Lollis v. Dutton, Appellate Case No. 2015-001861

• Decision Date: 01 November 2017
• Docket Number: Opinion No. 5522,Appellate Case No. 2015-001861
• Citation: 807 S.E.2d 723,421 S.C. 467
• Parties: Kathleen LOLLIS and Linda Campbell, Appellants/Respondents, v. Lisa DUTTON, Dennis Dutton, and Kelsey Dutton, Respondents/Appellants.
• Court: South Carolina Court of Appeals

421 S.C. 467

807 S.E.2d 723

Kathleen LOLLIS and Linda Campbell, Appellants/Respondents,

v.Lisa DUTTON, Dennis Dutton, and Kelsey Dutton, Respondents/Appellants.

Appellate Case No. 2015-001861

Opinion No. 5522

Court of Appeals of South Carolina.

Submitted September 7, 2017

Filed November 1, 2017

Matthew P. Turner, of Laurens, for Appellants/Respondents.

John R. Ferguson, of Cox Ferguson & Wham, LLC, of Laurens, for Respondents/Appellants.

GEATHERS, J.:

Appellants/Respondents, Kathleen Lollis and Linda Campbell, and Respondents/Appellants, Lisa Dutton, Dennis Dutton, and Kelsey Dutton (collectively, the Duttons), have filed cross-appeals from the circuit court's order in this declaratory judgment action. Appellants/Respondents argue the circuit court erred by concluding (1) Kathleen Lollis (Mother), through her late son, Frank Lollis (Frank), entered into binding contracts with Lisa Dutton and Dennis Dutton to sell two tracts of land and (2) Lisa Dutton (Lisa) overpaid Appellants/Respondents by $850.96. The Duttons argue the circuit court erred by declining to award them attorney's fees and costs. We affirm the circuit court's conclusions that the disputed contracts were binding and Lisa overpaid Appellants/Respondents.¹ Further, we vacate the denial of attorney's fees and costs and remand this issue to the circuit court.

FACTS/PROCEDURAL HISTORY

On October 20, 2011, Lisa entered into a contract of sale for a mobile home and the tract of land on which it was located, Tract A2 on Cemetery Road, i.e., 1032 Cemetery Road, in Ware Shoals.² The contract named Mother as the seller and Lisa as the purchaser and required Lisa to pay a purchase price of $58,650, plus 5 percent annual interest, in monthly installments of $400. The contract also required Lisa to pay county property taxes and Mother to transfer Tract A2 to Lisa when Lisa paid "the purchase price plus all accrued interest" in full. However, the contract provided, "If [Lisa] does not make payments within thirty (30) days of the due date, [Mother] shall have the right to immediately retake possession of the subject property and all payments made by [Lisa] under [the contract of sale] shall be forfeited." The contract was amended on January 4, 2012, to correct the identifying information for the mobile home.

Frank, who lived with and took care of Mother, signed Mother's name to the contract and its amendment.³ John Scurry, Jr., an attorney who handled Frank's real estate transactions, prepared the contract of sale for Tract A2 and signed his name as a witness. Attorney Scurry testified he saw Frank sign Mother's name and he thought he recalled Frank showing him a power of attorney naming Frank as Mother's attorney-in-fact. Lisa testified Frank had told her previously that he had a power of attorney for Mother. At trial, Mother denied that Frank had a power of attorney for her.

Lisa had known Frank for nineteen years and did a lot of real estate business with him and his family. She testified all of the locations where she had lived for the previous ten years were related to the Lollis family and every time she purchased property that was titled in Mother's name, Lisa dealt with Frank and Attorney Scurry. She typically signed documents related to their real estate transactions at Attorney Scurry's office or at his house, and she "never had an issue until" she tried to obtain a deed for Tract A2. Lisa also testified that when she arrived to sign the contract of sale for Tract A2, the contract already had a signature for Mother.

Attorney Scurry testified that Frank did a lot of his business in cash and always carried a lot of cash. Frank typically bought property in other individuals' names and signed their names to documents, including not only Mother but also Roger Davenport, a former employee. In his January 6, 2014 affidavit, Attorney Scurry stated,

Frank did a lot of real estate transactions, but he explained that because of his ‘checkered past[,]’ he generally put the property in other [individuals'] names. Most of his property [was] put in [Mother's name]. It is my opinion that [Mother] knew that Frank titled property in her name.

Barry Adams, who had worked for Frank, testified that Frank "was kind of picky about signing anything. He wouldn't sign anything unless he had a lawyer notary public [sic] present and [made] sure the right person was there to sign." But Adams admitted Frank "didn't put anything in his name." Adams also testified Frank told him he was planning to let Lisa keep the mobile home but also tell her to move it off of Tract A2:

[H]e ... told me ... that the paperwork was all screwed up.... [W]e couldn't find the data plate on the mobile home that [Lisa] lives in and he had other papers with the serial number. The title had been lost. He said that he wanted to give [Lisa] that mobile home but he wanted her to move it somewhere else and get it off of [Mother's] property because he was tired of fooling with it. That it was just a hassle and he wanted it gone and wanted them gone.

When asked why Frank included the land in the contract of sale, Adams stated, "I don't know anything about that. He just said that she was trying to talk him into letting her get that land and it belonged to [Mother]. And he couldn't do that or something like that, something to that effect."

According to Frank's sister, Appellant/Respondent Linda Campbell (Sister), Frank was slowly dying from cancer

as early as 2011. As Frank became increasingly ill, Attorney Scurry prepared a written power of attorney for Mother naming Sister as her attorney-in-fact. Sister's power of attorney for Mother was executed on November 23, 2011. Attorney Scurry explained, "[I]t was sort of agreed that [Sister] was going to kind of take over."

In December 2012, Frank orally agreed to sell Tract A on Cemetery Road to Lisa's husband, Respondent/Appellant Dennis Dutton (Dennis),⁴ rather than to another individual who was interested in the property, if Dennis could "pay [it] off quickly." Therefore, on December 17, 2012, Dennis entered into a written contract to purchase Tract A and the mobile home on this tract. The contract named Mother and Frank as the sellers and Dennis as the purchaser. The contract required Dennis to pay county property taxes and a purchase price of $27,700 in monthly installments of $300, but it did not require the payment of interest on the purchase price. The contract also required Mother and Frank to transfer Tract A to Dennis when the purchase price was paid in full. However, the contract provided, "If [Dennis] does not make payments within thirty days [ ] of the due date[, Mother and Frank] have the right to immediately retake possession of the subject properties."

Frank and Lisa drafted this contract at the county library. Lisa explained that Frank asked her to draft the contract using previous contracts drafted by Attorney Scurry as templates. Lisa testified they then "went back to the house," and Frank and Dennis signed the contract there. Lisa further testified she and her daughter, Respondent/Appellant Kelsey Dutton (Kelsey), witnessed Frank and Dennis signing the contract. According to Lisa, Frank then took the contract to Mother to obtain her signature. Heather Fields, the Town Clerk for the Town of Ware Shoals, testified Lisa and Frank brought the contract to Fields that same day for her to notarize. Fields stated that Frank and Lisa signed the contract in Fields' presence before she notarized it.

As Frank was approaching death, Lisa called Attorney Scurry to ask "what was going to happen about her payments and all" and "if Frank had contacted [him] about a deed." When Attorney Scurry told Lisa that Frank had not contacted him, Lisa informed Attorney Scurry she was going to visit Frank at the hospice house in Greenwood. According to Sister, Frank went into hospice care the last week of his life, and he died on April 28, 2013. Sister testified she and Mother "couldn't see any peace from [Frank] dying on his deathbed for [Lisa] calling him on the phone taking [chemotherapy]."

A few days after Frank died, Lisa approached Sister about making a payment on Tract A2 and the mobile home. Sister testified she did not know what Lisa was talking about at the time and she asked Lisa to give her time as she had "just buried [Frank]."⁵ Sister also testified she later received a letter from Lisa's attorney indicating Lisa had completed paying the amount she owed for Tract A2 and the mobile home and asking for a deed to the property and the release of a lien on the mobile home.⁶

On September 11, 2013, Mother and Sister filed an amended complaint against the Duttons seeking (1) temporary and permanent injunctions prohibiting the Duttons from occupying or using Tract A and Tract A2; (2) a judgment declaring Mother to be the sole owner of Tract A and Tract A2 and determining the ownership of the mobile homes, including a declaration that Sister is the sole owner of the mobile home on Tract A2; (3) an order quieting title to Tract A and Tract A2; (4) damages for trespass, fraud/misrepresentation, civil conspiracy, slander of title, conversion, and intentional infliction of emotional distress; and (4) attorney's fees and costs.⁷ The Duttons answered and counterclaimed seeking (1) specific performance of the contracts of sale for Tracts A and A2; (2) damages for abuse of process, slander of title, civil conspiracy, fraud/negligent misrepresentation, and violation of the Statute of Elizabeth; and (3) attorney's fees and costs.

After a bench trial, the circuit court issued an order concluding Frank was "acting as the authorized agent for [Mother and Sister] in his dealings with [the Duttons]." The circuit court addressed Mother's and Sister's declaratory judgment cause of action by finding the Duttons had valid and enforceable rights under the contracts of sale. The circuit court dismissed Mother's and Sister's other causes of action. Further, the circuit court granted the Duttons' request for...