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Gecy v. South Carolina Bank & Trust

Court of Appeals of South Carolina

February 21, 2018

Benjamin Gecy, Appellant,
South Carolina Bank & Trust, Jaime Hamner and Deborah Hamner, Respondents. Appellate Case No. 2014-002712

          Heard June 8, 2017

         Appeal From Beaufort County Marvin H. Dukes, III, Circuit Court Judge.

          Robert V. Mathison, Jr., of Mathison & Mathison, of Hilton Head Island, for Appellant.

          James John Wegmann, of Weidner, Wegmann & Harper, LLC, of Beaufort, for Respondents Jamie Hamner and Deborah Hamner; and Thomas A. Holloway, of Harvey & Battey, PA, of Beaufort, for Respondent South Carolina Bank & Trust.

          McDONALD, J.

         Benjamin Gecy appeals the circuit court's grant of summary judgment in favor of South Carolina Bank & Trust (Bank), Jaime Hamner, and Deborah Hamner (collectively, the Hamners), arguing summary judgment was improper because material questions of fact exist as to whether Bank intentionally interfered with the contracts between the Hamners and Gecy, whether the Hamners breached their contracts with Gecy, and whether Bank and the Hamners made negligent misrepresentations. Gecy further asserts the circuit court erred in declining to continue the summary judgment hearing so Gecy could compel discovery responses and take additional depositions. We affirm.

         Facts and Procedural History

         This case arises from a failed real estate and construction transaction between Gecy and the Hamners. In February 2010, the Hamners contracted to purchase 10 Meredith Lane, a parcel on a private road in Beaufort County, from Gecy for $150, 000. Additionally, the Hamners contracted for Gecy to build them a house on the property for $156, 900. Gecy referred the Hamners to Bank for financing. Later in February 2010, Bank informed Gecy that in order to approve the Hamners' financing application, all property owners on Meredith Lane needed to sign a road maintenance agreement (RMA).

         According to Gecy, RMAs are generally only required for Veterans Affairs (VA) loans. Gecy contends Bank's own internal policies did not require the RMA; thus, under Gecy's theory, Bank misrepresented that the signed RMA was a requirement for approval of the Hamners' non-VA construction loan. Bank explained that the VA does not have a construction loan program, so the plan was for the Hamners' loan to begin as a conventional construction loan and roll over into a VA loan once construction was completed. Because the VA requires an RMA for its loans, Bank's policy in such situations is to require the RMA before closing on a construction loan when "the permanent loan would require it."

         Closing on the transaction was originally scheduled for March 5, 2010, but when the closing did not occur, an automatic thirty-day extension took effect. On April 5-the date the extension expired-Gecy notified Bank that all necessary landowners had either signed or agreed to sign the RMA. However, neither Gecy nor the Hamners ever presented Bank with an RMA signed by all property owners. On April 9, 2010, the Hamners' attorney informed the closing attorney that the contracts were null and void because the Hamners were denied financing based, in part, on Gecy's failure to provide the signed RMA by April 5. Gecy then sued Bank for tortious interference with contract and unfair trade practices, alleging Bank "directed or otherwise motivated" the Hamners away from their contracts with him. Separately, Gecy sued the Hamners for breach of contract. Finally, Gecy sued both Bank and the Hamners for civil conspiracy and negligent misrepresentation.

         In March 2012, Bank moved for summary judgment-which the Hamners later joined-based in part on an affidavit from Diana Chalmers (Diana). Diana's affidavit stated she owned property on Meredith Lane and never signed the RMA, despite Gecy's repeated requests.

         In July 2012, Gecy filed for bankruptcy, and the case was stayed until the bankruptcy discharge in November 2013. In February 2014, Gecy filed a pro se motion to compel discovery responses and a motion to continue the summary judgment hearing. In the motion for a continuance, Gecy asserted Diana's recent deposition testimony contradicted certain statements in her affidavit. Consequently, Gecy requested time to depose two additional witnesses: Diana's husband, Ed Chalmers, and "newly discovered witness" Robert Walters.[1]

         The court denied Gecy's motion for a continuance and following a hearing, granted summary judgment in favor of Bank and the Hamners. At the subsequent hearing on his motion to reconsider, Gecy-now represented by counsel-argued his misrepresentation claim against Bank was valid, citing § 552 of the Restatement (Second) of Torts (1977). Gecy further argued the continuance should have been granted because he had actively prosecuted the case at all times, except during the bankruptcy stay. In response, Bank argued § 552 was inapplicable, and Kerr v. Branch Banking & Trust, 408 S.C. 328, 759 S.E.2d 724 (2014), was dispositive.

         In September 2014, the court denied Gecy's motion to reconsider but amended its previous order. The court found Kerr controlled and was a "complete bar" to Gecy's claims against Bank. Specifically, the court cited Kerr for the proposition that Gecy could not maintain an action against Bank because he was not a party to the Hamners' financing application.[2] Thereafter, Gecy appealed the grant of summary judgment, but only with respect to the causes of action for intentional interference with contract, breach of contract, and negligent misrepresentation.

         Standard of Review

         "In reviewing an order for summary judgment, the appellate court applies the same standard which governs the trial court under Rule 56 of the South Carolina Rules of Civil Procedure." M & M Grp., Inc. v. Holmes, 379 S.C. 468, 473, 666 S.E.2d 262, 264 (Ct. App. 2008). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Rule 56(c), SCRCP). "On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the appellant, the non-moving party below." Id. (quoting Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004)). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." Id. (quoting David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006)). "[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment." Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

         Law and Analysis

         A. Gecy's Claims Against Bank

         1. Negligent ...

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