Oak Pointe Homeowners' Ass'n, Inc. v. Peffley

• Decision Date: 28 March 2018
• Docket Number: Unpublished Opinion No. 2018-UP-131,Appellate Case No. 2015-000263
• Parties: Oak Pointe Homeowners' Association, Inc., Respondent, v. Mackenzie E. Peffley, Appellant.
• Court: South Carolina Court of Appeals

Oak Pointe Homeowners' Association, Inc., Respondent, v. Mackenzie E. Peffley, Appellant.

Appellate Case No. 2015-000263

Unpublished Opinion No. 2018-UP-131

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard October 4, 2017

March 28, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From Lexington County

G. Thomas Cooper, Jr., Circuit Court Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Andrew Sims Radeker, of Harrison & Radeker, P.A. of Columbia for Appellant.

Stephanie Carol Trotter and Joel Morris Deason, Sr., both of McCabe, Trotter & Beverly, P.C. of Columbia for Respondent.

PER CURIAM: Appellant Mackenzie Peffley's home is within a subdivision governed by Oak Pointe Homeowner's Association, Inc. (Oak Pointe). In April 2010, Peffley received a non-compliance assessment from Oak Pointe for burning trash in her backyard. In June 2010, she received another non-compliance assessment for placing a "For Rent" sign in her front yard, which she appealed. On February 25, 2011, Oak Pointe sent Peffley a letter indicating she owed $490.00, due within ten days, as a result of the two non-compliance assessments and one unpaid annual membership assessment. On March 13, 2011, Peffley wrote a check for $490.00 payable to Oak Pointe. The next day, Peffley emailed Oak Pointe's president asking the status of her appeal. The president indicated she had asked for Peffley's fine to be removed (and it later was removed by a successful appeal), to which Peffley responded, "I paid my debt to [Oak Pointe] in full today so I should have a credit for next years fees." In an email sent at 10:00pm the same day, the president responded, "You will be reimbursed." On March 16, 2011, Peffley's account was turned over to Oak Pointe's attorneys for collection. On March 21, 2011, Oak Pointe's attorneys executed a Notice of a Lien on Peffley's home for $870.83, based on the principal debt of $490.00, $375.00 in attorneys' fees, and unspecified interest. On March 23, 2011, the Notice of Lien was filed with Lexington County. The same day, Peffley's check for $490.00 was negotiated.

Two years later, Oak Pointe foreclosed on the Lien, claiming Peffley owed Oak Pointe $933.37. Peffley asserted numerous counterclaims, and Oak Pointe moved for summary judgment. After a hearing, the circuit court granted summary judgment to Oak Pointe on Peffley's counterclaims for: (1) breach of contract; (2) breach of contract accompanied by fraudulent act; (3) negligent misrepresentation; (4) slander of title; (5) libel; and (6) a violation of the South Carolina Unfair Trade Practices Act (UTPA). We reverse the circuit court's grant of summary judgment to Oak Pointe on Peffley's claims for negligent misrepresentation, breach of contract, slander of title, and libel. We affirm summary judgment to Oak Pointe on Peffley's claims for breach of contract accompanied by a fraudulent act and a violation of UTPA.

1. We find the circuit court erred in granting summary judgment to Oak Pointe on Peffley's claim for breach of contract. It is undisputed the "Declaration of Covenants, Conditions, Restrictions, Easements, Charges and Liens for Oak Pointe" (Covenant Document) is a contract and states "[a]ny Assessments not paid within thirty (30) days after the due date shall bear interest from the due date . . . ." At summary judgment, Peffley argued Oak Pointe breached this section of the CovenantDocument when Oak Pointe charged interest on assessments allegedly owed to Oak Pointe without giving Peffley advance notice or a due date by which to pay them. In support, Peffley submitted her own affidavit asserting she had not received notice of money owed over the $490.00 she paid. Further, because it is undisputed Oak Pointe foreclosed for $933.37, an amount greater than the amount listed as owed in the Notice of Lien, there is an inference Peffley's alleged unpaid debt accrued interest. Viewing this evidence and all inferences in the light most favorable to Peffley, we find there are material facts in dispute regarding whether Oak Pointe breached the Covenant Document. See Rule 56, SCRCP; Knight v. Austin, 396 S.C. 518, 522, 722 S.E.2d 802, 804 (2012) (stating at summary judgment, "[t]he evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party" (quoting Fleming v. Rose, 350 S.C. 488, 493-94, 567 S.E.2d 857, 860 (2002)); Hancock v. Mid-S. Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) (holding in cases applying the preponderance of evidence standard at trial, a claimant need only present a mere scintilla of evidence to support each element of a claim to withstand a motion for summary judgment); Hotel & Motel Holdings, LLC v. BJC Enters., LLC, 414 S.C. 635, 652, 780 S.E.2d 263, 272 (Ct. App. 2015) (delineating elements of breach of contract claim).

2. We find summary judgment was proper on Peffley's claim for breach of contract accompanied by a fraudulent act. Peffley asserts Oak Pointe committed fraud when its agent, the president of Oak Pointe, represented to Peffley that she would be reimbursed for overpayment, but, in actuality, Peffley's debt was turned over to Oak Pointe's lawyers for collection. While this evidence may, viewed in the light most favorable to Peffley, lead to the inference of a negligent misrepresentation on the part of Oak Pointe's president, we find Peffley has not satisfied her burden of producing more than a scintilla of evidence that Oak Pointe's president acted with the intent to deceive. See Hancock, 381 S.C. at 330-31, 673 S.E.2d at 803 (2009) (stating in cases requiring a heightened burden of proof, the non-moving party must submit more than a mere scintilla of evidence to withstand a motion for summary judgment); Foxfire Vill., Inc. v. Black & Veatch, Inc., 304 S.C. 366, 374, 404 S.E.2d 912, 917 (Ct. App. 1991) ("Fraud cannot be presumed; it must be proved by clear, cogent, and convincing evidence."); see also Brown v. Stewart, 348 S.C. 33, 42, 557 S.E.2d 676, 681 (Ct. App. 2001) (stating "a key difference between fraud and negligent misrepresentation is that fraud requires the conveyance of a known falsity, while negligent misrepresentation is predicated upon transmission of a negligently made false statement"); Save Charleston Found. v. Murray, 286 S.C. 170, 181, 333 S.E.2d 60, 67 (Ct. App. 1985) (stating proof of fraudulent act in a claim for breachof contract accompanied by a fraudulent act must include proof of the intent to deceive).

3. We find the circuit court erred in granting summary judgment to Oak Pointe on Peffley's negligent misrepresentation claim. At summary judgment, Peffley introduced the following evidence: (1) her own affidavit stating she relied on Oak Pointe president's statement, "You will be reimbursed," to mean she had fully satisfied her debt to Oak Pointe; (2) the email exchange between Oak Pointe's president and Peffley leading up to and including the president's statement; (3) Peffley's bank records with a copy of the March 13, 2011 check for $490.00; and (4) Oak Pointe's attorneys' "Account Activity Report" giving inference the Notice of Lien was based on $490.00, $375.00 in attorneys' fees, and interest. Viewing all inferences in the light most favorable to Peffley, we find there are material facts in dispute regarding each element of a negligent misrepresentation claim. See Quail Hill, LLC v. Cty. of Richland, 387 S.C. 223, 240, 692 S.E.2d 499, 508 (2010) (delineating the elements of a negligent misrepresentation claim); Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 300, 468 S.E.2d 292, 298 (1996) (stating "[g]enerally, the principal is held liable to third persons in civil suits for . . . 'misrepresentations [and] negligences . . . of his agent in the course of his employment'" (quoting Huestess v. S. Atl. Life Ins. Co., 88 S.C. 31, 41, 70 S.E....