*1 HAMMOND, Horry THOMPSON, Respondent Sidney F. John v. C. Defendants, Claiming Doe, Any an Interest of whom Persons Other Horry County Doe are Petitioners. and John 900) (382 S. E.
Supreme Court *2 Cynthia Howe, James B. Van Osdell and Graham of Van Osdell,Lester, Stewart, Brittain, P.A., Myrtle McCutchen & Beach, petitioners. for Henry Brittain, John P. and Emma Conway, Ruth for
respondent. 7, Heard Dec. 1988. July 31,
Decided 1989. Justice;
Toal, dispositive in issue this case is whether a relief from judgment ordering closing circuit court county of a granted mistake, inadvertence, should he because a prise, neglect pursuant and/or excusable to South Carolina 60(b)(1). Rule granted of Civil Procedure We to certiorari Appeals Thompson review the in decision Hammond, al., (Ct. App. et 1987),which affirmed the trial court. reverse the Court grant and new trial a to the landowners.
Thompson portion filed to this action close a of a Horry County road in to divide land between him- Hammond, adjacent self and F. C. the two landowners. At provides the end of the is a boat which access Waterway. to the Intracoastal
Thompson respondents Hammond, Horry named as F. C. any persons other claiming John Doe and an inter- persons in other est the road. John Doe and interested Horry by publication. personally served served. legal When of the interested saw one landowners notice, attorney Thompson’s notified he and informed him of opposition the closing of several landowners to of the him, get in with back touch did
road. When petition among other landowners a landowner circulated opposition to the clos- obtaining approximately 18 names contacted the The landowners then ing of the road. Duncan), (Mr. Alton representative for their area Council peti- presented him with the position explained their tion. oppose the Horry County voted to January, Council Attorney proceed road, directed the position. On of its necessary notified the landowners however, change position and
April Council voted The vote was taken of the road. session, executive, non-public at which Mr. Dun- night late days The vote occurred two not in attendance. can was nor the landowners hearing. Neither Mr. Duncan before change position or the date County’s were notified of the hearing. April appeared non-jury hearing was held on 3. No one A *3 Attorney closing. County The stated opposition to the in upon oppose petition. County the Based that the did not Hammond, Thompson testimony provided by the property the be and ordered that closed the Thompson The Order was and Hammond. between divided April filed 1986. The subsequently learned of the Order.
The landowners judgment County for relief from the and landowners moved judge separate motions were denied. in motions. Both by County the statements that the was barred concluded attorney hearing. regard the by during the made its landowners, judge they the the ruled that failed establish inadvertence, mistake, legally ex- of a sufficient existence neglect surprise, they on that could cusable conclusively established that the merits because it had been by abandoned the that the the road had been beyond repair. landing the warranted and that was personally inspected judge that he the road also noted day the follow- landing the before the and made ing comments: yesterday particular land- out to the personally
“I went landing question. in inspected ing, the road and there, very parking and the is little out There is repair. dangerous state bad of There is a situation there, County out property, and had the retained this they spend money would have to considerable to do so. year, County sued, Until last Council could not be Supreme away sovereign but our Court did with immu- nity sued, and now the can be where there is a governing body, cap Fifty but there is a of Two Hundred against government on Thousand Dollars suits bodies. The Court feels that the took into consideration people signed petition, who this as well as the ex- pense repairs, exposure and the maintenance and lawsuit, up Fifty Dollars, to Two Hundred Thousand got if someone hurt out there.” appeal, On the Court of affirmed the trial court, reasoning that the trial did not his abuse finding parties discretion that en agree regard County. titled to relief. We to the authorized its to not and, therefore, by by barred statements made attorney during hearing. 60(b)(1) pro South Carolina Rule of Civil Procedure motion, upon may party vides the court relieve a “mistake, judgment from a final for surprise neglect.” or excusable Relief under this section court, rests within the sound discretion of the trial whose will appeal showing conclusions not be disturbed absent a of an abuse discretion. an abuse arises when Such judge issuing order controlled an error of law or order, conclusions, upon when the based factual is without evidentiary support. Goodson Insur v. American Bankers Company Florida, ance C. E. 295 S. 368 S. Pennsylvania Go., (Ct. 1988); *4 Insurance App. Ledford Life (2d) (1976). 267 S. C. 900 The landowners con by tend that the trial was controlled an error of law by apply appropriate required that the he failed to standard this section. rule, party must estab
To'justify under this a relief the a meritorious defense and that lish that he has mistake, by against him inadver judgment taken was neglect. Lightsey & J. tence, H. surprise excusable or Procedure, p. ((2d) Ed. Flanagan, South Carolina Civil to that he 1985). complainant does not have establish The merits, prevail only that but his defense is would the Loris, in Graham v. Town meritorious. As noted (1978): 248 E. S. perfect not be nor one meritorious defense need “[A] guaranteed to at a trial. It need be which can be only hearing judicial inquiry worthy of a or one which is question deserving of some because it raises a of law controversy real investigation discussion or a to arising conflicting or evidence.” real facts from doubtful hearing, the landowners submitted At motions testimony controversy showing that existed as real a public landing had to whether the been abandoned testimony and whether it be closed. The showed that should only Waterway is the access to the Intracoastal side; county it fire trucks for miles on west allows replenish supply hydrants their water in the of fire absence waterway pur as access for recreational serves poses. testimony that the had been also showed scraped by past years, thereby two within the contradicting finding that been it had abandoned for twenty years. Therefore, we that the landowners conclude presented a meritorious defense. judgment
The landowners also contend mistake, against taken them prise neglect. legal agree. or excusable notice newspaper persons in the directed interested to contact Mr. Thompson’s attorney. personally ap When the landowner peared attorney, he before was told that he would be attorney. done, by the contacted When this landowner contacted a member of Council. land opposed. owners were assured that the road would be It is hire true that landowners did not an However, they notify plaintiff file an answer. did position. They their also contacted Council and ob- opposed. tained the assurance that be would They position. change were not notified Council’s they Nor were notified of the date. peculiar
It should be noted that this a case because the private, and, therefore, public, road involved was *5 responsibility County. was the of the This is not the usual subject litigation responsi- situation where the of the is the bility plaintiff of the individual or defendant.
Taking into consideration of the all circumstances sur- rounding this matter and the desire to resolve cases on merits, we conclude that the landowners established excusa- neglect. ble
Finally, argue the landowners that it was reversible judge error for the trial to base his order on his own parte viewing landing. agree. Ralph ex of the Railway Company, Southern E. 158 S. (1930), this Court held that it was reversible error for the judge upon personal trial make a determination based viewing of the scene of the accident. matter, judge’s concerning
In this comments this viewing speculations why about County probably changed position support its the land- judge wrong owners’ contention that the utilized the stan- ruling determining dard on the motions. Rather than defense, whether there was a meritorious deter- mined whether the landowners could on the merits and whether the conclusions of the first correct. above,
For the reasons we discussed find that trial motion, denying court abused its discretion in therefore Appeals affirming the decision of the Court of the lower court as to the landowners is reversed and a new trial is granted. J., JJ., C.
Gregory, Finney, Harwell concur. J., dissenting Chandler, separate opinion. (dissenting): Justice
Chandler, Harmond, spokesman, In the words of their Warren C. betting landowners this case “were on Council to closing].”1 the [road Although initially opposed closing, County it Council subsequently dropped opposition. Unfortunately for the landowners, Duncan, Council, representative Alton their Record, Transcript page 41, line 7. during made meeting when the decision was left the
had public. announced in and later executive session *6 predicament landowners’ described the Mr. Harmond follows:
Well, my guard just down. I assumed that it was I let public property, County’s position to defend my pocket of to defend mine to take dollars out said, well, just position. I property, that was the just back going protected, so we kind land is to be offell supplied.) (Emphasis on it.2 Circuit Court’s denial affirmed 60(b)(1) motion to set aside the landowners’ Rule judgment. virtually Code Ann. 60(b)(1) identical to S. C.
Rule repealed in enact- (1976), 1985 with § 15-27-130 which statute, As under the the Rules of Civil Procedure. ment of party (1) judg- requires moving to establish: the Rule mistake, inadvertence, surprise, through ment taken neglect; (2) existence of a meritorious excusable 160, Supply Gaffney, 297 S. C. 375 defense. Mitchell Co. v. (2d) (Ct. App. 1988). S. E. 321 Majority (1) landowners’ motion is concedes judge, (2) of the trial addressed to the sound discretion discretion arises when the factual conclusions that abuse of evidentiary support or when the decision is controlled lack my judgment the record does not some error of law. In finding in support an of discretion this case. abuse First, judge’s factual is no indication that the trial there contrary, unsupported by To the findings are the evidence. Major- findings with those outlined his are accord ity Opinion.
Second, showing legal error.3 That the there is no pro- Council would landowners “assumed” and “bet” constitute, private cannot be said to as a tect their interests law, mandating 60(b)(1) relief.4 conduct Rule matter 2 Record, 39, supplied.] Transcript page [Emphases lines 13-17. 3 judge’s viewing constitute such error since it does not “mistake, bearing upon regarding had no his decision prise, neglect.” or excusable 4 requirement of the Rule The landowners’ failure to establish the first Hodges unnecessary prong. See makes it to address the meritorious defense Fanning, McInerny Toler, (2d) (1976); v. 260 (1973). S. C. 196 E. S. view, my judge’s the trial decision demonstrates no Accordingly, I would affirm the Court of abuse of discretion. Appeals. BULL, Appellant SMITH, Respondent. D. v. Keith
Alice SMITH, BULL, Respondent. In re Petitioner v. Alice D. Keith BULL, SMITH, Respondent. D. v. Keith Alice Petitioner
(382 (2d) 905) E.S.
Supreme Court