Resolution Trust Corp. v. Eagle Lake and Golf Condominiums

• Decision Date: 04 January 1993
• Docket Number: No. 23802,23802
• Citation: 427 S.E.2d 646,310 S.C. 473
• Court: South Carolina Supreme Court
• Parties: RESOLUTION TRUST CORPORATION, as Receiver for Heritage Federal Savings and Loan Association, Appellant, v. EAGLE LAKE AND GOLF CONDOMINIUMS, A South Carolina Limited Partnership, Allen W. May, Peggy W. May, Coker Builders, Inc., and Eagle Lake and Golf Condominiums Homeowners Association, Inc., Respondents, v. COKER BUILDERS, INC., Third-Party Plaintiff/Respondent, v. Michael B. CALLAHAN, Kathleen B. Callahan, Glenn F. Sowards, Oretha B. Sowards, Joseph A. Larkin, Marilyn Larkin, Robert Stayrock, Sandra Yatty a/k/a Sandra L. Stayrock, Thomas L. Fiato, Mark T. Fiato, Kevin F. Skellett, Russell Smith, Lucille Smith, John B. Somers, Mary Jo Somers, John B. Dahlberg, Stephanie P. Dahlberg, Peter J. Pallassino, Rosemary Pallassino, Maurice Harruff, Marilyn Harruff, David Wayne Brown, Joi Michelle Brown, Patricia Williams, Jan L. Hilgert and Pilar Hilgert, Third-Party Defendants. . Heard

Page 646

427 S.E.2d 646

310 S.C. 473

RESOLUTION TRUST CORPORATION, as Receiver for Heritage

Federal Savings and Loan Association, Appellant, v. EAGLE LAKE AND GOLF CONDOMINIUMS, A South Carolina Limited

Partnership, Allen W. May, Peggy W. May, Coker Builders,

Inc., and Eagle Lake and Golf Condominiums Homeowners

Association, Inc., Respondents, v. COKER BUILDERS, INC., Third-Party Plaintiff/Respondent, v. Michael B. CALLAHAN, Kathleen B. Callahan, Glenn F. Sowards,

Oretha B. Sowards, Joseph A. Larkin, Marilyn Larkin, Robert

Stayrock, Sandra Yatty a/k/a Sandra L. Stayrock, Thomas L.

Fiato, Mark T. Fiato, Kevin F. Skellett, Russell Smith,

Lucille Smith, John B. Somers, Mary Jo Somers, John B.

Dahlberg, Stephanie P. Dahlberg, Peter J. Pallassino,

Rosemary Pallassino, Maurice Harruff, Marilyn Harruff, David

Wayne Brown, Joi Michelle Brown, Patricia Williams, Jan L.

Hilgert and Pilar Hilgert, Third-Party Defendants.

No. 23802.

Supreme Court of South Carolina.

Heard Jan. 4, 1993.

Decided Feb. 16, 1993.

Rehearing Denied March 23, 1993.

Robert E. Stepp, and Elizabeth Howard Simmons, both of Glenn, Irvin, Murphy, Gray & Stepp, Columbia, for appellant.

Dalton B. Floyd, Jr., Surfside Beach, for third-party plaintiff/respondent Coker.

Cary F. McLeod, North Myrtle Beach, and John E. Fulbright, of Connelly Springs, NC, for respondents.

John Randolph Martin, of the Law Offices of John R. Clarke, North Myrtle Beach, for third-party defendants Michael B. Callahan and Kathleen B. Callahan.

Peggy W. May and Allen W. May, pro se respondents.

Thomas H. Somers, of Moon, Moss & McGill, Portland, ME, for third-party defendants John B. Somers and Mary Jo Somers.

PER CURIAM:

Appellant appeals an order granting respondent Coker's summary judgment motion and holding appellant's mortgage ineffective under S.C.Code Ann. § 27-31-230(a) (1991). The sole issue before the Court is whether a mortgage, given by a condominium developer on the entire project after the master deed has been filed, is void under this statute. We hold that it is, and affirm.

Appellant brought this action to foreclose its mortgage. Coker raised the statutory issue in its counterclaim. Appellant filed a general denial to this counterclaim, but raised no affirmative defenses. Coker then moved for summary judgment; appellant did not respond. At the hearing on Coker's motion, appellant for the first time orally raised a number of affirmative defenses. ¹ In his order, the trial judge addressed the statutory issue, and also briefly addressed the merits of appellant's affirmative defenses, but only after first noting the issues were not properly before him.

Appellant has not appealed the judge's ruling that the affirmative defenses were not properly before him, but has appealed and argued the merits of those defenses. The trial judge's procedural ruling is the law of the case since it has not been appealed. Robert Harmon and Bore, Inc. v. Jenkins, 282 S.C. 189, 318 S.E.2d 371 (Ct.App.1984). Even if these affirmative defenses were not procedurally barred, we disapprove of the practice of orally raising unpled issues for the first time at a summary judgment motion. ² We therefore address only the issue of the statute's effect on appellant's mortgage.

In January 1985, the developer of this condominium project recorded a master deed. In August 1986, appellant's predecessor in interest (hereinafter appellant) recorded the mortgage at issue here. When appellant brought this action to foreclose its mortgage, Coker, holder of a pre-master deed mortgage and an unsatisfied judgment against the developer, objected to the validity of appellant's mortgage under § 27-31-230(a). The judge agreed this statute rendered appellant's mortgage unenforceable and this appeal followed.

The first sentence of § 27-31-230(a) provides "No lien arising subsequent to recording the master deed ... shall be effective against the property." Here, appellant's mortgage was recorded approximately nineteen months after the master deed. A mortgage is a lien on real property. S.C.Code Ann. § 29-1-10 (1991); see, e.g., Weatherly v. Medlin, 141 S.C. 290, 139 S.E. 633 (1927). Words used in a statute should be given their plain and ordinary meaning. First Baptist Church v. City of Mauldin, --- S.C. ----, 417 S.E.2d 592 (1992); Citizens for Lee County v. Lee County, --- S.C. ----, 416 S.E.2d 641 (1992). Appellant's mortgage is ineffective under the statute's plain language.

Appellant argues, however, that in the context of the entire statute, the word lien in the first sentence should be limited to mechanic's liens or other materialmen's liens and not read to include mortgages. See, e.g., S.C. Coastal Council v. S.C. State Ethics Comm'n, 306 S.C. 41, 410 S.E.2d 245 (1991) (court should look at whole statute, not just isolated clause). A reading of the whole statute, however, supports the trial judge's interpretation. The second sentence explicitly permits individual condominium units (as opposed to the whole property) to be encumbered as any other separately owned property. The only exceptions in the remainder of the statute permit an individually owned unit to be subjected to a mechanic or...