Assistive Technology Medical Equipment Services, LLC v. DeClemente

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

Assistive Technology Medical Equipment Services, LLC,
Respondent,

v.

Hood & Selander, CPAS, LLC; Donna C. Cash, as
Personal Representative of the Estate of Dorothy A.
Connelly; W.E. Applegate, III, as Personal
Representative of the Estate of James B. Connelly,
Kimberly Cuce; Phillip DeClemente, Defendants,

Of whom Phillip DeClemente is the Appellant.

Appellate Case No. 2018-000460

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge,
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2020-UP-225
Submitted March 2, 2020 – Filed July 29, 2020
Withdrawn, Substituted, and Refiled December 23, 2020

AFFIRMED

Cameron Lee Marshall, of Charleston, for Appellant.
James Emerson Smith, Jr., of James E. Smith Jr., PA, of
Columbia, for Respondent.

PER CURIAM: Assistive Technology Medical Equipment Solutions
(ATMES/Respondent) sued Phillip DeClemente (Appellant) under various causes
of action. This appeal arises from an entry of default judgment against Appellant.

The lower court issued an order entering default against Appellant on April 30,
2014. The court found Appellant was properly served with the complaint on
December 1, 2011, and noted that Appellant had demonstrated good cause for
relief under Rule 55(c) of the South Carolina Rules of Civil Procedure until May
2012 because of a hospitalization. However, the court found there was no good
cause for the failure to respond from the time Appellant obtained counsel in May
2012 to the first filing in August 2012. After the hearing on Respondent's motion
to set damages, the lower court issued an order on December 21, 2017, finding
damages against Appellant for $875,144.

Appellant argues the lower court abused its discretion in finding Appellant did not
establish good cause to set aside the entry of default and in finding no sufficient
grounds for relief from the default judgment. We disagree.

The decision whether to set aside an entry of default or a
default judgment lies solely within the sound discretion
of the trial judge. The trial court's decision will not be
disturbed on appeal absent a clear showing of an abuse of
that discretion. An abuse of discretion occurs when the
judge issuing the order was controlled by some error of
law or when the order, based upon factual, as
distinguished from legal conclusions, is without
evidentiary support.

Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 606-07, 681 S.E.2d
885, 888 (2009)(internal citations omitted).

The standard for granting relief from an entry of default under Rule 55(c) is mere
"good cause." Rule 55(c), SCRCP. "This standard requires a party seeking relief
from an entry of default under Rule 55(c) to provide an explanation for the default
and give reasons why vacation of the default entry would serve the interests of
justice." Sundown, 383 S.C. at 607, 681 S.E.2d at 888. "The trial court need not
make specific findings of fact for each factor if there is sufficient evidentiary
support on the record for the finding of the lack of good cause." Id. at 608, 681
S.E.2d at 888.

Here, the lower court did not abuse its discretion in finding Appellant had not
demonstrated good cause for avoiding default after May 2012. The court found
Appellant had the benefit of prior counsel, and the motion for relief from default
was not timely. Appellant did not put forth a satisfactory explanation for the
default. This finding is well supported by the record, and is not controlled by an
error of law.

Further, we disagree with Appellant's contention that the lower court should have
considered the "full and final release" executed by the parties when determining
damages. Relief under Rule 60(b), SCRCP, requires a showing of mistake,
inadvertence, excusable neglect, surprise, newly discovered evidence, fraud,
misrepresentation or "other misconduct of an adverse party." Sundown, 383 S.C. at
608, 681 S.E.2d at 888 (citing Rule 60(b), SCRCP). Appellant failed to show any
of the necessary elements under Rule 60(b). "The standard for granting relief from
a default judgment under Rule 60(b) is more rigorous than the 'good cause'
standard established in Rule 55(c)." Id. The record supports the amount of
damages determined by the court.

Appellant contends the lower court erred by denying his motion for a continuance
and by allowing Respondent's expert witness, Art Bradham, to testify. We
disagree. "The granting or denial of a continuance is within the sound discretion of
the trial judge and is reviewable on appeal only when an abuse of discretion
appears from the record." S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 51,
413 S.E.2d 835, 838 (1992). "Qualification of an expert and the admission or
exclusion of his testimony is a matter within the sound discretion of the trial
court." Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506,
509 (2005). "An abuse of discretion occurs when the ruling is based on an error of
law or a factual conclusion that is without evidentiary support." Id. at 26, 609
S.E.2d at 509.

Accordingly, the orders of the lower court are

AFFIRMED.1

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
HUFF, THOMAS, and MCDONALD, JJ., concur.