Ugino v. Peter

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.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Michael R. and
Donna S. Ugino, Appellants,

v.

Carl W. Peter,
H. Stephen Ray, individually and in his capacity as an agent for Wachovia
Mortgage Corporation, and Wachovia Mortgage Corporation,

Of whom Carl W.
Peter is Respondent.

Appeal From Lexington County

R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2011-UP-364

Submitted May 1, 2011 – Filed June 30,
2011   

AFFIRMED

Richard J. Breibart, of Lexington, for
Appellant.

James Edward Bradley, of W. Columbia, for
Respondent.

PER CURIAM: In
this action for breach of contract and other claims arising from a failed real
estate transaction, Michael R. and Donna S. Ugino appeal the grant of summary
judgment to Carl W. Peter.  We affirm.[1]

1.  The Uginos argue
Peter's summary judgment motion addressed only their contract claims and the
trial judge therefore should not have dismissed their tort claims as well.  We disagree
with these assertions.  Peter's summary judgment motion was not restricted to
any particular cause of action asserted by the Uginos.  Furthermore, the motion
was based in part on the failure of the financing condition in the contract. 
An absence of a genuine issue of material fact concerning this ground would
absolve Peter of not only the breach of contract claim but also of the Uginos'
claim for breach of contract accompanied by a fraudulent act.  See Connor
v. City of Forest Acres, 348 S.C. 454, 465, 560 S.E.2d 606, 612 (2002)
(stating that one of the elements for a claim of breach of contract accompanied
by a fraudulent act is a breach of contract).  The Uginos' fraud and negligence
causes of action arose from Peter's agreement to purchase their home, an
agreement that was ultimately excused under the provisions of the parties'
contract by the failure of the financing condition, a circumstance that was not
anticipated when the contract was made.  See Koontz v. Thomas,
333 S.C. 702, 713, 511 S.E.2d 407, 413 (Ct. App. 1999) (stating a negligent
misrepresentation "must relate to a present or pre-existing fact and be
false when made").  Likewise, the gravamen of the Uginos' civil conspiracy
claim was Peter's refusal to perform under the contract, a refusal Peter
asserted was based on the parties' agreement and Wachovia's rejection of his
financing application.  Given these circumstances, we hold the trial judge
correctly considered all causes of action asserted by the Uginos in their
complaint when he determined that Peter was entitled to summary judgment.  See Camp v. Camp, 386 S.C. 571, 575-76, 689 S.E.2d 634, 636 (2010) (holding
that the particularity requirement of Rule 7(b)(1), SCRCP is to be read
flexibly in light of the circumstances of each case and should not be applied in
an overly technical fashion when doing so would not serve the purpose behind
the rule).

2.  The Uginos
argue the trial judge erred in holding Peter's performance under the contract
was excused because of Peter's inability to obtain financing for his purchase
of their home.  They base their argument on the absence of any provision in the
contract stating that Peter needed to secure financing for one hundred percent
of the purchase price and cite a provision in the contract indicating the
amount to be financed and the amount to be paid down at closing were "to
be determined."  The Uginos have correctly described these particular
contract terms; however, we disagree that these terms are sufficient to prevent
the grant of summary judgment.  Although the contract may not have required
Peter to obtain financing for the entire contract price, it was contingent on both
Peter's ability to obtain a mortgage from "the lender of his choice" and "the Property appraising, according to the Lender's appraisal or other
appraisal as agreed, for the selling price or more."  Here, Peter's chosen
lender did not appraise the property "for the selling price or
more."  Although, as the Uginos note in their reply brief, Peter himself
commissioned an appraisal that indicated the value of the subject property
exceeded the contract price, he did not "agree" to this appraisal and
there is no evidence that he acted unreasonably in rejecting it.  See M&M
Group v. Holmes, 379 S.C. 468, 476, 666 S.E.2d 262, 266 (Ct. App. 2008)
(indicating that the force and effect of a legal instrument is to be determined
from the language in the instrument if the language is plain, unambiguous, and
capable of only one interpretation).

3.  Finally, the
Uginos contend that other lenders would have provided financing for one hundred
percent of the purchase price and that Peter therefore violated an implied
covenant of good faith and fair dealing in refusing to avail himself of these
possibilities.  We disagree.  See Adams v. G.J. Creel & Sons,
320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995) (acknowledging that "[t]here
exists in every contract an implied covenant of good faith and fair
dealing," but also stating "there is no breach of an implied covenant
of good faith where a party to a contract has done what provisions of the
contract expressly gave him the right to do").  Here, Peter's contractual
obligations were set forth in the parties' agreement, which further provided
that his purchase of the Uginos' home was contingent on a condition precedent
that was not met.  Peter applied for financing from the lender of his choice,
as the contract required him to do.  When the lender he chose appraised the
property for less than the selling price, Peter was not required to complete
the sale.

AFFIRMED.

HUFF,
WILLIAMS, and THOMAS, JJ., concur.

[1]  We decide this case without oral argument pursuant
to Rule 215, SCACR.