*1 At argument, oral counsel queried by was the court in regard to an identification of issues based on the appellate reconstructed record. Counsel State unable to identify appellate issues any degree of exactitude.
Because the reconstructed record is deficient in profoundly guiding issues, the court to preserved I appellate come ineluctable conclusion that a retrial is mandated.
I VOTE to REVERSE and the convictions REMAND sentences Travis Anthony Ladson for a new trial.
GLENWOOD partnership; South Carolina limited Inc.; Development, Building Supplies McBride Hard- & ware, Inc.; Savings First Federal and Loan Association of Charleston; Housing, Inc.; Charleston Affordable and the Building Center, Inc., Defendants, Development, Inc., Respondent,
Of whom DC Falls, LP, and Glenwood a South Carolina partnership, Appellant. limited is the
No. 4231. Appeals
Court of of South Carolina.
Heard March 2007. April 9,
Decided 2007. Rehearing May Denied *3 Milliken, Columbia, Tighe Mary Michael W. Dameron for Appellant. Booth, III, Columbia, of West for Respondent.
William E. KITTREDGE, J.: Falls, LP, order its denying master’s appeals *4 aside affirm. judgment.
motion to set a default We
I. a Carolina limited partnership. South Glenwood a Falls hired South Carolina Development, Glenwood DC on real Glen- apartments property construct corporation, fund County. project, Falls owned in York To wood mortgage Falls obtained a million from Stearns Glenwood $1.8 Bank. 30, 2004, Bank a foreclosure January brought
On Stearns Falls, against Development, action Glenwood DC Charles- (“Affordable Housing”). ton Affordable Affordable Housing one of Housing, non-profit corporation, a South Carolina 15, 2004, Falls’ March DC general partners. Glenwood On against and filed a cross-claim Glen- Development answered Falls, on the seeking wood to foreclose a mechanic’s lien contract, causes of action for breach of property asserting enrichment, unjust quantum meruit. DC Booth, attorney, mailed the cross-claim via certified William Kleiman, registered agent, Cathy mail to Falls’ but Glenwood Instead, Kleiman did not the return an unautho- sign receipt. rized it. person signed and, May
Kleiman nevertheless received the cross-claim on 13, 2004, Nettles, it to an attorney forwarded Robert she represented believed Glenwood Falls. Over the next several months, attempted Kleiman to contact Nettles times multiple cross-claim, to ascertain the status of the but Nettles did not The respond. record does establish Nettles was ever retained to Falls in this matter. represent Glenwood 17, 2004, order, the master issued a foreclosure but
On June jurisdiction July retained to hear the cross-claim. On Booth, Development’s attorney, purportedly DC received from Affordable Frank phone message Housing’s attorney, Cisa, regarding representation Cisa’s of Glenwood Falls. On following: November Booth wrote Cisa the I Inc. and I represent Development, you repre- believe Falls, sent LP and Charleston Affordable Hous- Glenwood Inc. I have scheduled the trial of Cross-Claim of DC ing, Falls, LP. trial Inc. Glenwood Development, 16, 2004, at 1:30 PM in the office of scheduled for December County. the Master in for York Equity (“the letter”). He replied day the next November wrote: I Housing,
I do Inc. and represent Charleston Affordable Falls, am taking representation now over I letter is that no gather you[r] LP. What Answer was Falls, on LP to the filed behalf Glenwood Cross-Claim *5 case, by it caused Inc. If that is the was Development, Falls, LP failure of the for Glenwood original the event, Inc. to Development, In for DC any to respond. action, my is that Glen- any money opinion recover this Falls, against a claim and LP needs to assert over wood designed project. and Glen- engineers architects who Falls, LP no wood has assets.... 16, 2004, Development’s the master heard DC
On December Falls, mentioned in his cross-claim Glenwood as Booth against Cisa, however, appear did not on Glenwood letter Cisa. an affidavit of day, Falls’ behalf. That same Booth filed 5, 2005, a default January the master entered default. On Falls. million Glenwood judgment $1.3 Falls moved to set aside the default April Glenwood (1) argued judgment Falls was void judgment. Glenwood jurisdiction the court did not have over personal because failure to Falls as a result of DC Glenwood (2) Falls, judgment was properly serve Glenwood excusable The master denied Glen- procured through neglect. (1) the court had Falls’ motion. The master found wood Falls, jurisdiction DC Devel- personal despite over Glenwood properly, failure to Falls because opment’s serve Glenwood voluntary appearance, Falls made a which waived Glenwood (2) jurisdiction, personal judgment its to contest right Falls procured through neglect. was not excusable Glenwood appeals.
II. or a motion for relief from grant deny The decision discretion of the trial court and judgment lies within sound will not be disturbed on absent an abuse discretion. appeal 502-03 Taylor, BB &T v. S.E.2d (2006). judge issuing “An abuse of discretion arises where the controlled an error of or where the order the order was law evidentiary on factual that are is based conclusions without Id. at at 503. support.”
III. its argues denying the master erred Glenwood (1) judg- a default because motion to set aside void, served and properly ment was as Glenwood Falls was (2) did not appearance, make voluntary procured through excusable as neglect, Glenwood Falls’ attorneys abandoned it. find no We abuse discretion in the denial of Falls’ motion for judg- relief default ment.1 Voluntary Appearance
A. *6 Glenwood Falls contends the judgment was void as a result service, of DC and the improper master erred a finding voluntary appearance. Glenwood Falls made We disagree.
A a may court set aside default judgment accor 60(b), 55(c), dance Rule SCRCP. See Rule SCRCP. 60(b)(4) Rule provides: motion upon “On and such terms as just, are may the court a party legal relieve or his representa ” tive from final ... judgment judgment a is void.... [if] “A is judgment void if a acts personal jurisdic court without tion.” BB T v. Taylor, & (2006).
A court usually jurisdiction by obtains personal the service of the summons and To a complaint. partnership, serve a copy complaint the summons and must be “an delivered to officer, a or to managing general agent, any agent or other appointment by authorized or by law to receive service process,” mail, or sent by or certified “registered return to receipt requested delivery restricted the addressee.” 4(d)(3) (8), Rule & a commonly court Although SCRCP. jurisdiction obtains personal by the service of the summons it obtain complaint, may personal jurisdiction also if the 4(d) (“Volun- a voluntary appearance. defendant makes Rule tary by is to ser- appearance equivalent personal defendant vice.”).2 SCRCP, 60(b),
1. The Rule amended motion that is the basis of this appeal generic leaving speculate unspecific, to us as to this, precise Beyond appeal on not basis of motion. the record does transcript hearing. Although contain the from the motion could we alone, preservation grounds affirm on issue elect to issue we treat the preserved, reasonably as for we can discern the basis the motion denying the master's order the motion. 5(b), SCRCP, Although generally provides stringent Rule less stan- serving original pleadings subsequent dards for summons and found, contests, and neither party As the master Falls under Development properly did serve Glenwood 4(d)(8), an the re person signed Rule because unauthorized ground be a suitable Normally, turn this would receipt. 60(b)(4). Rule under Rule See grant relief 4(d)(8) set judgment by such default or default shall be (“Any 60(b) 55(c) or if the defendant pursuant to Rule Rule aside the return receipt signed the court that demonstrates did not set person.”). an But the master by unauthorized 60(b)(4) because he the default under Rule aside voluntary which appearance, found Falls made Glenwood 4(d) Thus, personal service.” “equivalent under Rule personal jurisdiction had over master concluded the court Falls. Glenwood issue, thei'efore,
The critical is whether master voluntary appearance. finding erred in made used or ‘appearance’ particularly signify “The term act suit has designate the overt which one whom jurisdiction.” been commenced submits himself to the court’s (1995). § “An Appearance appearance may 4 Am.Jur.2d be *7 declaration, made formal or oral or expressly by written or act done entry, may implied record it be from some to submitting juris the intention of the court’s appearing Id. act constitutes an as “a specific appearance, diction.” No trumpets, into or may defendant choose come court with 333, 102 Stephens Ringling, the back door.” v. S.C. quietly by 683, (1915). 342, 86 courts decide on Accordingly, S.E. 685 act an by case case basis whether a defendant’s demonstrates jurisdiction. intent to submit to court’s Here, from the master found the November 9 letter Glen- Cisa, attorney attorney, Development’s Falls’ to DC wood jurisdiction an demonstrated intent submit to court’s therefore, and, mas- voluntary appearance. constituted a The Petty Weyerhaeuser Company, ter cited (1979), that a from one proposition letter S.E.2d may voluntary appearance. to another constitute a from case. argues Petty distinguishable SCRCP, 5(a), pursuant complaint, requires Rule service to Rule 4 when party party has makes new or additional claims another appear. in default for failure to been held In Petty, complaint counsel sent the summons and plaintiffs Tacoma, in Washington. to defense counsel A few weeks later, defense counsel called counsel to an plaintiffs request complaint, extension of time to answer the which plaintiffs granted. counsel Defense counsel memorialized this exchange counsel, in a letter to read: our plaintiffs “Confirming which February telephone please conversation consider this letter as an informal notice of on appearance behalf [the in the suit you recently instituted....” Id. at defendant] The letter also stated the defendant would like to settlement “explore possibilities prior retaining in appearance, counsel South Carolina for formal answer When, or local defense settlement counsel.” Id. after numerous counsel not reach attempts, plaintiffs could defense possibilities, counsel to discuss settlement plaintiffs counsel default, an filed affidavit of and an order of default issued. was default, Defense counsel moved to set aside the order of arguing jurisdiction the court did not have over the personal defendant because the plaintiff improperly served it. and, proper
trial court found service was even if were service the defendant made a improper, voluntary appearance. Our supreme court found service but improper, nevertheless held the defendant made a voluntary appearance. Petty distinguishable
Glenwood Falls asserts from this (1) Petty acknowledged case because in defense counsel complaint, summons and but this case Cisa did not acknowl- (2) cross-claim; defense counsel ex- edge Petty pressly stated the letter should be considered an appearance, expressly but this case Cisa did not state the November 9 letter be considered an appearance. should
Glenwood Falls’ attempt distinguish Petty unpersua- First, sive. does acknowledge Cisa cross- Booth, writes, claim. the November 9 letter to “What I letter is that no filed on gather you[r] Answer was Falls, LP behalf of Glenwood to the Cross-Claim of DC *8 added).3 then, Development, (emphasis Clearly, Inc.” Cisa emphasizes in court the Novem- 3. Glenwood Falls its brief to this that ber 9 letter even Falls does not mention the cross-claim. Glenwood "simply taking representa- stated that he was 'now over the writes Falls, mentioning tion of Glenwood LP’ without even the Cross-Claim." 340 against Glenwood cross-claim
recognized Falls. the word
Second, did not mention mere fact that Cisa not mean 9 letter does Glen- in the November “appearance” inquiry Again, appearance. failed to make an wood an intent demonstrated Falls’ conduct is whether Glenwood is not inquiry whether jurisdiction. the court’s submit to many term On “appearance.”4 Falls invoked the can make party found that a court has supreme occasions our See, announcing it. formally without voluntary appearance a Gromlovitz, 386, v. 270 S.C. Auto Co. Triangle Spring e.g., (1978) that 430, (holding n. 1 1, 242 431 n. S.E.2d 389-90 voluntary a constitutes to a confession of consenting 167, Connell, 162, 153 249 S.E.2d S.C. Connell appearance); (1967) judicata defense of res 396, raising that (holding Equip. Co. Southeastern voluntary appearance); a constitutes Tractor, 213, 218, 107 Autocar Diesel v. One 1954 (1959) aside a motion to set (holding filing voluntary appearance). an attachment constitutes one held that a letter from correctly As the master voluntary appear- to find a serve as a basis may to another finding erred in ance, the master now examine whether we We be- voluntary appearance. Falls made a that Glenwood accurate, added). for the claim is not (emphasis Glenwood Falls' clearly addresses the cross-claim. November 9 letter argues November 9 letter did that because the 4. Glenwood Falls appearance, make an formally Falls' intent to announce Glenwood personal jurisdiction. right did not waive its to contest Glenwood Falls Authority, Service v. South Carolina Public Glenwood Falls cites Boland proposition that a (Ct.App.1984), for the S.C. 315 S.E.2d constitute a plaintiff's counsel does not letter from defense counsel to expressly invoke the term voluntary appearance if letter does not bright-line rule. “appearance.” create such a Boland does not Boland, finding that the communica upheld the trial court's this court plaintiff's did not constitute an counsel tion from defense counsel appearance term did not use the appearance. That the communication fact, only among many, considered the decision. one that was included, timing level example, the factors Other relevant attorneys, the fact that the as well as communication between following counsel's] [defense "next move in lawsuit [the] defendant’s 315 S.E.2d at special appearance....” Id. letter was to make holding in Boland turned suggest that the It is thus incorrect to letter. merely "appearance” in the on the absence of the term *9 341 lieve the 9 November letter manifests intent Glenwood Falls’ submit jurisdiction to to the of the court. In the 9 November letter, only representation Cisa not announces his of Glenwood expresses without reservation but also an to reach intent case, the merits of the when he “for especially writes Inc., action, Development, money recover any my this Falls, opinion that Glenwood LP needs to a claim assert over and the engineers designed architects and who Co., project.” this Jenkinson See v. Murrow Bros. Seed 272 148, 154, 780, (1978) (Ness, J., S.C. 249 S.E.2d 783 concurring) (“In order to right jurisdic- establish waiver of the to contest tion, it necessary conduct, only party, by a its evince an case.”). Moreover, intent to proceed the of the merits the November 9 slightest letter contains not the hint of a desire to challenge process. us, service of on the Based record before hold the did finding we master not err in the 9 November voluntary letter was a appearance by Glenwood Falls.5 Neglect B. Excusable
Glenwood Falls contends the master in finding erred procured through neglect excusable because Falls’ willfully it. attorneys abandoned We disagree.
A judgment may default be set aside on of grounds mistake, inadvertence, surprise, or excusable Rule neglect. 60(b)(1), Relief SCRCP. a upon available defense; of showing neglect excusable and a meritorious case law also trial directs the court to consider the or presence absence of prejudice party opposing the motion. Mic tronics, Revenue, 506, 510-11, Inc. Dep’t v. 345 S.C. S.C. (“In 223, 548 S.E.2d 226 (Ct.App.2001) determining whether 60(b), grant motion under Rule the trial judge should (1) (2) consider: promptness sought, with which relief is (3) the reasons for the failure to act promptly, the existence of defense, (4) prejudice a meritorious the other party.”). light holding, In of this we need not address whether Cisa’s actions on Housing appearance behalf of voluntary Affordable also constituted for Glenwood Falls.
342 us, disposi of our ultimate
In the case before because Falls’ tion, neglect excusable only we need address Glenwood its from the assertion of willful abandonment arising claim Concerning attorney neglect, general a claim of counsel. is attributable to neglect rule is that “the 442, Loris, Town S.C. client.” Graham (1978). rule, the discussing general Flowers, 231 from Simon v. quoted approvingly court Graham (1957): 99 S.E.2d S.C. *10 to set or a is vested courts aside
Although wide discretion misconduct or neglect, because of the judgments vacate case, the employed general of counsel the inadvertence the of is the undoubtedly neglect attorney rule that the is client, mistake, or the and that no inadvertence neglect of can used attorney successfully be neglect attributable relief, if a for unless it have been excusable ground as would the of the client. The acts and omissions attributable attorney are the client. in such case those of
However, attorney’s rule that an negligence “[t]he prevent be to his client and the latter from may imputed a relying ground opening vacating judgment on that or the necessarily attorney’s not in the event of prevail does Graham, the 272 abandonment or withdrawal from case.” 452, (citing Judgments at 248 at 599 46 Am.Jur.2d S.C. S.E.2d (1969)). the that the general neglect § To overcome rule 737 client, the the client must attorney of the is attributable to attorney unilaterally its former willfully establish that 452, 599; Sys. at 248 at abandoned it. Id. S.E.2d Paul Davis LLG, 220, Head, 226, Hilton 362 607 Deepwater Inc. S.C. of (“This 358, is a case of not willful (Ct.App.2004) S.E.2d of client counsel in which and unilateral abandonment the rule the of general neglect could the apply we refuse client.”). the the is the of attorney neglect thus an exception gener Our law instructs that the the conse attorney’s al rule when the inaction was applies case. of abandonment or withdrawal quence willful rule attorney merely neglectful, general, an Where unavailable; an judgment relief from where applies and and the attorney’s neglect party conduct transcends mere seeking relief establishes willful abandonment or withdrawal case, from the relief from judgment available.
The Graham facts are instructive. The of Town Loris represented by city attorney. was its The before a day summary hearing Town of Loris received letter from city attorney his announcing resig- immediate nation. city attorney The did inform official any town the impending summary no judgment hearing. When one appeared Loris, hearing at the on of the behalf Town summary judgment against was it. entered The trial court ultimately granted Town of Loris relief from judgment, holding that the Town of no Loris notice of the summary had and that hearing its had resigned. affirmed, supreme court noting that “under the rare circum- case,” stances of this Town Loris “should not be charged with the abandonment of case counsel.” by its Graham, at S.C. Simon, 99 S.E.2d defense counsel
failed to he complaint answer was in a because involved multi-day trial. As a result of defense counsel’s failure to the complaint, answer the court entered a default judgment appeal, supreme defendant. On our court sympa- thetic to plight defense counsel’s but nevertheless adhered *11 and general imputed neglect rule of to his counsel client. The explained: court forgetfulness default the result attor-
[T]he was of on [the ney’s] in turn to part pressure which was due of business his in the trial of cases----In of a busy crowded routine lawyer’s fife a mistake such the record here as discloses is understandable; but it penalty entails default under strict procedure, enforcement of the rule of the trial and court’s to forgive refusal it affords no basis for reversal. Id. 550-51, at 394.
We turn neglect now to Glenwood Falls’ claims of excusable attorneys in connection and with Nettles Cisa.
1. Nettles argues willfully
Glenwood it. Falls Nettles abandoned We initially it is actually observe that doubtful whether Nettles fact, represented litigation. Falls in Glenwood this Nettles any and disavowed Kleiman Cisa on June wrote uncertainty This about of Glenwood Falls. representation Falls, standing representation Nettles’ Glenwood purported alone, ruling. to sustain the master’s enough
Moreover, under no circumstance has Glenwood Falls shown As by alleged representation. that it was Nettles prejudiced illustrates, Falls arranged Glenwood the November letter to Falls representation take over the of Glenwood for Cisa Falls, Therefore, default was entered. Glenwood before Cisa, following had time the November 9 letter through ample to itself default. appropriate protect to take action Glen- Now, Falls Falls to attempts failed do so. Glenwood wood June, problems May, Nettles in alleged resurrect its to act July protect of 2004 to extricate itself from its failure it in and December of 2004. This its interests November do. find master his discretion cannot We did abuse relief on the denying purported repre- Glenwood Falls based by sentation Nettles.
2. Cisa willfully it.6 Cisa argues
Glenwood
abandoned
9, 2004, at
representing
Falls on November
began
latest.
if
that
to act
Even
we assume
Cisa’s failure
the November 9 letter and
default
between
may
that
to act
neglectful, we
not assume
Cisa’s failure
transcends mere
and rises
the level of willful
neglect
from the case.
of the
abandonment or withdrawal
Resolution
turns on this critical difference.
concerning Cisa
appeal
question
part
whether
Rule
6. We
this issue was
Glenwood Falls'
60(b)
60(b)
conclusory and
motion. Glenwood Falls' Rule
motion is
60(b)
it
while
is clear from the master’s order
the Rule
motion
Nettles,
speculate
we are left to
about Cisa. The
involved
master,
60(b)
example,
denying
Rule
relief focused on
his order
observed,
only
posed
"The
reason
for [Glen-
Nettles
substantial
alleged
promptly
wood
failure
act
in this matter is
'abandon-
Falls']
original attorney.'' The master further noted that "Glen-
ment'
its
first
matter abandoned
wood
asserts that
its
counsel
[Falls]
Although there
no
about Cisa in the
it...."
substantive discussion
*12
order,
"either
the order does contain indirect
references to
master's
"attorneys”
of Glenwood Falls.
counsel" of Glenwood Falls
against
as
question
presented,
While a
we treat the claim
close
preserved.
noted,
As
mere neglect invokes the general rule of imputing
the neglect
client,
of the attorney to the
while willful abandon
ment triggers the
exception
general rule and allows
relief to the client. This distinction
bemay
best illustrated by
reiterating the critical factual distinction between
Simon
Simon,
Graham.
In
the attorney simply forgot to answer the
complaint
client,
against his
supreme
court upheld the
trial court’s denial of relief
because the attorney’s
Simon,
conduct did not transcend mere neglect.
231 S.C. at
Graham,
550-51,
the moving party
established that its attorney affirmatively
by resign
withdrew
ing on the eve of a summary judgment hearing leaving the
client
of the
unaware
imminent and dispositive motion hearing.
supreme
Our
court upheld the trial court’s decision to grant
relief from judgment based on the fact that
the attorney
willfully abandoned his representation by resigning right be
Graham,
fore
the summary judgment hearing.
This case is controlled for evidence of willful Thus, abandonment is missing. if even we assume Cisa’s failure to act following the November 9 letter constituted neglect, the scant record before us does not permit additional finding abandonment, of willful partly due to Glen- 60(b) wood Falls’ generic and nonspecific We, Rule motion. course, decline to speculate in a manner that favors Glenwood Therefore, Falls. Glenwood Falls has not established that Cisa willfully abandoned or withdrew from the case. We find no abuse of discretion in the master’s refusal to find excusable neglect.
Consequently, we find no error in the master’s denial of 60(b)(1) Glenwood Falls’ Rule motion to set aside a default for excusable neglect respect to attorneys Nettles and Cisa.
IV. We hold the master did not abuse his discretion in refusing to set aside the default judgment obtained by DC Develop- ment Glenwood Falls. The November letter consti- tutes a voluntary appearance Falls, by Glenwood and the
346 neglect. The through excusable procured judgment was is master’s order
AFFIRMED. J.,
SHORT, concurs. ANDERSON, J., separate opinion. in a dissents ANDERSON, separate opinion): in a (dissenting J. reasoning analysis. majority’s disagree I aside the default view, failing erred in to set the trial court my inadvertence, mistake, or surprise, on the basis of entitled to relief Glenwood is neglect. Specifically, excusable it. I to REVERSE. attorneys abandoned VOTE because its ABANDONMENT the general articulates writing South Carolina Juridical an are attributable attorney acts and omissions of rule that the Pinion, the client. Hillman v. 347 554 S.C. Flowers, 231 Simon 427, S.C. (Ct.App.2001); 429 S.E.2d (1957). 391, to this rule is 545, exception 99 S.E.2d 394 Loris, v. Town case, 272 Graham in the seminal recognized (1978). 442, inculcates: Graham 248 594 S.C. S.E.2d to set aside or is vested courts Although wide discretion or of the misconduct judgments neglect, because vacate case, general in the employed of counsel inadvertence attorney of the undoubtedly neglect rule is that mistake, client, inadvertence or of the and that no neglect used attorney successfully an can be attributable to neglect relief, excusable if for unless it have been ground as a would of the the client. The acts and omissions attributable to of the client. in such case are those attorney case, However, we are not present under the facts of inadvertence, mistake of or merely considering neglect, unilateral with a wilful and counsel. We are concerned authority the client counsel. There abandonment of applied rule is not general that the proposition for the rule general to the exception a factual situation. This such (1969) Am.Jur.2d, Judgments, s 737 at 46 expressed following language: be attorney’s negligence may imputed The rule that an from relying his client and the latter on that prevent does not ground opening vacating or in the of the abandon- necessarily prevail attorney’s event from the case. ment or withdrawal 599; 442, 451-52, 594, accord Paul Davis Head, LLC, Hilton Systems, Deepwater Inc. v. S.C. an (Ct.App.2004) (recognizing excep- 607 S.E.2d consti- general attorney’s tion rule when conduct abandonment). tutes willful
The rule that the acts and omissions of an
are
*14
attributable to the client
not a hard
fast rule. Brown v.
is
Butler,
259, 265,
431,
554
434 (Ct.App.2001).
347 S.C.
S.E.2d
“Rather,
applied rationally,
it is one that is ‘to be
with a fair
recognition
justice
litigants
always
pole-
that
”
Graham,
452,
star.’
Id.
In our Court held “the action Supreme attorney’s in from this case at a crucial withdrawing stage without reasonable notice to his client is one of willful abandonment.” 452, attorney 272 at 248 at 599. “An who under- S.C. S.E.2d of an action to it impliedly stipulates carry takes conduct liberty to its termination and is not at to abandon it without Graham, reasonable cause and reasonable notice.” 272 S.C. 452-53, (citing at 599 Perkins v. 233 N.C. Sykes, S.E.2d 152, (1951)); Kosko, 147, 133, Floyd 63 S.E.2d 390, 393, (Ct.App.1985). 329 S.E.2d When counsel at a in stage litigation withdraws from case crucial without client, reasonable notice to his should not be “[client] the abandonment of the case its counsel.” charged with (“Conscience Graham, 452-53, 248 at 599 272 S.C. at gross alone his requires charge attorney this Court to consequences dereliction of and not to its an duty upon visit client.”). innocent any enunciates the that failure of majority position The French upon assumptions. phrase
counsel must be based only du tout”7 is efficacious. Not does the failure “pas mere it rises to the level of abandon- neglect, case transcend ment. phrase so” or at all”. This means "not "not attorney to be when
Kleinman believed Nettles Glenwood’s to him on Development’s cross-complaint she forwarded DC Nettles, contact to persisted attempting 2004. She May an to the cross- nor did he file answer respond, but he did not Cisa, Kleinman and in a letter to claim. On June addition, of Glenwood. representation Nettles disavowed for Development 2004 letter to counsel DC November Cisa’s representation. over taking indicated he was Glenwood’s cross- the reason no answer explained of the original filed due to “the failure claim had been Falls, LP respond.” attorney may that a client assume commonly It understood him continue to will lawyer previously represented who has becomes aware the attorney in that When the capacity. serve upon it is incumbent opei-ating assumption, client is under any resolve doubt immediately clearly, attorney De- attorney-client relationship still exists. about whether the continues risks representation lay clarifying whether mistakenly the client prejudice, the client to should exposing the client’s interests. acting protect believe in his cross-complaint possession Nettles had the Although Kleinman, he multiple had received contacts from never- the attor- addressing before delayed nearly theless six weeks cross-complaint that time the ney-client relationship. During of the allega- been answered to avoid admission should have *15 the of counsel on how therein. Glenwood needed advice tions unquestionably preju- protect its interests. Glenwood was conduct. diced Nettles’ arises from
The of the default of Glenwood etiology position The default of position failure and inaction of Nettles. the through concatenated from Nettles Cisa. On Glenwood is 8, 2004, letter received DC November Cisa trial date. In ac- him of the December informing letter, he was taking of that confirmed knowledgement he intended to and indicated representation over Glenwood’s represented Glen- on the merits of the case. Cisa proceed The majority agrees at the latest. wood on November neglectful. conduct thereafter was his v. dissimilitude of the facts Recognizing Graham record, the annunciation as to this juxtaposed Town Loris of of the of Graham principles doctrines law command the same result in this case. The attorney representing the Town summary Loris resigned day before hearing without notifying town his no one resignation. When appeared judgment hearing at the summary court granted case, summary Town of Loris. In this Glenwood, Cisa acknowledged he represented had notice trial, the December 16 yet simply appear failed to trial. Entry of subsequent default and the default judgment against Glenwood resulted from abandonment. Cisa’s His failure to appear at this critical stage litigation any without notice was tantamount unilateral and willful abandon- ment. The rationale in Graham applicable in this equally case: requires “Conscience charge Court to alone his gross dereliction of and not duty to visit its upon an consequences innocent client.”
CONCLUSION opinion of the majority is infected with expository difficulty juxtaposed precedent when extant in South Carolina law on abandonment. I VOTE REVERSE. FSB, BANK, Appellants,
Ex Parte EASTERN SAVINGS v. SANDERS, Jr., Respondent.
Albert J. Savings Bank, FSB, Plaintiff, In re Eastern Roy Rouse, Roy Rouse; Rouse, A. C. Jean a/k/a a/k/a Rouse; Rental, Inc.; Jean Neff Oswald Lumber, Inc.,
Wholesale Defendants.
No. 4234.
Court of Appeals of South Carolina. April
Heard 2007. April 16,
Decided