Chapter 60 Relief from Judgment or Order

LibrarySouth Carolina Civil Procedure (SCBar) (2020 Ed.)
Chapter 60 Relief From Judgment or Order
Rule 601

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, leave to correct the mistake must be obtained from the appellate court. The ending of a term of court or departure from the circuit shall not operate to deprive the trial judge of jurisdiction to correct such mistakes. A party filing a motion under this rule shall provide a copy of the motion to the judge within ten (10) days after the filing of the motion.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. The rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. During the pendency of an appeal, leave to make the motion must be obtained from the appellate court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Note:

This Rule 60 is drawn from the Federal Rule. There are minor changes in the language of the Federal Rule. The last sentence of 60(a) was added permitting the trial judge to correct clerical errors even after departure from the circuit. Rule 60(b) deletes subsection (6) of the Federal Rule which permits relief for "any other reason justifying relief from the operation of the judgment." In the Federal Rule subsection (6) has created ambiguity about what is included.

Finally, Rule 60(b) provides, leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually before the appellate court. This permits the motion to be made before the trial court. The United States Supreme Court approved a similar result in tandard Oil Co. v. U.S., 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976). This change will not, except in civil actions, affect S.C. Supreme Court Rule 24, Motions for New Trial upon After-discovered Evidence, which now requires leave by the Supreme Court before the motion can be made in the trial court.

Rule 60(b) is substantially the same as Code § 15-27-130. There are two differences. First, existing State law provides for relief from a "judgment taken against him through his mistake." Rule 60(b) deletes "his" and thus there may be a motion for relief from other mistakes. Second, the statute provides that the relief must be sought within one year. This Rule retains the one year limitation for Rule 60(b)(1)-(3) for mistake, inadvertence, excusable neglect, newly-discovered evidence, and fraud; but permits relief under Rule 60(b)(4) and (5) after one year, but within a "reasonable time" when the judgment is void or the judgment has been satisfied, avoiding the necessity of bringing a new action to set aside the judgment in such cases after one year.

Editor's Note: Effective September 1, 1990, the Supreme Court Rules were repealed by the South Carolina Appellate Court Rules.

Note to 1994 Amendment:

The amendment to Rule 60(a) and (b) clarifies that leave of the appellate court is necessary to correct a clerical mistake or to make a motion to set aside an order of judgment while the appeal is pending. An appeal is pending from the time the notice of appeal is served until the issuance of the remittitur. See Rules 203, 204 and 221(b), SCACR.

Note to 1998 Amendment:

This amendment adds a requirement to Rule 60(a) that a copy of any written motion be provided to the judge. It is intended to help insure that the judge is promptly notified that the motion has been filed.

A. Introduction

Rule 60 prescribes the practice for seeking relief from a final judgment.2 Clerical errors may be corrected at any time under Rule 60(a). Rule 60(b) authorizes a motion in the court in which the judgment was rendered seeking relief because of: (1) mistake, inadvertence, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) void judgment; and (5) judgment satisfied, reversed, or inequitable to enforce.3 Motions under Rule 60(b)(1)-(3) must be made within a reasonable time but not more than one year after the judgment. Motions under Rule 60(b)(4) and (5) must be made within a reasonable time, which may be more or less than one year.

The movant has the burden of establishing the facts justifying the relief sought, normally by affidavit. Statements of counsel and the allegations in the pleadings are not enough.4 In addition, the motion must establish a meritorious defense to the claim to justify granting the relief. A meritorious defense is not one that necessarily will prevail at trial, but rather one raising a question of law deserving of investigation, or a real controversy as to the essential facts arising from conflicting or doubtful evidence.5 Consent judgments may be attacked under Rule 60(b) in particular circumstances.6

Unlike the post-trial motions under Rules 50, 52 and 59, the filing of a motion under Rule 60 does not affect the finality of the judgment attacked and the motion does not toll the time for appeal.7 Likewise, the appeal of the underlying case does not affect the time for filing the motion, although the rule requires that if the case is on appeal, the appellate court must grant leave to file the motion. The filing of the motion does not affect the enforcement of the judgment, which is automatically stayed for ten days from the entry of the judgment, although the court may grant additional time and stay the judgment under Rule 62(b).8 As an alternative to a Rule 60 motion, the court may entertain an independent action in equity to obtain relief from the judgment.9

Rule 60 applies to all judgments, including default judgments and consent judgments,10 and should be read with Rule 55(c), which incorporates the Rule 60 standards into motions for relief from default judgments. Moreover, the proper way to challenge a default judgment is by a Rule 60 motion rather than an appeal.11 Rule 59 motions for a new trial or to alter or amend a judgment often overlap with Rule 60. The major differences are that Rule 59 motions are subject to severe time limits and incorporate any grounds that support a new trial while Rule 60 motions are limited to the five grounds found in that rule and must be made within a "reasonable time," which is not more than one year for some grounds.12

B. Clerical Mistakes

Rule 60(a) permits the trial court to correct clerical errors in judgments, orders, or other parts of the record at any time, even after the case has ended.13 This is an inherent power of courts and does not affect the stability of judgments because the correction makes the judgment accurate.

A clerical error "is a mistake or omission by a clerk, counsel, judge or printer, which is not the result of the exercise of judicial function."14 Thus, the spelling of names, mathematical calculations, scrivener's errors,15 or errors or omissions fall under this section.16 For example, the court upheld amending a default judgment by replacing the defendant's trade name with its corporate name under Rule 60(a)(1) when the defendant was aware of the suit, knew that plaintiff intended to sue the corporate defendant, and knew that the plaintiff had no way of knowing the correct name of the corporation.17 Adding to the judgment the fees of the guardian ad litem required by statute was permissible under this section.18 Likewise, moving part of the opinion granting relief from the text to the decree was permissible under Rule 60(a),19 as was amending an order of foreclosure to comply with statutory time limits.20

However, Rule 60(a) cannot be used to relitigate facts, to change the clear intent of the judgment, or as a means of enforcing a judgment.21 Nor may the court's correction of clerical errors extend to changing the scope of the judgment.22 Thus, it was improper to alter a judgment determining ownership of land to incorporate an adjoining causeway when its ownership was not litigated at trial.23

Similarly, the Supreme Court requires a court order to relieve an attorney of representation, and the failure to file a motion to be relieved as counsel may not be corrected pursuant to Rule 60(a).24

C. Rule 60(b)(1) Mistake; Inadvertence or Excusable Neglect

Rule 60(b)(l) authorizes relief from a final judgment because of mistake, inadvertence, or excusable neglect. The movant must justify the failure to act and establish a meritorious defense to the claim.25 The motion must be filed within a reasonable time but not later than one year after the entry of judgment26 or the ruling on a Rule 59(e) motion.27 The one-year period cannot be extended by the court or by...

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