B & B Liquors, Inc. v. O'NEIL, No. 3868.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Docket NumberNo. 3868.
PartiesB & B LIQUORS, INC., Respondent, v. Jeffery O'NEIL, Appellant.
Decision Date27 September 2004

361 S.C. 267
603 S.E.2d 629

B & B LIQUORS, INC., Respondent,
v.
Jeffery O'NEIL, Appellant

No. 3868.

Court of Appeals of South Carolina.

Heard September 9, 2004.

Decided September 27, 2004.


361 S.C. 268
Melvin Richardson Hyman, Jr., of Charleston, for Appellant

James Earle Reeves, of Summerville, for Respondent.

ANDERSON, J.:

B & B Liquors, Inc., (B&B) brought this breach of contract action against Jeffery O'Neil (O'Neil). The trial court granted B&B summary judgment in a one-sentence form order. We vacate the order and remand to the circuit court.

FACTUAL/PROCEDURAL BACKGROUND

On February 27, 2000, O'Neil contracted with B&B through its sole officer and shareholder, Bruce Meadows (Meadows), to purchase a liquor business. The contract called for an up-front payment of $30,000, thirty-six monthly payments of $2,566, and a balloon payment of $102,136 due at the end of the thirty-six months. The contract further provided that if a monthly payment was more than ten days overdue, the interest rate would increase from nine and one-half percent to fourteen percent. If payment was more than thirty days late, the entire balance would become due.

From April 1, 2000 through September 1, 2000, O'Neil made the required monthly payments. Meadows died in September of 2000. As a result, O'Neil missed the October 2000 installment but resumed the monthly payments once he received notice of where they were to be sent. After missing the October installment, O'Neil fulfilled his obligations from November 2000 through April 2001. However, in May 2001, he stopped making payments.

B&B initiated this action on March 8, 2002 to recover the balance due under the contract plus prejudgment interest.

361 S.C. 269
O'Neil answered and counterclaimed alleging mistake, negligent misrepresentation, and fraud

B&B filed a motion for summary judgment contending the amount owed was not contested and there was no genuine issue of material fact in the case. A summary judgment hearing was set for May 27, 2003, but O'Neil was not given proper notice of the hearing. However, counsel for B&B informed O'Neil's attorney of the hearing a few hours before it was to take place. O'Neil's counsel attended in order to avoid delay, requesting only that he be given time to submit affidavits and memoranda pursuant to Rule 56, SCRCP.

After hearing the arguments, the trial judge allowed O'Neil ten days — or until June 6, 2003 — to file documents in opposition to the summary judgment motion. On June 4, 2003, O'Neil filed by mail a memorandum and an accompanying affidavit. Copies were mailed to the judge on the same day. The clerk of court received and filed the documents on June 6, 2003.

O'Neil's affidavit included his testimony that Meadows provided him incorrect sales and income figures. O'Neil attached a tax return for the year 1998 and a sales report for that same year which reveal discrepant sales, costs, and profit accounts. According to the affidavit, Meadows gave O'Neil the sales report before the sale. Not until after O'Neil took over the business did he discover the tax return. He stated Meadows gave him other incorrect documents which had been lost. O'Neil averred his accountant could attest to the lost documents, but he did not provide an affidavit by his accountant. Finally, he testified that Meadows made a number of false statements to him in connection with the sale of the business.

On June 4, 2003 — presumably prior to receipt of the memorandum and affidavit from O'Neil — the trial judge signed the form order granting summary judgment to B&B. The clerk of court filed the order on June 6, 2003, the day the documents were due. The court's form order stated: "Plaintiff's motion for summary judgment is granted." This...

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29 practice notes
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...to judgment as a matter of law. Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 611 S.E.2d 922 (2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004). In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); Wogan, 366 S.C. at 592, 623 S.E.2d at 112; B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App. LAW/ANALYSIS I. Appellants v. Crescent Appellants contend the circuit court erred in holding exceptions (5) and ......
  • Hooper v. Ebenezer Senior Services, No. 4350.
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2008
    ...issues. Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App.2004). LAW/ANALYSIS I. Timely Service under Rule 3(a) Hooper maintains the trial court erred in granting Eb......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...925 (2005); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 622 S.E.2d 733 (Ct.App. 2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004). In determining whether any triable issue of fact exists, the evidence and all inferences that can reasonably be......
  • Request a trial to view additional results
29 cases
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...to judgment as a matter of law. Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 611 S.E.2d 922 (2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004). In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); Wogan, 366 S.C. at 592, 623 S.E.2d at 112; B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App. LAW/ANALYSIS I. Appellants v. Crescent Appellants contend the circuit court erred in holding exceptions (5) and ......
  • Hooper v. Ebenezer Senior Services, No. 4350.
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2008
    ...issues. Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App.2004). LAW/ANALYSIS I. Timely Service under Rule 3(a) Hooper maintains the trial court erred in granting Eb......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...925 (2005); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 622 S.E.2d 733 (Ct.App. 2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004). In determining whether any triable issue of fact exists, the evidence and all inferences that can reasonably be......
  • Request a trial to view additional results

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