Chastain v. Hiltabidle

• Decision Date: 22 January 2009
• Docket Number: No. 4487.,4487.
• Citation: 673 S.E.2d 826
• Court: South Carolina Court of Appeals
• Parties: John R. CHASTAIN and Katharine Chastain, Appellants, v. John H. HILTABIDLE, Talle G. Hiltabidle and C. Dan Joyner Company, Inc., Defendants, Of Whom C. Dan Joyner Company, Inc. is the, Respondent.

673 S.E.2d 826

John R. CHASTAIN and Katharine Chastain, Appellants, v. John H. HILTABIDLE, Talle G. Hiltabidle and C. Dan Joyner Company, Inc., Defendants, Of Whom C. Dan Joyner Company, Inc. is the, Respondent.

No. 4487.

Court of Appeals of South Carolina.

Heard December 2, 2008.

Decided January 22, 2009.

Rehearing Denied March 24, 2009.

William H. Ehlies, II, of Greenville, for Appellants.

Samuel W. Outten and Sandi R. Wilson, both of Greenville, for Respondent.

WILLIAMS, J.:

In this action for negligence, Appellants argue the trial court erred in granting summary judgment in favor of Respondent because Respondent's motion for summary judgment was procedurally defective, or, in the alternative, because the trial court erred in holding a realtor does not have a legal duty to investigate latent defects in property or to advise his or her clients on matters outside the scope of his or her expertise. We affirm.

FACTS/PROCEDURAL HISTORY

C. Dan Joyner Company, Inc. (Realtor) provides residential real estate services throughout the Greenville area. Joan Herlong (Agent) is an independent contractor for Realtor who provides services to individuals seeking to purchase or sell real estate. In January 2003, John H. Hiltabidle and Talle G. Hiltabidle (Sellers) engaged Agent in conjunction with the sale of Sellers' residence (the Property).

Agent listed the Property for sale in 2003. Appellants John R. Chastain and Katherine Chastain (Buyers) were interested in purchasing the property and hired Agent.¹ Buyers submitted an offer for the Property and Sellers accepted the offer that same day. Pursuant to S.C.Code. Ann. § 27-50-10 to -110 (Supp.2008), the contract for sale was contingent on Sellers' completion of a form titled "State of South Carolina Residential Property Condition Disclosure Statement" (the Disclosure). According to the express terms of the Disclosure, it was "not a warranty," and it was "not a substitute for any inspections [Buyers] may wish to obtain."

On the Disclosure, Sellers responded affirmatively to two inquiries. First, they responded "yes" to a question that asked: "Water seepage, leakage, dampness or standing water or water intrusion from any sources in any area of the structure?" Sellers explained their affirmative response to this question in the Comments section of the Disclosure, describing two past flooding events:

Early 1990's: Hurricane Hugo. Some storm runoff in garage [and] laundry room due to blockage of culvert under Wembley Rd. Action [taken]: Re-landscape to allow water to flow toward creek.

Fall 2002: Major tropical storm caused major flooding [and] road damage (throughout Greenville)—Very light water seepage into garage due to blockage of culvert under Wembley. Action taken: City improved swale along Wembley Rd. Project started to install a device to prevent blockage of culvert.

The creek on [the Property] has never exceeded its banks.

Second, Sellers responded "yes" to a question that asked, "Flood hazards or that the property is in a federally designated flood plane [sic]?" In a handwritten note next to their "yes" answer, Sellers wrote, "Ground floor above 100 [year] flood level."

Following Buyers' purchase of the Property, two days of rain resulted in several inches of water intrusion onto the Property, causing damage to Buyers' furniture and to the Property itself.

Buyers filed an initial summons and complaint alleging causes of action for negligence and fraud² against Sellers arising out of the statements in the Disclosure. An amended complaint added Realtor as a defendant. A second amended complaint added Agent as a defendant. All defendants answered denying the allegations of the complaint. The parties agreed to dismiss Agent as an individual defendant on the stipulation that, at all times relevant to this action, she was acting within the course and scope of her employment with Realtor.

Realtor filed a motion for summary judgment on the negligence cause of action and included a written memorandum in support. In the memorandum in support, Realtor asserted two arguments. First, the Disclosure did not contain any substantively inaccurate or misleading information. Second, Realtor did not have actual or constructive knowledge of the alleged inaccuracies in the Disclosure. Buyers filed a motion in opposition to Realtor's motion for summary judgment and a hearing was held on Realtor's motion. Following oral arguments, the trial court granted summary judgment in favor of Realtor on the basis that Realtor did not have a legal duty to investigate latent defects in properties or to advise clients on matters outside the scope of its expertise.

A Form 4 reflecting the trial court's decision was entered on April 24, 2007. Thereafter, Buyers filed a Rule 59(e) motion in which they argued the trial court did not issue a detailed order reflecting its findings of fact and conclusions of law, did not rule on their Rule 7(a) Due Process argument, and did not comply with the rule that novel issues should be decided with a full and complete record. The trial court issued a seven-page order in which it set forth the factual and legal basis for finding in favor of Realtor. Buyers responded by filing a second Rule 59(e) motion, the substance of which was essentially identical to their previous Rule 59(e) motion. This motion was denied without a hearing. This appeal follows.

STANDARD OF REVIEW

An appellate court reviews the grant of summary judgment under the same standard applied by the trial court. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). The trial court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Rule 56(c), SCRCP; Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 334 (2003). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). A court considering summary judgment makes neither factual determinations nor considers the merits of competing testimony. David, 367 S.C. at 250, 626 S.E.2d at 5. However, summary judgment is appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner. Id. To survive a motion for summary judgment, the non-moving party must offer some evidence that a genuine issue of material fact exists as to each element of the claim. Steele v. Rogers, 306 S.C. 546, 552, 413 S.E.2d 329, 333 (Ct. App.1992).

LAW & ANALYSIS

1. Due Process/Notice

Realtor first argues the trial court's grant of summary judgment should not be reversed on procedural grounds because Buyers failed to present their current argument, that Realtor's summary judgment motion did not comply with Rule 7(b)(1), SCRCP, and Rule 56, SCRCP, to the trial court at the motion hearing or in their motion for reconsideration. We disagree.

It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court. Lucas v. Rawl Family Ltd. P'ship, 359 S.C. 505, 510-511, 598 S.E.2d 712, 715 (2004). When an issue is raised to but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e) motion. See Wilder Corp. v. Wilke, 330 S.C. 71, 77, 497 S.E.2d 731, 734 (1998) (noting that proper use of a Rule 59(e) motion is to preserve issues raised to but not ruled upon by the trial court); Walsh v. Woods, 371 S.C. 319, 325, 638 S.E.2d 85, 88 (Ct.App.2006) (finding issue on appeal was not preserved because the trial court did not rule on the issue and it was not raised in a Rule 59(e) motion).

Buyers argued in their motion in opposition that Realtor's motion for summary judgment "should be dismissed as violative of SCRCP 7(b) because it does not particularize the grounds upon which the relief is sought and therefore fails to provide notice to the adverse party in violation of due process guarantees." Thus, the issue of Rule 7(b) was timely raised to the trial court.³ However, at no time thereafter did the trial court specifically rule on this issue. When the issue was raised but not ruled upon, it became incumbent upon Buyers to raise the issue in a Rule 59(e) motion. Wilder Corp., 330 S.C. at 77, 497 S.E.2d at 734. Buyers filed not one but two Rule 59(e) motions. The substance of these motions, which are essentially identical, is limited to the following arguments:

This motion is made pursuant to SCRCP, Rule 59(e). The grounds for the motion are that the court's [order] ... is incomplete and ambiguous, sets forth neither findings of fact nor conclusions of law, fails to set forth the court's reasoning for its rulings, does not rule upon the plaintiffs [sic] SCRCP 7(a) Due Process argument, is impossible to review on appeal, violates the rule that novel issues should be decided with a full complete record, and it fails to fairly set forth facts in the record that contradict the assertions made in the order.

(emphasis added).

Buyers base their argument to this court on Rule 7(b)(1), SCRCP.⁴ In their Rule 59(e) motions to the trial court, however, Buyers asserted a "Rule 7(a) Due Process argument," rather than a Rule 7(b)(1) argument.⁵ In light of this apparent scrivener's error, Realtor argues Buyers failed to properly present their Rule 7(b)(1) argument to the trial court and, therefore, may not argue the issue now. We disagree.

Although Buyers' Rule 59(e) motion is technically insufficient to preserve the issue of Rule 7(b)(1), this Court will not apply the rules of error preservation so rigidly as to bar an...