Mulherin-Howell v. Cobb, No. 3919.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Citation362 S.C. 588,608 S.E.2d 587
PartiesMULHERIN-HOWELL, a South Carolina Partnership, Plaintiff, v. Elvis COBB, Jean Cobb, William Rickborn, Patricia Rickborn, the Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III, Charles A. Gray, and Francis M. Gray, Defendants, and The Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III, Third-Party Plaintiff, v. Allen P. Howell, Howell & Associates, Inc., and the Estate of Charles M. Mulherin, by Katherine S. Mulherin, Personal Representative, Third-Party Defendants. Of Whom Mulherin-Howell, a South Carolina Partnership, Elvis Cobb, Jean Cobb, William Rickborn, Patricia Rickborn, Charles A. Gray and Francis M. Gray are the, Respondents, and The Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III is the Appellant.
Docket NumberNo. 3919.
Decision Date10 January 2005

362 S.C. 588
608 S.E.2d 587

MULHERIN-HOWELL, a South Carolina Partnership, Plaintiff,
v.
Elvis COBB, Jean Cobb, William Rickborn, Patricia Rickborn, the Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III, Charles A. Gray, and Francis M. Gray, Defendants, and
The Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III, Third-Party Plaintiff,
v.
Allen P. Howell, Howell & Associates, Inc., and the Estate of Charles M. Mulherin, by Katherine S. Mulherin, Personal Representative, Third-Party Defendants.
Of Whom Mulherin-Howell, a South Carolina Partnership, Elvis Cobb, Jean Cobb, William Rickborn, Patricia Rickborn, Charles A. Gray and Francis M. Gray are the, Respondents, and
The Council of Timesharing Interest Owners of Apartments of Sea Cabin on the Ocean III is the Appellant

No. 3919.

Court of Appeals of South Carolina.

Heard December 8, 2004.

Decided January 10, 2005.

Rehearing Denied February 16, 2005.


362 S.C. 591
Robert R. Black and W. Andrew Gowder, of Charleston, for Appellant

William C. Cleveland, of Charleston, for Respondent Mulherin-Howell.

362 S.C. 592
ANDERSON, J

This appeal arises from Mulherin-Howell's (Mulherin) suit to quiet title to property previously owned by Mulherin. After competing motions for summary judgment were filed, the trial court found Mulherin had standing to bring the suit and Mulherin's action was not barred by any applicable statute of limitations. Additionally, the court granted summary judgment in favor of Mulherin, Elvis and Jean Cobb, William and Patricia Rickborn, Charles and Francis Gray, and Mulherin's individual partners (collectively, Mulherin) on the counterclaims and third-party complaint filed by the Council of Timesharing Interest Owners of Apartments of Sea Cabin on The Ocean III (the Council). The Council appeals. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In the mid-1980's, Mulherin developed timeshare units on the Isle of Palms in the horizontal property regime known as Sea Cabin on the Ocean III. Homeowners purchased a specific week in a specific unit. In 1987, Mulherin sold week 22 of unit 123 to the Cobbs. A deed was recorded in Charleston County. The Cobbs subsequently exchanged their first week for week 23 of unit 104. No deed was given by the Cobbs back to Mulherin for the first week. A deed was prepared establishing the Cobbs as owners of week 23 of unit 104, but it was never recorded.

The Rickborns purchased week 22 of unit 123 from Mulherin in 1989. The deed from Mulherin to the Rickborns was duly recorded. The Rickborns have continuously occupied and paid dues to the Council on their week. The Cobbs have continuously occupied and paid dues on week 23 of Unit 104. The Cobbs have never exercised ownership over week 22 of unit 123. The Council has continuously received dues from each party without questioning their right to the property.

In 1994, the Council sued Mulherin, asserting it was not properly paying dues on the timeshares it continued to own. The parties settled the suit in 1997. As part of the settlement, Mulherin agreed to deed its unsold units to the Council. Mulherin gave the Council a quitclaim deed to interests it held in any other units. Each party signed a release, which stated:

362 S.C. 593
"IT IS UNDERSTOOD AND AGREED that this is a full and final Release of all claims of every nature and kind whatsoever, and releases claims that are known and unknown, suspected and unsuspected." In addition to the settlement, the Council, through its attorney, agreed to "accommodate dues paying contract purchasers" in regard to settling their title once the quitclaim deed was issued. A letter written by the Council's attorney to Mulherin's attorney dated November 26, 1997, read
As to your inquiry concerning the quitclaim deed, it was my understanding of the settlement that this would cover unidentified weeks which might have title problems or any retained or reversionary interests which [Mulherin] might have. Basically my client would prefer no lingering presence of [Mulherin] in the timeshare apartments.... [I]t would be my expectation that the quitclaim deed may in fact transfer nothing, but rather insure that [Mulherin has] no further interest. (Emphasis added)

Thereafter, according to William Rickborn, the Council advised him "that the Homeowners Association considered itself to be the owner of Unit 104, Week 23 [by operation of the quitclaim deed from Mulherin] and that it would not cooperate in having title to the units heretofore occupied by [Rickborn] and Mr. Cobb clarified."

In 1998, Mulherin, as owner in trust of week 23 of unit 104 for the Cobbs, brought suit against the Council to quiet title to the various units and weeks in which deeds were not properly filed and recorded. Mulherin alleged fraud based on the representations of the Council's attorney and contended the Council improperly interfered with its contract with the Cobbs for them to exchange weeks and then to deed back to Mulherin the unit, which was subsequently sold to the Rickborns. The Cobbs and Rickborns were made defendants because of their interest in the outcome of the lawsuit.1 Mulherin did not seek any relief from them.

The Council filed an answer denying Mulherin's claims. The Council pled affirmative defenses averring Mulherin: (1) lacked standing to bring the suit; (2) released the Council

362 S.C. 594
"from the claims asserted in the Amended Complaint"; and (3) could not bring the suit because it was barred by the statute of limitations. The Council set forth counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, fraud, and slander of title. Finally, the Council filed a third-party action against Mulherin's individual partners for conspiracy. Because Charles M. Mulherin had died, his estate was named as a party.

Each party filed motions to dismiss and for summary judgment. The trial court considered all motions as motions for summary judgment. The court found Mulherin had standing to bring the suit. The court concluded there was no breach of the settlement agreement by Mulherin as it properly presented a quitclaim deed to the Council and the nature of a quitclaim deed is that there is no warranty made as to the quality of the title being transferred.

As to the Council's other claims, the court ruled: (1) the counterclaim failed to properly allege all nine elements of fraud; and (2) there is no evidence the Council did not or could not know of the existence of title problems with respect to the Cobbs and Rickborns. On the claim for slander of title, the court determined it was premature to bring the action as a counterclaim in the same action which serves as the basis of the claim because it can only be based upon a lawsuit in which a party prevails. The court found no special damages or malice were pled by the Council. As to the Council's third-party complaint alleging the individual partners of Mulherin engaged in a conspiracy with respect to how the timeshare units were originally sold, the court held the events involved took place prior to the 1997 release signed by the parties and, therefore, were barred. The court granted summary judgment in favor of Mulherin as to the Council's counterclaims and third-party complaint.

The court denied the Council's motion for summary judgment as to Mulherin's claims. The court declared Mulherin had standing to bring the action, the claims were not barred by the release as the purported actions took place after the signing of the release, and the claims were not barred by "any applicable statute of limitations."

362 S.C. 595
The Council filed a motion pursuant to Rules 52(b) and 59(e), SCRCP, averring: (1) the court erred in determining Mulherin had standing; (2) there was an issue of material fact related to the Release and what claims it barred; (3) the complaint alleged special damages as to the conspiracy claim; and (4) the claim for slander of title should not have been dismissed. The court denied the motion.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), 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. White v. J.M. Brown Amusement Co., 360 S.C. 366, 601 S.E.2d 342 (2004); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004); Redwend Ltd. P'ship v. Edwards, 354 S.C. 459, 581 S.E.2d 496 (Ct.App.2003). In determining whether any triable issue of fact exists, the evidence and all inferences which 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); McNair v. Rainsford, 330 S.C. 332, 499 S.E.2d 488 (Ct.App.1998). If triable issues exist, those issues must go to the jury. Baril v. Aiken Reg'l Med. Ctrs., 352 S.C. 271, 573 S.E.2d 830 (Ct.App.2002); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999).

Summary judgment is appropriate where 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. Belton v. Cincinnati Ins. Co., 360 S.C. 575, 602 S.E.2d 389 (2004); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004); Rule 56(c), SCRCP; see also Higgins v. Medical Univ. of South Carolina, 326 S.C. 592, 486 S.E.2d 269 (Ct.App.1997) (noting that when ruling on motion for summary judgment, trial judge must consider all of documents and evidence within record, including pleadings, depositions, answers to interrogatories, admissions on file, and

362 S.C. 596
affidavits). "On appeal...

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  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...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 Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...611, 620, 622 S.E.2d 733, 737 (Ct.App.2005). If triable issues exist, those issues must go the jury. Mulherin-Howell 370 S.C. 588 v. Cobb, 362 S.C. 588, 595, 608 S.E.2d 587, 591 (Ct.App.2005). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and adm......
  • Hooper v. Ebenezer Senior Services, No. 4350.
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2008
    ...440, 452, 548 S.E.2d 868, 874 (2001)); Moore v. Weinberg, 373 S.C. 209, 217, 644 S.E.2d 740, 744 (Ct.App.2007); Mulherin-Howell v. Cobb, 362 S.C. 588, 596-97, 608 S.E.2d 587, 592 (Ct.App.2005). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a li......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...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. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, togethe......
  • Request a trial to view additional results
65 cases
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...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 Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...611, 620, 622 S.E.2d 733, 737 (Ct.App.2005). If triable issues exist, those issues must go the jury. Mulherin-Howell 370 S.C. 588 v. Cobb, 362 S.C. 588, 595, 608 S.E.2d 587, 591 (Ct.App.2005). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and adm......
  • Hooper v. Ebenezer Senior Services, No. 4350.
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2008
    ...440, 452, 548 S.E.2d 868, 874 (2001)); Moore v. Weinberg, 373 S.C. 209, 217, 644 S.E.2d 740, 744 (Ct.App.2007); Mulherin-Howell v. Cobb, 362 S.C. 588, 596-97, 608 S.E.2d 587, 592 (Ct.App.2005). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a li......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...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. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, togethe......
  • Request a trial to view additional results

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