Moore v. Weinberg

• Decision Date: 20 February 2007
• Docket Number: No. 4209.,4209.
• Citation: 644 S.E.2d 740
• Court: South Carolina Court of Appeals
• Parties: Joseph H. MOORE, Appellant, v. M.M. WEINBERG, Jr. and Weinberg and Brown, L.L.P., Respondents.

644 S.E.2d 740

Joseph H. MOORE, Appellant, v.M.M. WEINBERG, Jr. and Weinberg and Brown, L.L.P., Respondents.

No. 4209.

Court of Appeals of South Carolina.

Submitted February 1, 2007.

Decided February 20, 2007.

Rehearing Denied May 17, 2007.

A. Camden Lewis, Peter D. Protopapas and Brady R. Thomas, all of Columbia, for Appellant.

Harry C. Wilson, Jr. and David C. Holler, both of Sumter, for Respondents.

ANDERSON, J.:

Joseph Moore(Moore) appeals the grant of summary judgment with regard to his claims of negligence, conversion, and civil conspiracy against M.M. Weinberg, Jr. and Weinberg and Brown, L.L.P.(collectively Weinberg).The trial court granted Weinberg's summary judgment motion based on the doctrine of novation.We affirm in part, reverse in part, and remand.¹

FACTUAL/PROCEDURAL BACKGROUND

In the late 1980s, Clarence Wheeler and Joseph Moore entered into a business relationship where Wheeler placed video-poker machines in Moore's service stations.Moore loaned Wheeler small amounts of money on a yearly basis for business expenses, such as buying video-poker machines and licenses.Frequently, Moore and Wheeler either renegotiated these loans, or Wheeler paid the outstanding balance and he and Moore arranged a new loan.

In November 1999, Wheeler executed a note to Moore in the amount of $92,000.The note provided for a built-in premium of $12,000.From the $92,000, Moore gave Wheeler $80,000 and kept the $12,000 premium.In order to secure his obligation, Wheeler assigned Moore $80,000, to be deducted from the anticipated proceeds from litigation over the sale of Wheeler's music business.An escrow account containing $100,000 was held by the Clarendon County Clerk of Court pending the outcome of Wheeler's litigation.On November 18, 1999, Wheeler's attorney, M.M. Weinberg, Jr., the same attorney representing him in the litigation, prepared the Assignment, that provided, in part:

Clarence Wheeler does by this instrument assign to Joseph Moore so much of any recovery that he may make from the debt owed to him by A & E, Inc. and the escrow account, which is pending as a result of said litigation, unto said Joseph Moore, his heirs and assigns to completely satisfy said debt.

This assignment shall be and is to the extent of the money owed at the time of the execution of the assignment.

Wheeler settled the litigation and was to receive the $100,000 from the escrow account.The opposing party was to receive the $10,829.16 in interest the account had accrued.When Clarendon County Clerk of Court transferred the funds from the escrow account to Weinberg, he disbursed $74,458.24 to Wheeler, paid $520 to Wheeler's former secretary, and retained $25,000 as his attorney's fee.²In executing these disbursements Weinberg forgot or "overlooked [the] Assignment."

After receiving the settlement money from Weinberg, Wheeler tendered $50,000 to Moore's son in payment of the debt.Moore was out of town at the time.Subsequently, Moore notified Wheeler that he had not fully satisfied his loan obligation.In June, 2002, Moore and Wheeler added a handwritten note at the end of the 1999 original: "I Clarence Wheeler agree that I owe Joseph H. Moore $80,000.00 since March 17, 2000 and agree to pay him 6% [i]nterest on the $80,000.00 balance.Clarence Wheeler payed [sic] $50,000 on July 19, 2002."Both Moore and Wheeler signed the addition to the note.

In October 2002, attorney John Land contacted Weinberg by telephone on Moore's behalf concerning the release of the assigned funds.³Weinberg agreed to consult with Wheeler and respond to Moore's demand for payment of Wheeler's outstanding obligation.After receiving no response, Land informed Weinberg by letter, dated October 14, 2002, that Moore had an absolute security in the released funds through the Assignment and would not relieve Wheeler of his remaining indebtedness.

On April 15, 2003, Moore initiated this action against Weinberg, alleging negligence, conversion, and civil conspiracy.Weinberg answered and asserted, inter alia, a defense based on the doctrine of novation.Both Moore and Weinberg filed motions for summary judgment.The trial court granted Weinberg's motion for summary judgment, finding the handwritten addendum to the 1999 original note constituted a novation, thus relieving Weinberg of any duty he may have owed Moore.

STANDARD OF REVIEW

"In reviewing the grant of summary judgment, [an appellate court] applies the same standard that governs the trial court under Rule 56, SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."Pittman v. Grand Strand Entm't, Inc.,363 S.C. 531, 536, 611 S.E.2d 922, 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 drawn therefrom must be viewed in the light most favorable to the nonmoving party.Medical Univ. of South Carolina v. Arnaud,360 S.C. 615, 602 S.E.2d 747(2004);Rife v. Hitachi Constr. Mach. Co., Ltd.,363 S.C. 209, 609 S.E.2d 565(Ct. App.2005).If triable issues exist, those issues must go to the jury.Mulherin-Howell v. Cobb,362 S.C. 588, 608 S.E.2d 587(Ct. App.2005).

Summary judgment is appropriate if 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 judgment as a matter of law.Rule 56(c), SCRCP;Helms Realty, Inc. v. Gibson-Wall Co.,363 S.C. 334, 611 S.E.2d 485(2005);BPS, Inc. v. Worthy,362 S.C. 319, 608 S.E.2d 155(Ct. App.2005).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 non-moving party.Willis v. Wu,362 S.C. 146, 607 S.E.2d 63(2004);see alsoSchmidt v. Courtney,357 S.C. 310, 592 S.E.2d 326(Ct.App.2003)(stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law.Gadson v. Hembree,364 S.C. 316, 613 S.E.2d 533(2005);Montgomery v. CSX Transp., Inc.,362 S.C. 529, 608 S.E.2d 440(Ct.App.2004).Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied.Baugus v. Wessinger,303 S.C. 412, 401 S.E.2d 169(1991);Nelson v. Charleston County Parks & Recreation Comm'n,362 S.C. 1, 605 S.E.2d 744(Ct.App.2004).When reasonable minds cannot differ on plain, palpable, and indisputable facts, summary judgment should be granted.Ellis v. Davidson,358 S.C. 509, 595 S.E.2d 817(Ct.App.2004).The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact.McCall v. State Farm Mut. Auto. Ins. Co.,359 S.C. 372, 597 S.E.2d 181(Ct.App.2004).Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings.Regions Bank v. Schmauch,354 S.C. 648, 582 S.E.2d 432(Ct.App.2003).The nonmoving party must come forward with specific facts showing there is a genuine issue for trial.Rife,363 S.C. at 214, 609 S.E.2d at 568.

"The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder."Dawkins v. Fields,354 S.C. 58, 69, 580 S.E.2d 433, 438(2003)(quotingGeorge v. Fabri,345 S.C. 440, 452, 548 S.E.2d 868, 874(2001));Rumpf v. Massachusetts Mut. Life Ins. Co.,357 S.C. 386, 593 S.E.2d 183(Ct.App.2004).Summary judgment is a drastic remedy and should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues.Helena Chem. Co. v. Allianz Underwriters Ins. Co.,357 S.C. 631, 594 S.E.2d 455(2004);Hawkins v. City of Greenville,358 S.C. 280, 594 S.E.2d 557(Ct.App.2004).

LAW/ANALYSIS

I. Novation

Moore argues the trial court erred in granting summary judgment based on novation as a defense to negligence, conversion, and civil conspiracy claims.We agree.

Novation is a defense to contract claims."A novation is an agreement between all parties concerned for the substitution of a new obligation between the parties with the intent to extinguish the old obligation."Wayne Dalton Corp. v. Acme Doors, Inc.,302 S.C. 93, 96, 394 S.E.2d 5, 7(Ct.App.1990)(citingOphuls & Hill, Inc. v. Carolina Ice & Fuel Co.,160 S.C. 441, 158 S.E. 824(1931)).There must be an intention to create a novation.Adams v. B D, Inc.,297 S.C. 416, 377 S.E.2d 315(1989).There can be no novation unless both parties so intend.Id.The party asserting a novation has the burden of proving it.Superior Auto. Ins. Co. v. Maners,261 S.C. 257, 199 S.E.2d 719(1973)."The circumstances attending the transaction alleged to be a novation must show the intention to substitute a new obligation in place of the existing one."Wellman, Inc. v. Square D Co.,366 S.C. 61, 72, 620 S.E.2d 86, 92(Ct.App.2005).An addendum that modifies a pre-existing agreement, but does not extinguish it, is not a novation.Parker v. Shecut,340 S.C. 460, 531 S.E.2d 546(Ct.App.2000), rev'd on other grounds349 S.C. 226, 562 S.E.2d 620(2002).

In order to effectuate a novation by the substitution of a new obligation, both contracting parties must consent that the new agreement is to replace the old one and their consent must be apparent.SeeSuperior,261 S.C....