Edwin M. Smith, Jr., Appellant,
David Fedor, Respondent. Appellate Case No. 2014-001826
February 7, 2017
From Richland County DeAndrea G. Benjamin, Circuit Court
R. Gilreath and William Mitchell Hogan, both of The Gilreath
Law Firm, PA, of Greenville for Appellant.
Katherine Carruth Goode, of Winnsboro, for Respondent.
Smith, Jr. appeals the trial court's order granting David
Fedor's motion for relief from judgment, arguing (1) the
trial court erred in refusing to consider the confidential
settlement agreement in determining whether Fedor satisfied
the confession of judgment, (2) the trial court should have
considered the merits of Smith's motion for
reconsideration even though it was not provided to the court
within ten days of filing, and (3) this court should remand
the matter to the trial court for denial of the motion for
relief from judgment because the confidential settlement
agreement is sufficiently clear, explicit, and unambiguous.
1998, Smith filed a lawsuit against Fedor, which resulted in
a "mediated settlement" in 2002. As part of the
settlement, Fedor executed a confession of judgment for $350,
000 plus post-judgment interest to serve as security against
the debt owed to Smith; in return, Smith released all claims
and dismissed his lawsuit with prejudice. The confession of
5. The indebtedness owed by [Fedor] to [Smith] arose pursuant
to a Confidential Settlement Agreement between [Fedor] and
[Smith] dated September 17, 2002, in which the lawsuit . . .
was settled. . . .
7. [Fedor] hereby authorizes the entry of an Order and
judgment against [him, ] and in favor of [Smith, ] in the
principal amount of $350, 000, less any payments received by
[Smith] from [Fedor] through the date of filing hereof. . . .
confession of judgment also stated it "may not be
filed" until Fedor defaulted on his obligations "as
set forth in the Confidential Settlement Agreement."
February 27, 2013, Smith filed the confession of judgment and
a partial satisfaction of judgment with the trial court. The
partial satisfaction of judgment claimed Fedor paid $335, 000
but still owed $15, 000 pursuant to the confession of
judgment. Fedor moved for relief from judgment pursuant to
Rule 60(b)(5), SCRCP, asserting he had paid Smith more than
$350, 000, satisfying the debt. Smith filed a response to
Fedor's motion for relief, stating the confidential
settlement agreement required Fedor to pay a total sum of
$400, 000-$50, 000 up front, followed by annual installment
payments of $35, 000 secured by the confession of judgment.
Smith contended the $50, 000 initial payment was not included
in the $350, 000 debt secured by the confession of judgment,
and neither the agreement nor the judgment indicated the
initial payment of $50, 000 would be credited toward the
August 26, 2013, the trial court held a hearing on
Fedor's motion for relief from judgment. At the hearing,
both parties agreed Fedor had paid $385, 000 to Smith; the
dispute concerned whether Fedor owed Smith an additional $15,
000. Fedor argued the confession of judgment stated only the
amount of $350, 000, he had satisfied the judgment, and was
not obligated to pay any additional amount. Fedor entered an
affidavit into evidence stating he "paid to [Smith]
… the sum of $385, 000[, ] that sum being in excess of
the sum recited in [Fedor]'s Confession of Judgment and
that the Confession of Judgment should be deemed
satisfied." Fedor asserted the confession of judgment is
final and the parties cannot "inquire behind the
confession and seek to now reargue the merits." Smith
countered that the parties settled for $400, 000, as provided
for by the confidential agreement, and Fedor still owed $15,
000. Smith mentioned an affidavit from James Gilreath that
stated the total amount due was $400, 000 including $50, 000
to be paid prior to the signing of the confession of
judgment, but the Gilreath Affidavit was never offered or
entered into evidence. Smith conceded Fedor had paid $385,
000, but that included the initial $50, 000 payment; thus,
Smith maintained Fedor had paid only $335, 000 of the amount
secured by the confession of judgment.
objected to any introduction or discussion of the
confidential settlement agreement, which he said was not in
evidence, "full of scratch-overs and strike-throughs,
" and "not clear upon its face." Fedor
contended "the confession of judgment ended the
case" and was "clear and concise on its face"
that the amount owed was $350, 000. Smith countered that
"the confession of judgment . . . ha[d] to be read in
the context of the [four]-page confidential settlement
agreement." The trial court requested the parties submit
memoranda regarding when ...