AGO 90-19.

• Case Date: February 12, 1990
• Court: South Carolina

South Carolina Attorney General Opinion 1990. AGO 90-19. 90-19February 12, 1990TO: Master In EquityGeorgetown County FROM: Edwin E. Evans Chief Deputy Attorney General 1) A damage-assessment hearing with notice to the party in default is required prior to the entry of the default judgment whenever the claim is for unliquidated damages. 2) Two Supreme Court cases are instructive regarding the procedure to be followed in the event the court holds a damage-assessment hearing. 3) The law is not clear regarding the definition of the term "liquidated damages" in the context of a default proceeding.You have requested the opinion of this Office regarding certain questions that arise in the court's handling of default matters. You suggest in your request letter that the South Carolina Rules of Civil Procedure are not completely clear regarding when a default judgment may be entered upon the pleadings as contrasted to when a damage-assessment hearing must be held prior to the entry of the default judgment.(fn1) You further suggest that, in your opinion, a damage-assessment hearing is required prior to the entry of the default judgment unless the claim is for liquidated damages. Generally, I concur with these conclusions and, in so doing, I note my appreciation for your thorough research upon the questions. Former South Carolina Code Section 15-35-310(fn2) generally provided for the entry of a default judgment without the necessity of a damage-assessment hearing in the following actions for recovery of money only:

(1) When the demand was liquidated; or

(2) When the demand was unliquidated and the complaint was served with an itemized verified statement of account.

Howard V. Holiday Inns, Inc., 271 S.C. 238, 246 S.E.2d 880 (1978). Again, default proceedings are currently governed by the South Carolina Rules of Civil Procedure. Rule 5(a) of the Civil Rules requires, among other things, that "notice of any trial or hearing on unliquidated damages shall also be given to parties in default." The official commentators to the Rules suggest in this context that "{g}enerally, if relief other than money damages is sought, or the amount is unliquidated, an evidentiary hearing is required." Lightsey and Flanagan, South Carolina Civil Procedure, at 80. This requirement of notice and an opportunity to be heard where the claim is for unliquidated damages traces the Court's teachings that predate the enactment of the Rules of Civil Procedure. The Supreme...