected.   An affidavit from Thomas’ process server indicated that he likewise was unable to locate Orrel at her last known home and employer’s addresses. 

The circuit court issued an Order of Default and Reference on June 25, 1999.   The court found that both attorney Hoffman and Thomas’s attorney had attempted to serve Orrel at her last known address, that a process server for Thomas had learned that Orrel had quit her job and left her apartment without a forwarding address for a period of at least ninety days prior to attempted service, and that Orrel had failed to communicate with Hoffman since January 1999.   Based on the affidavits, the circuit court declared Orrel in default for failure to defend pursuant to Rule 55, SCRCP, struck Orrel’s counterclaim, finally relieved Hoffman as Orrel’s attorney, and referred the matter to a special referee for a final order.

On July 26, 1999, Hoffman filed a Notice and Motion to Set Aside the Default and Order Dismissing Counterclaim, alleging that good cause existed to set aside the default.   The attached affidavit of Orrel averred that her ex-husband was abusive, he threatened to kill her and her two children, and he burned down her boyfriend’s apartment.  The affidavit further provided:

I had to run for my life, I feared for the safety of my children and myself.  I had to break all contact with anyone who might tell my husband my location.  My attorney Bruce Hoffman did not know where I was or how to contact me.  I could not contact Mr. Hoffman because he at the time also represented my ex-husband in another case.  I did not abandon my case, but I truly felt that I must protect my children and myself.  I have meritorious claims and defenses and I want the court to hear them.  Please put this case back on the calendar for trial.  My current location must be kept private no matter what. 

(emphasis added).   On January 21, 2000, Hoffman filed another Notice of Motion and Motion To Withdraw as Attorney of Record, alleging Orrel refused to sign a fee agreement and misrepresented essential matters to him.  Hoffman was relieved as attorney of record for Orrel via consent order on March 13, 2000.

A hearing was held before the special referee to determine the Motion to Set Aside the Default and the merits of the default case.  After hearing both parties on the matter, the special referee issued an order on March 18, 2002, denying Orrel’s motion to set aside the default and granting Thomas’ suit to rescind the land sale contract.   Orrel appeals.

ISSUES

I.   Whether the special referee erred in refusing to set aside the default based upon Orrel’s showing of good cause consisting of lack of notice and equity of redemption?

II.  Whether the special referee erred in canceling the Bond for Title because Thomas failed to prove Orrel was in default of the agreement and cancellation disregarded Orrel’s equitable interest in the property?

DISCUSSION

A.  Set Aside Default Judgment

Orrel argues the special referee erred in refusing to set aside the default judgment against her because her lack of notice that Hoffman had moved to be relieved the first time and her equitable interest in the property constituted “good cause.” [1]   

Although her affidavit in support of her motion to set aside the default judgment stated that Hoffman had no way of contacting her, Orrel testified before the special referee that Hoffman knew at all times how to contact her, that her mail was forwarded from her former Savannah, Georgia address to her Millen, Georgia address, and that her cellular telephone number she gave to Hoffman remained the same.  She denied ever receiving any written or oral communication from Hoffman regarding her case or his motion to be relieved and stated that she contacted him in July of 1999 to inquire on the status of her case.

The special referee noted the discrepancy in Orrel’s testimony and Hoffman’s assertions at the hearing on the first motion to be relieved.  Accepting Orrel’s testimony as true, the special referee found that Hoffman had the ability to contact Orrel and notify her of matters in her case but failed to do so.   The referee denied the motion to set aside the default, noting that Hoffman was acting on behalf of Orrel and she was bound by the actions of her attorney.  The referee also found that he could not hold Hoffman’s failure to contact Orrel against Thomas.   In the written order, the special referee further noted the inconsistencies in both Hoffman’s and Orrel’s representations to the court and held that he could not grant relief under Rule 60(b) to someone who had placed herself “in the present situation.” 

Relief from judgment under Rule 60, SCRCP, rests within the sound discretion of the circuit court, and the circuit court’s findings will not be disturbed on appeal absent an abuse of discretion.  Thompson v. Hammond, 299 S.C. 116, 119, 382 S.E.2d 900, 903 (1989).  A circuit court may relieve a party from a final judgment pursuant to Rule 60(b)(1), SCRCP, where a party shows the judgment or order was induced by mistake, inadvertence, surprise, or excusable neglect.  See Hillman v. Pinion ex. rel Estate of Hillman, 347 S.C. 253, 256, 554 S.E.2d 427, 429 (Ct. App. 2001).  A party may also seek to be relieved from judgment by showing fraud, misrepresentation, or other misconduct of the adverse party.  Rule 60(b)(3), SCRCP.  “In determining whether to grant a motion under Rule 60(b), the trial judge should consider:  (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 party.”  Mictronics, Inc. v. South Carolina Dep’t of Revenue, 345 S.C. 506, 510-11, 548 S.E.2d 223, 226 (Ct. App. 2001). 

Reviewing the facts in the present case, the special referee did not abuse his discretion in refusing to relieve Orrel from the default judgment.  Orrel’s testimony that her attorney knew how to contact her contradicted her own affidavit that the attorney did not know how to reach her.  Although it is understandable that Orrel would be fearful considering her domestic situation, she removed herself from her prior address without informing Hoffman that she had left.  Orrel’s failure to contact her attorney or inform him of her whereabouts made it impossible for him to give her notice of the hearing on the first motion to be relieved.  In this instance, “lack of notice” does not constitute a valid reason for Orrel’s failure to act promptly.  Accordingly, we find no abuse of discretion.

B.        Cancellation of Bond for Title

Orrel argues the special referee erred in ordering the cancellation of the bond for title because Thomas failed to prove Orrel defaulted on payments and the order disregards her equitable interest in the property. 

On April 23, 1993, Thomas and Orrel signed a “Contract for Sale (Bond for Title).”   The contract provided that Orrel would purchase 7.28 acres in Jasper County from Thomas for $27,000.  Payment of the purchase would be made in monthly payments of $409.70 from June 15, 1993, until June 15, 2001, with a $25.00 late fee added if the payment were not received by the tenth of each month.  The agreement provided that “[a]ll payments above the payment amount will be a direct reduction of principal.”  The contract further provided as follows:

That it is mutually understood and agreed that time is of the essence of this contract; and if Buyer becomes in default of the payment of any sums under the terms of this contract for a period in excess of two (2) months, the Seller shall have the right to declare this contract terminated, and all sums paid prior to that date shall be forfeited to the Buyer as liquidated damages and deemed to be rent.  Further in such event, the Seller shall be entitled to the immediate possession of the premises and to eject the Buyer theron in the same manner as provided for ejection of a tenant when holding over after the expiration of their contract.

(emphasis added).

Thomas testified at the hearing before the special referee that Orrel made 35 payments of $510 each month on the agreement.  However, Orrel gave Thomas checks in February and March of 1996 which were rejected for insufficient funds.   Although Orrel was able to bring her account current through the April 1996 payment in July 1996, Thomas was unable to cash the checks Orrel gave her as payment thereafter because the bank indicated there was insufficient funds for payment.   At no time during the summer of 1996 did Orrel have enough money in the bank for Thomas to cash the checks.   As of April 1996, the amount due on the contract was $19,774. 

Thomas’ attorney wrote Orrel a letter on August 12, 1996, notifying her that she was four months in arrears and that Thomas was declaring the contract to be terminated.  Thomas testified that although Orrel negotiated payment for the harvesting of timber on the property, Orrel had the timber cut without Thomas’ permission and the $3,787.10 from the sale went to Edisto Farm Credit Bank to pay Thomas’ mortgage on the property.   After August 1996, Thomas forwarded all checks Orrel attempted to pay her, including a cashier’s check for $1,530, to her attorney without negotiating the instruments.   Thomas did not credit Orrel’s account for the $3,787.10 or the $1,530 cashier’s check.   Because Orrel was found in default, Orrel did not testify or present witnesses. 

After hearing testimony and reviewing the evidence, the special referee determined that Thomas was entitled to rescind the bond for title. 

Orrel argues on appeal that although she failed to pay the June and July 1996 payments, she was not in default because the additional $100 Orrel paid each month and the $3,787.10 received from the sale of the timber far exceeded the amounts due on the contract.   Orrel further argues the special referee erred in terminating the bond for title because she had an equitable interest in the property. 

An action for cancellation of a bond for title is an action at equity.  Wilder Corp. v. Wilke, 324 S.C. 570, 479 S.E.2d 510 (Ct. App. 1997), aff’d 330 S.C. 71, 497 S.E.2d 731 (1998).  In an appeal from an action at equity tried by a special referee, the appellate court may review the evidence to determine the facts in accordance with its own view of the evidence.  Tiger, Inc. v. Fisher Agro Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989).  This broad scope of review does not require us to disregard the findings of the referee, who was in a better position to evaluate the credibility of the witnesses.  Tiger, 301 S.C. at 237, 391 S.E.2d at 543. 

Orrel did not make these arguments before the special referee.  Accordingly, these issues are not preserved for appellate review.  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E. 2d 731, 733 (1998).  

In any event, the special referee did not err in finding Thomas was entitled to terminate the bond for title.  A clear reading of the agreement indicates the parties agreed the bond would be terminated if Orrel became two months in arrears.  Thomas testified that she received checks not supported by sufficient funds for the May, June, and July 1996 payments.  Orrel essentially admits that she was in arrears on the June and July 1996 payments, although she claims an offset by her previous extra $100 towards the principal amount.  Because the evidence supports the special referee’s findings, we affirm.

CONCLUSION

The special referee did not abuse his discretion in refusing to set aside the default judgment.  Further, the evidence supports the finding that Thomas was entitled to terminate the bond for title.  Accordingly, the special referee’s order is

AFFIRMED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.

---

[1]  There is some controversy in this case over whether the circuit court’s order of default was an entry of default or a judgment of default.  The circuit court judge did not specify in his order whether he was entering default against Orrel pursuant to Rule 55(a), SCRCP, or whether he was granting a judgment of default pursuant to Rule 55(b), SCRCP.  At the hearing on the motion to set aside the default, the parties discussed whether the order was one for judgment of default under Rule 55(b), and they proceeded with the motion to set aside the default as one for relief from judgment under Rule 60(b).  Orrel argues in her brief, however, that the special referee erred in finding the default was a judgment and the matter should have been reviewed as a motion for relief from entry of default under Rule 55(c).   Orrel did not object when the special referee and the parties determined the matter was one for relief from judgment of default pursuant to Rule 60(b).  Accordingly, this question is not preserved for appellate review and we must review the special referee’s order as written.  See Joubert v. South Carolina Dep’t of Soc. Servs., 341 S.C. 176, 534 S.E.2d 1 (Ct. App. 2000) (holding that issues not raised to or ruled upon by the trial court are not preserved for appellate review).