Tomlinson v. Eddie's Towing Service

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

Christopher M.
Tomlinson, Appellant,

v.

Eddie's Towing
Service, LLC, County Towing and Recovery, LLC, Jimmy's Automotive, and James
Hoover,  Respondents.

Appeal From Lexington County

R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No.   2010-UP-509

Submitted November 1, 2010 – Filed
November 19, 2010

AFFIRMED

Frank B. McMaster, of Columbia, for
Appellant.

Robert N. Hill, of Newberry, and Adrian L.
Falgione, of Lexington, for Respondent Eddie's Towing Service, LLC. 

PER CURIAM:  Appellant
Christopher Tomlinson brought this conversion action against Eddie's Towing
Service, LLC, County Towing and Recovery, LLC, Jimmy's Automotive, and James
Hoover to recover damages for the impoundment of his automobile following his
refusal to pay allegedly excessive towing fees.  In this appeal, Tomlinson
challenges the circuit court's denial of his motion under Rule 60(b), SCRCP,
for relief from a judgment denying immediate return of the automobile.  We affirm pursuant to Rule 220(b), SCACR,
and the following authorities:

1. As to
whether the circuit court erred in
finding that the Rule 60(b)(5) motion was not timely filed:  Rule 60(b), SCRCP (requiring a motion
for relief from a judgment to be made within a reasonable time); Evans v.
Gunter, 294 S.C. 525, 529, 366 S.E.2d
44, 46 (Ct. App. 1988) (holding that relief from a judgment is granted for
extrinsic fraud but not intrinsic fraud).       

2. As to
whether the circuit court committed
reversible error in failing to conclude that Tomlinson met the standard for
relief under Rule 60(b)(5):  Rule 220(c), SCACR ("The appellate court may
affirm any ruling, order, decision or judgment upon any ground(s) appearing in
the Record on Appeal."); Rule 60(b)(5), SCRCP (stating that the court may
relieve a party from a final judgment when "it is no longer equitable that
the judgment should have prospective application"); Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 48-49, 590 S.E.2d 502, 505 (Ct.
App. 2003) (stating
that Rule 60(b)(5) is based on the historical power of a court of
equity to modify its decree in light of subsequent conditions and that the test
typically applied to determine whether an order has prospective application is
whether it is executory or involves supervision of changing conduct or
conditions by the court) (internal citations omitted); Id. at
46, 590 S.E.2d at 504 (holding that a party seeking to set aside
a judgment pursuant to Rule 60(b) has the burden of presenting evidence
entitling him to the requested relief). 

3. As to
whether the circuit court committed
reversible error in concluding that the Rule 60(b)(5) motion was moot:  Jensen
v. Conrad, 292 S.C. 169, 172, 355 S.E.2d 291, 293 (Ct. App. 1987) (holding that a judgment will not be reversed for
insubstantial errors not affecting the result).

AFFIRMED.

THOMAS, PIEPER, and
GEATHERS, JJ., concur.