Tolpa v. Bill Jones Realty of Hilton Head, Inc.

Supreme Court of South Carolina

Tolpa v. Bill Jones Realty of Hilton Head, Inc.

270 S.E.2d 622, 275 S.C. 262, 1980 S.C. LEXIS 467

CourtSupreme Court of South Carolina

DecidedSeptember 2, 1980

Docket21288

StatusPublished

This text of 270 S.E.2d 622 (Tolpa v. Bill Jones Realty of Hilton Head, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tolpa v. Bill Jones Realty of Hilton Head, Inc., 270 S.E.2d 622, 275 S.C. 262, 1980 S.C. LEXIS 467 (S.C. 1980).

Pincite

Opinion

Ness, Justice:

Appellant, Thomas P. Tolpa, appeals from an order vacating a default judgment taken against respondents, Bill Jones Realty of Hilton Head, Inc. and William F. Jones. We affirm.

Respondents were personally served with a summons and complaint on August 13, 1979, in which appellant, as agent and shareholder of the corporation, sought an allegedly unpaid real estate agent’s commission. Respondents delivered ' the papers to their attorney, but responsive pleadings were not served until the statutory period had run.

Appellant moved for and was granted a default judgment. Respondents subsequently moved to have the judgment vacated under § 15-27-130, Code of Laws of South Carolina (1976). The trial court vacated the judgment on the following grounds.

(1) Respondents were unable to answer the complaint because of the interruption of business caused by the mandatory evacuation of Hilton Head Island due to Hurricane David on September 4, 1979.

(2) The respondents have asserted a meritorious defense of payment in full.

The sole issue to be decided is whether the trial court erred in vacating the default judgment. We hold it did not.

A motion for relief from judgment under § 15-27-130, supra, is addressed to the sound discretion of the trial judge and its ruling will not be disturbed [264]*264absent a clear showing of abuse. Stewart v. Floyd, S. C., 265 S. E. (2d) 254 (1980). Furthermore, where the order of the trial court is based on factual, as distinguished from legal, conclusions, it will not be disturbed unless without evidentiary support. Stewart v. Floyd, supra.

Here, the trial court found excusable neglect in that respondents were unable to serve responsive pleadings within the statutory period due to the mandatory evacuation of Hilton Head Island. This finding is amply supported by evidence in the record and will not be disturbed.

The order appealed from is affirmed.

Affirmed and Remanded.

Lewis, C. J., and Littlejohn, Gregory and Harwell, JJ-, concur.

Free access — add to your briefcase to read the full text and ask questions with AI