Cisson v. Pickens Sav. & Loan Ass'n, 19372

• Decision Date: 16 February 1972
• Docket Number: No. 19372,19372
• Court: South Carolina Supreme Court
• Parties: W. W. CISSON, Appellant, v. PICKENS SAVINGS AND LOAN ASSOCIATION, Respondent.

Page 822

186 S.E.2d 822

258 S.C. 37

W. W. CISSON, Appellant, v. PICKENS SAVINGS AND LOAN ASSOCIATION, Respondent.

No. 19372.

Supreme Court of South Carolina.

Feb. 16, 1972.

Acker & Acker, Pickens, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

LEWIS, Justice:

This is an appeal from an order granting the motion of defendant for summary judgment. The judgment of the lower court is affirmed.

The present controversy arises out of a prior action brought by plaintiff, W. W. Cisson, in which the defendant, Pickens Savings and Loan Association, intervened as a party and subsequently prosecuted an unsuccessful appeal to this Court. Cisson v. McWhorter, 255 S.C. 174, 177 S.E.2d 603. A summary of the facts surrounding that action is necessary for a proper understanding of the issues presently involved.

In 1967, one Hoyt McWhorter contracted with plaintiff, W. W. Cisson, a contractor, to construct a dwelling for him and secured a mortgage loan on the property from defendant, Pickens Savings and Loan Association, to pay the construction costs. Upon the completion of the house, disagreement arose as to whether plaintiff had been paid in full, which resulted in the filing of a mechanic's lien by plaintiff against the property of McWhorter for a balance claimed to be due.

Subsequently, an action was brought by plaintiff against McWhorter to foreclose the above mechanic's lien. Defendant, Savings and Loan Association, which held a mortgage over the affected property, was not originally made a party to that action but, upon its motion, was permitted to intervene under an order of court. While defendant did not seek a foreclosure of its mortgage, an answer was filed by it in which it alleged the existence of its mortgage, that plaintiff had been paid in full, and therefore had no right to foreclose the mechanic's lien. The defense of defendant in that action was substantially the same as the one interposed by McWhorter. Apparently the defenses interposed by both defendant and McWhorter were based upon certain documents executed by plaintiff in connection with the final disbursement of the mortgage loan by defendant, in which plaintiff allegedly acknowledged that he had been paid in full.

In the course of the trial of the prior case, the trial judge dismissed defendant as a party to the action, since foreclosure of its mortgage was not sought and the parties agreed that it was a first lien upon the property involved. The trial resulted in the award of judgment in plaintiff's favor against McWhorter in the sum of $2,993.66. The court then ordered the foreclosure of the mechanic's lien and the sale of the McWhorter property subject to defendant's first mortgage.

McWhorter did not appeal from the foregoing judgment. However, defendant did appeal, basically, upon the grounds that the trial judge erred in dismissing it as a party defendant and in denying it the claimed right to interpose the defense of payment of plaintiff's claim. The appeal resulted in a holding by this Court that the defendant 'was not aggrieved by the judgment of the trial court, but rather benefited thereby, and is without legal right to appeal therefrom.' Cisson v. McWhorter, supra.

Following the decision by this Court in the prior action, defendant refinanced and increased the amount of its mortgage indebtedness over McWhorter's property from $8,922.17 to $12,400.00. This was done apparently for the purpose of enabling McWhorter to pay plaintiff's judgment and avoid sale of the property under the mechanic's lien. After deducting loan costs, there remained due to McWhorter the sum of $3,385.07 from the proceeds of the additional loan. Out of these funds, McWhorter authorized the payment to plaintiff of the sum of $2,993.66, the face amount of plaintiff's judgment, plus $112.24 as court costs, making a total of $3,105.90. Plaintiff refused to accept that amount in settlement, contending that he was entitled, in addition, to interest from the date of the rendition of the mechanic's lien judgment. When McWhorter refused to pay the interest demanded and plaintiff refused to accept the amount offered in full settlement of the judgment, defendant paid to McWhorter the sum of $3,385.07, representing full disbursement of the additional loan.

The foregoing was followed by the institution of the present action by the plaintiff against the defendant. In response, defendant answered and filed a motion for summary judgment, the latter upon the grounds that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. The lower court granted the motion and this appeal by plaintiff followed.

Defendant based its motion for summary judgment upon numerous documents, letters and affidavits, and the transcript of record in the appeal to this Court in the prior case. In response to the motion, plaintiff relied solely upon the pleadings and filed no counter-affidavits.

The motion for summary judgment was made pursuant to Rule 44 of the Circuit Court Rules. Subsection (d) of the Rule states, in part, as follows:

'When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

Since plaintiff made no factual showing in opposition to the motion, the lower court was required, under Rule 4, to grant summary judgment, if, under the facts presented by defendant, it was entitled to judgment as a matter of law.

The complaint in this matter purports to set forth two causes of action. The allegations of the first characterize it as one for malicious abuse of process. Plaintiff, in his brief, says that recovery is sought for alleged abuse of process and/or malicious prosecution. In any event, it is undisputed that the basis for the first cause of action, by whatever name it is designated, is the alleged wrongful intervention by the defendant, as a party, in the prior action, and defendant's subsequent unsuccessful appeal therein to this Court--all done, it is alleged, without probable cause and with malicious intent to damage plaintiff's business and reputation and defeat the collection by plaintiff from McWhorter of an honest debt.

The second cause of action seeks recovery from defendant for the amount of plaintiff's judgment against McWhorter, plus interest thereon, upon the theory that in refinancing McWhorter's loan there was a legal duty upon defendant to withhold an amount sufficient to pay the mechanic's lien judgment, plus interest thereon.

The causes of action present different issues and will be considered separately. Plaintiff argues, with respect to the first, that the record discloses factual issues for determination upon the merits, either on the basis of malicious prosecution or abuse of process. We consider first the contention that the facts constitute malicious prosecution.

We have recognized that an action will lie for the malicious prosecution of 'either civil or criminal' proceedings. Parrott v. Plowden Motor Co., 246 S.C. 318, 143 S.E.2d 607; Hyde v. Southern Grocery Stores, Inc., 197 S.C. 263, 15 S.E.2d 353. In Parrott, the action was based upon a criminal prosecution and, in Hyde, upon an attachment of property.

Whether or not the action for malicious prosecution covers an ordinary civil action, where there was no arrest or interference with property rights, apparently, has not been heretofore considered in this jurisdiction. It has been considered in other jurisdictions...