Noel Owens v. Mountain Air Heating & Cooling

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Noel Owens, Appellant,

v.

Mountain Air Heating & Cooling, South Market Real
Estate, Demetra Caldera, and Ronald E. Gilmer,
Defendants,

Of which South Market Real Estate and Demetra Caldera
are the Respondents.

Appellate Case No. 2020-000054

Appeal From Richland County
Thomas A. Russo, Circuit Court Judge

Opinion No. 6017
Heard March 6, 2023 – Filed August 23, 2023

AFFIRMED

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

Margaret A. Collins and Elizabeth Dyanne Moore, both
of Palmetto State Law Group, LLC, of Columbia, for
Respondent South Market Real Estate.

Kelley Reed Leddy, of Salley Law Firm, P.A., of
Lexington, and William R. Padget, of HHP Law Group,
LLC, of Columbia, both for Respondent Demetra
Caldera.
LOCKEMY, A.J.: Noel Owens appeals the circuit court's ordering granting
summary judgment to Demetra Caldera and South Market Real Estate (South
Market) (collectively, Respondents). On appeal, Owens argues the grant of
summary judgment was improper because (1) the release signed on April 3, 2015,
could not have released a claim that did not arise until April 13, 2015; (2) her claim
is beyond the scope of the release; (3) the record contained evidence from which a
factfinder could reasonably conclude Caldera was an agent of South Market; and
(4) regardless of the outcome of this appeal, she is entitled to a jury trial on the
liability issues. We affirm.

FACTS/PROCEDURAL HISTORY

Owens engaged Caldera, a real estate agent, to purchase a home from Ronald E.
Gilmer. On April 3, 2015, Owens and Caldera signed a single-page form on the
respective lines for "Seller or Buyer" and "Licensee." The top of the form contains
a "South Market Realty" letterhead; the form provides provisions regarding a due
diligence period, disclaimer, and a release of liability and indemnification (the
Release & Indemnification). The entirety of the Release & Indemnification
provision states:

The buyer hereby releases, indemnifies[,] and holds
harmless South Market Real Estate and its licensees from
and of any and all actions, claims, or demands regarding:
(1) the recommendation of and selection of inspectors,
contractors, and service providers (including but not
limited to mortgage lenders and closing attorneys); (2)
the acts, claims, performance, and omissions of selected
inspectors, contractors, and service providers (including
but not limited to mortgage lenders and closing
attorneys); [and] (3) the verification of property
information.

Caldera alleges she provided a list of suggested inspectors to Owens; the list
includes Mountain Air Heating and Cooling (Mountain Air). Mountain Air
provided an invoice and HVAC inspection letter, both dated April 13, 2015. The
invoice states the Mountain Air HVAC technician "performed a single system
HVAC inspection [and f]ound everything is working well at this time." The
HVAC inspection letter identifies Caldera in the space provided for
"Realtor/Requested by" and identifies various components of the HVAC system as
"Good." Additionally, on April 13, 2015, Caldera emailed Owens "[t]he heating
and air looks good[. T]he inspector said it is well taken care of" and included
attachments of inspection documents. Owens claims that after closing on the
home, she discovered issues with the HVAC system that Mountain Air's inspection
did not reveal and asserts a June 2015 inspection showed problems with the HVAC
system.

After the subsequent inspection, email exchanges took place between Owens and
Tonya Graves, the broker in charge and owner of South Market. Graves emailed
Owens and suggested she contact Mountain Air to report the issues the additional
inspections revealed; Graves also stated she spoke with Caldera regarding Owens's
home purchase and she determined "that [Caldera] did everything by the book and
went above and beyond after the closing to try and help with this issue." In the
email, Owens stated her dissatisfaction with Caldera for selecting Mountain Air to
complete the initial inspection and stated her dissatisfaction and referenced
Caldera's April 13th email to Owens.

Owens filed a complaint against Mountain Air, Gilmer, and Respondents. As to
Mountain Air and Respondents, she asserted claims pursuant to the South Carolina
Unfair Trade Practices Act. 1 Owens also asserted claims of negligence, fraud,
negligent misrepresentation, breach of fiduciary duty, breach of contract, and
breach of contract accompanied by a fraudulent act against Respondents. Owens
alleged (1) Caldera was an employee, agent, and servant of South Market and
South Market had the right to control Caldera; (2) Caldera engaged Mountain Air
to complete the initial inspection; (3) Caldera represented to her the HVAC system
"looked good and that it was well taken care of," although inspections revealed
problems; (4) Owens relied on Caldera's representations prior to purchasing the
home; (5) Caldera should have known about the HVAC problems; and (6) Caldera
knew she was relying on Caldera to adequately represent the condition of the home
and Caldera breached her duties by not doing so. Subsequently, Respondents filed
their separate answers. In addition to the defenses raised, Caldera sought
indemnification from Owens, pursuant to the Release & Indemnification provision,
for any amounts she was found to be liable to Owens and attorney's fees and raised
a breach of contract counterclaim. Similarly, South Market also sought
indemnification.

Graves filed an affidavit stating that at all relevant times, Caldera was an
independent contractor and not an employee of South Market and it provided

1
S.C. Code Ann. §§ 39-5-10 to -560 (2023).
Caldera with a 1099 form to show compensation. Graves stated South Market
"had very little to do with the marketing, sale, and closing" of the property. She
noted Caldera provided Owens a disclaimer and release of liability and Owens
knew Respondents made no "representations as to the condition of the property or
work-product of inspectors." Finally, Graves stated Caldera forwarded all
inspection materials to Owens.

Caldera and South Market filed separate motions and memoranda for summary
judgement. Caldera argued the Release & Indemnification provision barred Owens
from any recovery and reiterated her breach of contract counterclaim and
indemnification claim. Caldera's attorney also provided an affidavit regarding
attorney's fees and stated Caldera had incurred $1,982.48 of cost to defend this
action. South Market argued (1) Caldera was an independent contractor and it was
not liable for her alleged actions or omissions; (2) the Release & Indemnification
provision barred Owens from any recovery; and (3) it was entitled to
indemnification.

In response to Respondents' motions for summary judgment, Owens asserted
summary judgment would be improper because (1) the Release & Indemnification
provision did not cover her prospective claim; (2) there was a factual issue of
agency regarding the relationship between Caldera and South Market; and (3)
indemnification was improper because Caldera and South Market were at fault.

Owens submitted an affidavit, in which she stated she initially spoke to Caldera at
South Market's office to inquire about purchasing a home and during that initial
call, Caldera transferred her call to another South Market employee. She stated
that at all relevant times, she believed Caldera was an agent of South Market.
Owens averred Caldera chose Mountain Air to complete the HVAC inspection and
reiterated Caldera's email to her stating "[t]he heating and air looks good." She
stated further inspections revealed problems not found by Mountain Air and
replacing the HVAC system and ducts costs her $8,400.

At the hearing on Respondents' motions for summary judgment, Caldera asserted
(1) her April 13th email to Owens communicated the results of the HVAC
inspection and did not represent her affirmative statement on the condition; (2) the
Release & Indemnification provision barred Owens's claim; (3) the Release &
Indemnification provision contemplated releasing Respondents from a prospective
action given the inspection had yet to take place; and (4) the Release &
Indemnification provision required Owens to indemnify Caldera. Caldera further
averred even if the HVAC inspection was conducted negligently, Mountain Air
was responsible for such negligence, not Respondents. South Market argued (1)
Owens chose Mountain Air; (2) the release was valid even though it was
prospective; (3) Caldera did not affirmatively state the condition of the HVAC
system but only relayed the inspection results; (4) the Release & Indemnification
provision required Owens to indemnify Respondents; and (5) Caldera was not an
agent of South Market.

Owens contended (1) Caldera chose Mountain Air to conduct the inspection; (2)
the disclaimer did not release her prospective claim; (3) Caldera affirmatively
represented the condition of the HVAC system and her representation was false;
and (4) she would not be liable to Respondents for indemnification because her
claim stemmed from their negligence. She asserted there were factual issues as to
whether Caldera's email was an affirmative representation on her part and whether
Caldera was an agent of South Market; she argued she presented a scintilla of
evidence to overcome summary judgment.

The circuit court granted Respondents' motions for summary judgment. It found
Caldera was a licensee of South Market and barred Owens's claim against
Respondents. It also found the Release & Indemnification provision applied to the
scope of Owens's claim. The circuit court determined pursuant to the Release &
Indemnification provision, Caldera and South Market "did not provide any
warranty as to the reliability or accuracy of any inspector" and Owens agreed to
hold Caldera and South Market harmless "for any actions or omissions by any
inspectors, contractors, and service providers." The circuit court ordered Owens to
indemnify Respondents for the costs of defending the action. It stated if the parties
disputed the amount of indemnification, the court would hold a damages hearing.
Owens filed a motion to reconsider, which the circuit court denied. This appeal
followed.

ISSUES ON APPEAL

1. Did the circuit court err in granting summary judgment because the court
concluded Owens released a claim that had not yet come into being at the time the
parties signed the release document?

2. Did the circuit court err in granting summary judgment on the basis that the
Owens's claim was not beyond the scope of the release language at issue?

3. Did the circuit court err in finding that summary judgment was proper on the
question of whether Caldera was an agent of South Market?

4. Did the circuit court err in finding that Owens was not entitled to a jury trial on
the remainder of the Respondents' claims?
STANDARD OF REVIEW

"In reviewing a grant of summary judgment, our appellate court applies the same
standard as the trial court under Rule 56(c), SCRCP." Woodson v. DLI Props.,
LLC, 406 S.C. 517, 528, 753 S.E.2d 428, 434 (2014). A trial court may properly
grant a motion for summary judgment when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "A grant of
summary judgment is proper when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law." Town of
Summerville v. City of North Charleston, 378 S.C. 107, 109-10, 662 S.E.2d 40, 41
(2008). "In determining whether any triable issues of fact exist, the court must
view the evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the non-moving party." Brockbank v. Best
Cap. Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000).

"Under Rule 56(c), the party seeking summary judgment has the initial burden of
demonstrating the absence of a genuine issue of material fact." Lanham v. Blue
Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002).
"Once the party moving for summary judgment meets the initial burden of showing
an absence of evidentiary support for the opponent's case, the opponent cannot
simply rest on mere allegations or denials contained in the pleadings." Regions
Bank v. Schmauch, 354 S.C. 648, 660, 582 S.E.2d 432, 438 (Ct. App. 2003).
"[T]he nonmoving party must come forward with specific facts showing there is a
genuine issue for trial." Id.

LAW/ANALYSIS

I. Prospective Claim

Owens argues the circuit court erred in granting summary judgment because the
release signed on April 3, 2015, could not have released a claim that did not arise
until April 13, 2015, when Caldera emailed her. She argues that pursuant to
Gardner v. City of Columbia Police Department, 2 a general release "ordinarily
covers all claims and demands due at the time of its execution, and within
contemplation of the parties." We disagree.

Our appellate courts have "generally upheld limitations of liability and exculpatory

2
216 S.C. 219, 223, 57 S.E.2d 308, 310 (1950).
clauses, finding they are commercially reasonable." Maybank v. BB&T Corp., 416
S.C. 541, 573, 787 S.E.2d 498, 515 (2016). However, "the law disfavors such
provisions, and courts must strictly construe the language of the provision against
the drafter." Id. at 574, 787 S.E.2d at 515. "Nevertheless, a court's ultimate duty is
confined to interpreting the contractual provisions agreed to by the parties—
regardless of their wisdom or folly, apparent unreasonableness, or any failure of
the parties to guard their interests carefully." Id.; see also Huckaby v. Confederate
Motor Speedway, Inc., 276 S.C. 629, 630, 281 S.E.2d 223, 224 (1981) ("Although
exculpatory contracts are not favored by the courts, as they usually tend to induce a
want of care, we have upheld them in some instances recognizing people should be
free to contract as they choose.").

In Huckaby, the appellant signed a release of liability waiver before racing at the
respondent's track. 276 S.C. at 630, 281 S.E.2d at 223. Later that evening, the
appellant was injured participating in a race and brought a claim alleging the
respondent's negligence caused his injuries. Id. The trial court granted the
respondent's motion for summary judgment and held "the release operates as a
complete bar to [the appellant's] action." Id. at 630, 281 S.E.2d at 223-24. Our
supreme court affirmed the grant of summary judgment and determined the
"appellant voluntarily entered into the waiver and release agreement with [the]
respondent and his cause of action is barred." Id. at 631, 281 S.E.2d at 224.

In McCune v. Myrtle Beach Indoor Shooting Range, Inc., the appellant brought suit
against the respondent, a shooting range that offered paintball games. 364 S.C.
242, 245, 612 S.E.2d 462, 463 (Ct. App. 2005). Prior to participating, the
appellant signed a waiver releasing the range from any liability for injuries she
may have sustained. Id. at 248-49, 612 S.E.2d at 465-66. The appellant suffered
an injury during a paintball game and maintained causes of action for negligence
and strict liability against the paintball range. Id. at 245, 612 S.E.2d at 463. The
circuit court granted the respondent's motion for summary judgment. Id. at 246,
612 S.E.2d at 464. Our supreme court affirmed, holding the release agreement was
"sufficient to limit the liability of the [respondent]." Id. at 249, 612 S.E.2d at 465.

We hold the circuit court did not err in determining the Release and
Indemnification provision released Respondents from the liability of Owens's
claim. See Town of Summerville, 378 S.C. at 109-10, 662 S.E.2d at 41 ("A grant of
summary judgment is proper when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law."). The release
explicitly provides that Owens "releases, indemnifies[,] and holds harmless South
Market Real Estate and its licensees from and of any and all actions, claims, or
demands regarding" the selection of home inspectors or home inspectors acts and
omissions. The facts here are akin to Huckaby and McCune, in which this court
and our supreme court determined exculpatory clauses barred respective appellants'
prospective claims. By applying basic contract principles and the general rule
upholding limitations of liability and exculpatory clauses, the release
unambiguously released Respondents from Owens's claim. See Ecclesiastes Prod.
Ministries v. Outparcel Assocs., LLC, 374 S.C. 483, 497, 649 S.E.2d 494, 501 (Ct.
App. 2007) ("A release is a contract and contract principles of law should be used
to determine what the parties intended."); Maybank, 416 S.C. at 573, 787 S.E.2d at
515 ("When a contract is entered into freely and voluntarily, contractual limitations
are normally enforced."); id. at 574, 787 S.E.2d at 515 ("[A] court's ultimate duty
is confined to interpreting the contractual provisions agreed to by the parties—
regardless of their wisdom or folly, apparent unreasonableness, or any failure of
the parties to guard their interests carefully.").

Owens argues that pursuant to Gardner, a release cannot be prospective. 216 S.C.
219, 57 S.E.2d 308. We disagree. In Gardner, the general release at issue, and
agreed to by the injured plaintiff and a third-party construction company after an
accident had occurred and in contemplation of compensation, stated the injured
plaintiff agreed "to release [the third-party construction company] of any trouble
whatsoever." Id. at 223, 57 S.E.2d at 309 (emphasis added). The Gardner court
found: "[A] general release, such as the one now before us, not restricted by its
terms to particular claims or demands, ordinarily covers all claims and demands
due at the time of its execution, and within the contemplation of the parties." Id. at
223, 57 S.E.2d at 310. Unlike in Gardner, the Release and Indemnification
provision here is not a "general release," but relates to "particular claims and
demand" regarding acts yet to be performed, the recommendation and acts or
omissions of inspectors, and therefore, applies to prospective claims. We conclude
summary judgment was proper because the Release and Indemnification provision
barred Owens's claim. Accordingly, we affirm as to this issue.

II. Scope of the Release and Indemnification Provision

Owens argues the circuit court erred in granting summary judgment because her
claim was beyond the scope of the Release and Indemnification provision. She
contends Caldera's April 13th email constituted, on Caldera's part, an affirmative
representation of the HVAC system's condition and the Release and
Indemnification provision does not cover this affirmative representation. Owens
asserts the circuit court failed to consider the reasonable inferences in her favor.
We disagree.

We hold the circuit court did not err in granting summary judgment because
Owens's claim was within the scope of the release. See S. Glass & Plastics Co. v.
Duke, 367 S.C. 421, 428, 626 S.E.2d 19, 22 (Ct. App. 2005) ("A release is a
contract, and the scope of a release is gathered by its terms."). We find no
evidence in the record establishes Caldera affirmatively represented the condition
of the HVAC system to Owens or she knew the condition of the system. See Rule
56(c) (stating a court may grant summary judgment when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law"). Owens's
contention that Caldera's email affirmatively represented the condition of the
HVAC system "simply rest[s] on mere allegations or denials contained in the
pleadings." See Schmauch, 354 S.C. at 660, 582 S.E.2d at 438 ("Once the party
moving for summary judgment meets the initial burden of showing an absence of
evidentiary support for the opponent's case, the opponent cannot simply rest on
mere allegations or denials contained in the pleadings."). We conclude Caldera's
email to Owens unambiguously relayed the thoughts of Mountain Air's inspector
and included attached documents related to the inspection. Therefore, there was no
genuine issue of material fact. Accordingly, we affirm as to this issue.

III. Agency

Owens argues the circuit court erred in granting summary judgment because the
record contains evidence from which a factfinder could determine established that
Caldera was an agent, actual or apparent, of South Market. We disagree.

We hold the circuit court did not err in finding Caldera was a licensee or
independent contractor of South Market. We find Caldera and South Market
established there was no evidence in the record demonstrating that an actual
agency relationship existed between Caldera and South Market. See Lanham, 349
S.C. at 361, 563 S.E.2d at 333 ("Under Rule 56(c), the party seeking summary
judgment has the initial burden of demonstrating the absence of a genuine issue of
material fact."). In her affidavit, Graves stated South Market had little control over
Caldera and it had very little to do with the "marketing, sale, and closing" of the
property. Additionally, Owens failed to "come forward with specific facts showing
there [was] a genuine issue" as to the control South Market had over Caldera in the
purported principal-agent relationship. See Schmauch, 354 S.C. at 660, 582 S.E.2d
at 438 ("[T]he nonmoving party must come forward with specific facts showing
there is a genuine issue for trial."); see also Froneberger v. Smith, 406 S.C. 37, 49,
748 S.E.2d 625, 631 (Ct. App. 2013) ("Agency is the fiduciary relationship that
arises when one person (a 'principal') manifests assent to another person (an
'agent') that the agent shall act on the principal's behalf and subject to the
principal's control.") (quoting Restatement (Third) of Agency § 1.01 (2006)).
Rather, Owens "rest[ed] on mere allegations or denials contained in the pleadings."
See Schmauch, 354 S.C. at 660, 582 S.E.2d at 438 ("Once the party moving for
summary judgment meets the initial burden of showing an absence of evidentiary
support for the opponent's case, the opponent cannot simply rest on mere
allegations or denials contained in the pleadings.").

Additionally, we hold Respondents established there was no dispute as to whether
an apparent agency relationship existed and Owens failed to come forward with
specific facts showing the existence of such a relationship. See Lanham, 349 S.C.
at 361, 563 S.E.2d at 333 ("Under Rule 56(c), the party seeking summary
judgment has the initial burden of demonstrating the absence of a genuine issue of
material fact."); Schmauch, 354 S.C. at 660, 582 S.E.2d at 438 ("[T]he nonmoving
party must come forward with specific facts showing there is a genuine issue for
trial."). Rather, we find Owens relies on the allegations in her pleadings to argue
South Market's utilization of its logo on the release document's letterhead and
Graves's failure to disavow Caldera as South Market's agent established apparent
agency. See Schmauch, 354 S.C. at 660, 582 S.E.2d at 438 ("Once the party
moving for summary judgment meets the initial burden of showing an absence of
evidentiary support for the opponent's case, the opponent cannot simply rest on
mere allegations or denials contained in the pleadings."); Frasier v. Palmetto
Homes of Florence, Inc., 323 S.C. 240, 245, 473 S.E.2d 865, 868 (Ct. App. 1996)
("To establish apparent agency, it is not enough simply to prove that the purported
principal by either affirmative conduct or conscious and voluntary inaction has
represented another to be his agent or servant."). Furthermore, Owens failed to
show any reliance and change in position she had on South Market's alleged
representation of apparent authority. See Frasier, 323 S.C. at 245, 473 S.E.2d at
868 ("In order for a third party to recover against the principal based upon this
theory, it must be shown that [s]he reasonably relied on the indicia of authority
originated by the principal and such reliance must have effected a change of
position by the third party."). Rather, Owens acknowledges in her appellate brief
that she initially reached out to Caldera.

Because Caldera was a licensee and released from liability by the Release and
Indemnification provision, the provision barred Owens from recovering against
Caldera and South Market. Therefore, the circuit court did not err in granting
summary judgment and we affirm as to this issue.

IV. Indemnification Claims

Owens contends she is not required to indemnify Respondents because they were
negligent. Additionally, she argues the circuit court erred in determining a
damages hearing would be the proper avenue if the parties disagreed on the amount
she was to indemnify Respondents. Rather, Owens asserts she is entitled to a jury
trial, not a damages hearing, on Respondents' indemnification claims against her,
regardless of the outcome of this appeal. We disagree.

Given that (1) the Release and Indemnification provision allows for
indemnification; (2) this court reviews the reasonableness of awarded attorney's
fees under an abuse of discretion standard; and (3) the only amount of
indemnification would be attorneys' fees and costs, we hold the circuit court did
not err in ordering a damages hearing if the parties dispute the indemnification
amount. See Ecclesiastes Prod. Ministries, 374 S.C. at 497, 649 S.E.2d at 501
(determining "[a] release is a contract"); Blumberg v. Nealco, Inc., 310 S.C. 492,
493, 427 S.E.2d 659, 660 (1993) ("The general rule is that attorney's fees are not
recoverable unless authorized by contract or statute."); id. ("When there is a
contract, the award of attorney's fees is left to the discretion of the trial judge and
will not be disturbed unless an abuse of discretion is shown."). Accordingly, we
affirm as to this issue.

CONCLUSION

Based on the foregoing, the circuit court's order granting summary judgment is

AFFIRMED.

KONDUROS and VINSON, JJ., concur.