Shirey v. Bishop
| Decision Date | 22 April 2020 |
| Docket Number | Opinion No. 5718,Appellate Case No. 2017-001678 |
| Citation | 848 S.E.2d 325,431 S.C. 412 |
| Court | South Carolina Court of Appeals |
| Parties | Robert G. SHIREY, Respondent, v. Gwen G. BISHOP, Cassandra Robinson, and TD Bank, N.A., Defendants, Of whom Gwen G. Bishop and Cassandra Robinson are the Appellants. |
Jason Scott Luck, of Garrett Law Offices, of North Charleston, for Appellants.
Kyle B. Parker, of Pope Parker Jenkins, P.A., of Newberry, for Respondent.
In this land-transaction dispute, Appellants Gwen G. Bishop and Cassandra Robinson (collectively "Appellants") challenge the order of the special referee, arguing that the referee erred in (1) finding Respondent Robert G. Shirey was entitled to specific performance; (2) setting aside the deed from Bishop to Robinson; (3) finding Shirey to be a bona fide purchaser; and (4) awarding Shirey attorney's fees. We affirm.
The property at issue in this case is located at 242 Power Station Road in Newberry County, tax map number 294-23 ("the Property"). For over thirty years, Bishop and her husband operated a grave digging and burial vault business from the Property. In 2010, Bishop's husband passed away, leaving Bishop to run the business by herself. Consequently, Bishop suffered from depression and anxiety and she ultimately determined that she did not want to continue operating the business.
On April 25, 2012, Bishop entered into a land sale contract with Robinson, her niece, to sell the Property ("the 2012 Robinson Contract"). Robinson agreed to purchase the Property by assuming Bishop's mortgage and making monthly payments in the amount of $2,080.77 until the mortgage was satisfied.1 The contract provided that, "If Buyer does not pay payments on the note monthly, Seller has the right to declare Buyer in default of this Contract." The contract was never recorded.
In many ways this case arises out of what happened next. Although Bishop had agreed in 2012 to sell the Property to Robinson, sometime in late 2014 or early 2015, Bishop approached Shirey about purchasing the Property2 and the two ultimately entered into a land sale contract on May 20, 2015 ("the Shirey Contract"). Shirey agreed to purchase the Property for $125,000 and tender earnest money in the amount of $1,000 to be paid upon the signing of the contract. The contract also included (1) a provision requiring that the closing occur "no earlier than August 3, 2015[,] and no later than August 12, 2015," further indicating that time was of the essence; (2) a warranty provision representing that Bishop "ha[d] good and marketable fee simple title to the Property ... and no person or entity claim[ed] any right of possession to all or any portion thereof ..."; and (3) a provision requiring (a) a specific writing for the waiver of any provision and (b) a writing signed by both parties for any modification.
Shirey tendered a check for $122,976.92 and deposited it with his attorney's office on August 12, 2015. However, Bishop did not show up to the closing or otherwise tender a deed to Shirey. After it became apparent that Bishop was not going to appear, Shirey's attorney called Bishop to ask if the closing period could be extended to August 13, 2015, and Bishop agreed to appear the next day for closing.
On August 13, 2015, Shirey arrived at his attorney's office but Bishop again failed to appear. Later that morning, Bishop's doctor sent a note to Shirey's attorney asking that Bishop be excused from the closing. However, that afternoon, Bishop entered into a second land sale contract with Robinson ("the 2015 Robinson Contract"). Pursuant to the contract, Robinson agreed to purchase the Property for $33,0003 and assume the mortgage. Notably, the 2015 Robinson Contract included a provision absent from the 2012 Robinson Contract providing that "The seller also[ ] agrees to indemnify the Buyer of any and all issues and of illegality or fraud concerning this transaction." Additionally, Bishop executed a deed conveying the Property to Robinson, and Robinson recorded the deed the same day.
Shirey filed a complaint against Bishop on August 20, 2015, requesting specific performance of the Shirey Contract and attorney's fees. Bishop filed her answer on September 16, 2015. On October 8, 2015, after learning of the deed from Bishop to Robinson, Shirey filed a motion to amend his complaint to add TD Bank and Robinson as parties to the action. The motion was granted, and Shirey filed his amended complaint on February 16, 2016. TD Bank filed its answer on April 7, 2016, and Bishop and Robinson both filed their answers on April 25, 2016. Neither Bishop nor Robinson raised any affirmative defenses in their answers.
On February 23, 2017, the action was referred to the special referee, and the case was heard on March 22, 2017. The parties offered records, depositions, and testimony demonstrating that Robinson did not make all of the mortgage payments required by the 2012 Robinson Contract,4 she made sixteen late payments, and she knew about the Shirey Contract prior to August 13, 2015, the date of the Shirey closing. Additionally, Bishop testified that she forwarded all of her mortgage statements to Robinson and did not understand what she was signing when she signed the 2015 Robinson Contract.
On May 18, 2017, the special referee entered an order in favor of Shirey, setting aside the deed to Robinson, ordering specific performance of the Shirey Contract, and awarding Shirey attorney's fees. The special referee further determined that (1) Shirey was a bona fide purchaser who took free of any interest Robinson might have in the Property; (2) Robinson and Bishop were in a confidential relationship; (3) the phone call from Shirey's attorney to Bishop was tantamount to an extension of the contract; and (4) Bishop's entering into the Shirey Contract demonstrated an intention to hold Robinson in default of the 2012 Robinson Contract. Appellants filed a motion for reconsideration, which was denied by the special referee on July 28, 2017. This appeal followed.
STANDARD OF REVIEW
An action for specific performance and an action to set aside a deed are both matters in equity. Bullard v. Crawley , 294 S.C. 276, 278, 363 S.E.2d 897, 898 (1987) ; Campbell v. Carr , 361 S.C. 258, 262, 603 S.E.2d 625, 627 (Ct. App. 2004). "In reviewing a proceeding in equity, this court may find facts based on its own view of the preponderance of the evidence." Greer v. Spartanburg Tech. Coll. , 338 S.C. 76, 79, 524 S.E.2d 856, 858 (Ct. App. 1999). However, "[t]his broad scope of review does not require this court to ignore the findings below when the [referee] was in a better position to evaluate the credibility of the witnesses." Id.
"The review of attorney fees awarded pursuant to a contract is governed by an abuse of discretion standard."
Raynor v. Byers , 422 S.C. 128, 131, 810 S.E.2d 430, 432 (Ct. App. 2017) (quoting Laser Supply & Servs., Inc. v. Orchard Park Assocs. , 382 S.C. 326, 340, 676 S.E.2d 139, 147 (Ct. App. 2009) ).
Generally, "[s]pecific performance should be granted only if there is no adequate remedy at law and specific enforcement of the contract is equitable between the parties." Campbell , 361 S.C. at 263, 603 S.E.2d at 627 (quoting Ingram v. Kasey's Assocs. , 340 S.C. 98, 105, 531 S.E.2d 287, 291 (2000) ). However, "[w]hen land is the subject matter of an agreement[,] the jurisdiction of equity to enforce specific performance is undisputed[ ] and does not depend on the inadequacy of the legal remedy in the particular case." Adams v. Willis , 225 S.C. 518, 526, 83 S.E.2d 171, 175 (1954) ; see also Belin v. Stikeleather , 232 S.C. 116, 123, 101 S.E.2d 185, 188 (1957) (). "Equity will not decree specific performance unless the contract is fair, just, and equitable." Campbell , 361 S.C. at 263, 603 S.E.2d at 627. Accordingly, "specific performance of a contract to sell real property will be ordered whe[n] the contract ‘is fair and was entered into openly and aboveboard.’ " Amick v. Hagler , 286 S.C. 481, 485, 334 S.E.2d 525, 527 (Ct. App. 1985) (quoting Adams , 225 S.C. at 528, 83 S.E.2d at 176 ).
In order to compel specific performance, a court of equity must find: (1) clear evidence of an agreement; (2) that the agreement has been partly carried into execution on one side with the approbation of the other; and (3) that the party who comes to compel performance has performed on his part, or has been and remains able and willing to perform his part of the contract.
Gibson v. Hrysikos , 293 S.C. 8, 13–14, 358 S.E.2d 173, 176 (Ct. App. 1987).
Appellants argue the special referee erred in granting Shirey specific performance because (1) there was no valid contract as Shirey breached the contract and the oral extension of the closing date was ineffective under the statute of frauds; (2) the equities of the transaction did not favor specific performance; and (3) Shirey has not demonstrated that he was capable of performing the contract at the time of filing.5 We will address each argument in turn.
Appellants argue Shirey is not entitled to specific performance because the Shirey Contract was no longer valid after Shirey breached by asking Bishop to close on the day after the initial closing date. Shirey argues he did not breach the Shirey Contract because the contract was orally...
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