South Carolina Nat. Bank v. Joyner, 0757

Decision Date29 May 1986
Docket NumberNo. 0757,0757
PartiesSOUTH CAROLINA NATIONAL BANK, Respondent, v. B. Dale JOYNER and Charlotte E. Joyner, Appellants. . Heard
CourtSouth Carolina Court of Appeals

Howard Hammer of Hammer & Bernstein and Scott Elliott, Columbia, for appellants.

Leon C. Banks of Cooper Beard & Dibble, Camden, for respondent.

GARDNER, Justice:

South Carolina National Bank (SCN) sued B. Dale Joyner (Mr. Joyner) and Charlotte Joyner (Mrs. Joyner) on a debt owed by Mr. Joyner allegedly guaranteed by a continuing Guaranty Agreement of Mrs. Joyner. The debt to SCN was at one time secured by a second mortgage which was foreclosed by the first mortgagee; the foreclosure sales price was insufficient to pay SCN's debt; this action was brought by SCN against Mr. Joyner for the deficiency and Mrs. Joyner on the alleged Guaranty Agreement. The appealed order granted summary judgment in favor of SCN. We affirm in part, reverse in part and remand.

The issues are whether (1) SCN waived deficiency judgment in the foreclosure action and thereby is barred from bringing this action and (2) the trial judge erred in holding there was no issue of fact as to the cause of action against Mrs. Joyner based upon the Guaranty Agreement.

Both Mr. and Mrs. Joyner argue that SCN cannot pursue this action because the debt asserted by SCN was the subject of a foreclosure action in which SCN waived deficiency judgment.

The pro se answers of Mr. and Mrs. Joyner are in the form of a letter or affidavit, first by Mrs. Joyner and then by Mr. Joyner. The answers are jumbled. Mrs. Joyner after stating that the bank had waived deficiency judgment in the foreclosure proceeding, asserted in her answer this:

The attorney representing me talked with someone in Columbia, South Carolina, representing SCN about reducing the loan and he lead us to believe that the bank was prepared to bid the property in and purchase it at public auction. Thereafter we stopped efforts trying to purchase the property.

Mr. Joyner alleged:

I feel no obligation to South Carolina National Bank because South Carolina National Bank waived its right to a deficiency judgment in the case of Palmetto State Savings and Loan Association v. B. Dale Joyner and Charlotte Joyner and Carolina Oil Co. of Bishopville and South Carolina National Bank. Therefore I ask that this action be dismissed.

In her affidavit opposing summary judgment, Mrs. Joyner asserted:

That moreover, she was informed at the time of the sale of the property securing payment on the loan for which she is alleged to have guaranteed payment, that the plaintiff was waiving any deficiency and she therefore believes she was released by operation of law from any further obligation to the bank since she had not signed any type of Guaranty Agreement.

None of the pleadings of the case of Palmetto State Savings and Loan Association v. Joyner, et al., are of record; however the appealed order contained the following:

Plaintiff had a second Mortgage on the business property jointly owned by the Defendants as discussed previously. In October, 1983, a prior lien holder of this property foreclosed on its mortgage. A public sale of the property failed to provide sufficient monies with which to pay both mortgages, and Plaintiff's account is outstanding in the amount of $27,174.92. In its Answer in the original foreclosure action, Plaintiff did not request a deficiency judgment in the event public sale provided insufficient funds with which to pay its Mortgage. Plaintiff requested the property be sold and the sale proceeds by [sic] applied to its Mortgage. Defendant Charlotte E. Joyner has alleged that such failure to pray for a deficiency judgment amounts to a waiver of a deficiency judgment. [Emphasis ours.]

The record contains the second mortgage and the promissory note to SCN. The note is not signed by Mrs. Joyner; she did join in the execution of the mortgage. Since the record of the foreclosure proceeding is not before us, we make the logical assumption, as is reflected in the appealed order, that Palmetto State Savings and Loan Association, who owned the first mortgage, instituted a foreclosure proceeding against both Mr. and Mrs. Joyner and that SCN in its responsive pleadings asked for foreclosure of its mortgage but did not assert its claim against Mrs. Joyner on the continuing Guaranty Agreement allegedly signed by her nor seek judgment against Mr. Joyner on the debt.

Mrs. Joyner made no exception to the appealed order on the basis of res judicata, i.e., that SCN could have, in the foreclosure action, litigated its claim against her on the Guaranty Agreement. Since no such exception was taken, we do not address this issue and indeed may not. Amick v. Hagler, 286 S.C. 481, 334 S.E.2d 525 (Ct.App.1985). We note that an exception raised on appeal must be on ...

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    ...(quoting Quality Towing, Inc. v. City of Myrtle Beach , 340 S.C. 29, 33, 530 S.E.2d 369, 371 (2000) ; S.C. Nat'l Bank v. Joyner , 289 S.C. 382, 387, 346 S.E.2d 329, 332 (Ct. App. 1986) )); see also Langston v. Niles , 265 S.C. 445, 455, 219 S.E.2d 829, 833 (1975) ("The purpose of pleadings ......
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