NationsBank v. Scott Farm, 2401

Citation320 S.C. 299,465 S.E.2d 98
Decision Date04 October 1996
Docket NumberNo. 2401,2401
CourtSouth Carolina Court of Appeals
PartiesNationsBANK, as Successor to Citizens & Southern National Bank of South Carolina, As Trustee Under the Will of Edwin Boyle, Jr., Respondent, v. SCOTT FARM, a Limited Partnership, Fred G. Scott, Jr., General Partner, and Fred G. Scott, Jr., Appellants.

Fred G. Scott, Jr., Mt. Pleasant, for appellants.

Robert A. Kerr, Jr., Buist, Moore, Smythe & McGee, North Charleston, for respondent.

PER CURIAM:

Respondent, NationsBank, acting in its capacity as Trustee under the Will of Edwin Boyle, Jr., brought this action to collect on a promissory note executed by appellants, Scott Farm, a limited partnership, and Fred G. Scott, Jr., its general partner (collectively referred to as "Scott Farm"). The trial court granted NationsBank's motion for summary judgment, and Scott Farm appeals. We affirm.

Dr. Edwin Boyle, Jr., owned a 31.5% partnership interest in Creekside Land Company, a limited partnership organized for the purpose of acquiring real property and developing a residential subdivision. Fred G. Scott, Jr., was Creekside's general partner. In 1978, Dr. Boyle divested himself of a portion of his partnership interest by assigning it to Scott Farm, a limited partnership formed to become substituted limited partner in Creekside. The consideration was a purchase money note given by Scott Farm and secured by a mortgage of all developed lots in Creekside 1. In 1979, Dr. Boyle assigned his remaining interest in Creekside to Scott Farm in exchange for a note for the principal sum of $60,000, together with interest thereon at the fixed rate of ten percent per annum. Scott Farm secured the note with, according to Scott Farm, a "pledge of Scott Farm's Creekside Land Company partnership interest."

This latter note was renewed several times including a renewal in December 1990, between Citizens and Southern National Bank of South Carolina, as trustee under the Will of Edwin Boyle, Jr., and Fred G. Scott, Jr., on behalf of Scott Farm. 2 Under the terms of the note, all unpaid principal and all accrued but unpaid interest were due and payable in a single installment on June 30, 1992. The note also stated Scott Farm "expressly agrees ... to remain and continue bound for the payment ... notwithstanding any extension ... or any change or changes by way of release or surrender of any collateral held as security for this Note." The note further provided if it was placed with an attorney for collection, then all costs of collection, including an additional sum of ten percent on the full amount due, was to be added as attorney's fees. Nowhere in the note was it stated that it was a renewal of any obligation.

Scott Farm admits default on the note, but denies NationsBank has the right to a monetary judgment. Rather, Scott Farm claims the note is part of a larger buyout scheme wherein in 1978 Dr. Boyle agreed to sell his partnership interest to Scott Farm over a two year period, "with Dr. Boyle assigning a portion of his limited partnership interest in 1978 and granting an option to Scott Farm to purchase the remaining portion in 1979." Scott Farm further claims the instant note "represents renewal of the [obligation affecting the] second part of the buyout of Dr. Boyle's interest in Creekside Land Company. An implied condition of this note was that recovery on default would be limited to the real property in Creekside." Specifically, Scott Farm claims the note involved in this suit is simply a renewal of the 1979 note given by Scott in payment of the purchase price of the second portion of Dr. Boyle's partnership interest buyout, and that an implied condition of the 1979 note was that Dr. Boyle would not seek a deficiency judgment if any portion of the debt represented by the 1979 note and any renewals thereof remained unpaid after foreclosure of the 1978 mortgage. 3

Based on the motion of NationsBank, the affidavits and pleadings in the file, and the failure of Scott Farm's attorney to appear at the hearing on the motion, the trial court granted summary judgment for NationsBank. 4

Summary judgment is proper when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP. Summary judgment should be granted when plain, palpable, and undisputable facts exist on which reasonable minds cannot differ. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993). In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 443 S.E.2d 392 (1994). In order to resist a motion for summary judgment, the nonmoving party must come forward with specific facts showing genuine issues necessitating trial. Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once a party moving for summary judgment carries the initial burden of showing an absence of evidentiary support for the nonmoving party's case, the nonmoving party may not simply rest on mere allegations or denials contained in the pleadings. Id.

We disagree with Scott Farm's contention that the note herein sued upon was subject to the terms of the 1978 mortgage wherein recovery was limited to the proceeds from the sale of the property. The burden of proof of waiver is on the party asserting it. Frady v. Smith, 247 S.C. 353, 147 S.E.2d 412 (1966). Where an implied waiver is claimed, caution must be exercised. Zeller v. Cumberland Truck Sales, 272 S.C. 558, 253 S.E.2d 111 (1979). The parties to the 1978 mortgage are Creekside Land Company and Heins, Boyle, Paul, and Spicer. The parties to the 1990 note herein sued on are Boyle's successor in interest, NationsBank, and Scott Farm....

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