CitiMortgage, Inc. v. Trickey

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

CitiMortgage, Inc., Respondent/Appellant,

v.

Brodie M. Trickey aka Brodie McCary Trickey and
Barberry Woods Property Owners Association,
Defendants.

Of whom Brodie M. Trickey is the
Appellant/Respondent.

Appellate Case No. 2013-002437

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2015-UP-312
Heard April 21, 2015 – Filed June 24, 2015

AFFIRMED

Mary Leigh Arnold, of Mary Leigh Arnold, PA, of
Mount Pleasant, for Appellant/Respondent.

Damon Christian Wlodarczyk, of Riley Pope & Laney
LLC, of Columbia, for Respondent/Appellant.
PER CURIAM: This is a cross-appeal arising from a foreclosure action initiated
by Respondent/Appellant CitiMortgage, Inc., against Appellant/Respondent Brodie
M. Trickey. In the appealed order, the Master-in-Equity granted summary
judgment to CitiMortgage on Trickey's counterclaims but declined to grant
summary judgment to CitiMortgage on its foreclosure action. Trickey appeals the
dismissal of his counterclaims, and CitiMortgage cross-appeals the denial of
summary judgment on its foreclosure action. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to summary judgment on Trickey's counterclaim for breach of contract and
breach of good faith and fair dealing: Swinton Creek Nursery v. Edisto Farm
Credit, ACA, 334 S.C. 469, 487, 514 S.E.2d 126, 135 (1999) ("One who seeks to
recover damages for breach of a contract, to which he was a party, must show that
the contract has been performed on his part, or at least that he was, at the
appropriate time, able, ready, and willing to perform it." (internal quotation marks
omitted)); RoTec Servs., Inc. v. Encompass Servs., Inc., 359 S.C. 467, 473, 597
S.E.2d 881, 884 (Ct. App. 2004) ("[W]e conclude the implied covenant of good
faith and fair dealing is not an independent cause of action separate from the claim
for breach of contract."); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 562 (7th
Cir. 2012) (allowing a mortgagor who was ultimately denied a loan modification
under the Homes Affordable Modification Program to bring a common-law breach
of contract action against her financial institution because the financial institution
countersigned the temporary payment plan that the mortgagor had executed and
advised the mortgagor that she "would receive a permanent 'Loan Modification
Agreement' after the trial period, provided she was 'in compliance with this Loan
Trial Period and [her] representations . . . continue[d] to be true in all material
respects'" (alterations in original)).

2. As to summary judgment on Trickey's counterclaim for unjust enrichment:
Columbia Wholesale Co., Inc. v. Scudder May N.V., 312 S.C. 259, 261, 440 S.E.2d
129, 130 (1994) (noting quantum meruit has been recognized as an equitable
doctrine to allow recovery for unjust enrichment and stating the plaintiff, to
recover under quantum meruit, must show a benefit conferred on the defendant by
the plaintiff, realization of that benefit by the defendant, and retention by the
defendant of the benefit under conditions that make it unjust for the defendant to
retain the benefit without paying its value).
3. As to Trickey's counterclaim for negligent misrepresentation: Sauner v. Pub.
Serv. Auth. of S.C., 354 S.C. 397, 407, 581 S.E.2d 161, 166 (2003) (stating liability
for negligent misrepresentation requires showing (1) a false representation by the
defendant to the plaintiff, (2) a pecuniary interest of the defendant in making the
representation, (3) a duty of care owed by the defendant to communicate truthful
information to the plaintiff, (4) the defendant's breach of that duty by failing to
exercise due care, (5) justifiable reliance by the plaintiff on the representation, and
(6) a pecuniary loss suffered by the plaintiff as the proximate result of the
plaintiff's reliance on the representation).

4. As to Trickey's argument that the Master erred in considering an affidavit
submitted by CitiMortgage: M&M Grp., Inc. v. Holmes, 379 S.C. 468, 474, 666
S.E.2d 262, 265 (Ct. App. 2008) (holding that even though the appellant correctly
asserted on appeal the respondent did not comply with certain technical
requirements in moving for summary judgment, the appellant's failure to request
appropriate relief from the trial court during the hearing on the summary judgment
motion prevented this court from considering whether the appellant was prejudiced
by the noncompliance).

5. As to CitiMortgage's cross-appeal: Rule 59(f), SCRCP ("The time for appeal for
all parties shall be stayed by a timely motion under this Rule and shall run from the
receipt of written notice of entry of the order granting or denying such motions."
(emphasis added)); Silverman v. Campbell, 326 S.C. 208, 211, 486 S.E.2d 1, 2
(1997) ("[I]t is well-settled that the denial of summary judgment is not directly
appealable, nor is it appealable after final judgment." (citation omitted)); Morris v.
Anderson Cnty., 349 S.C. 607, 610, 564 S.E.2d 649, 651 (2002) (recognizing an
appellate court "may, as a matter of discretion, consider an unappealable order
along with an appealable issue where such a ruling will avoid unnecessary
litigation" (emphasis added)); Ballenger v. Bowen, 313 S.C. 476, 477, 443 S.E.2d
379, 380 (1994) ("A denial of a motion for summary judgment decides nothing
about the merits of the case, but simply decides the case should proceed to trial.").

AFFIRMED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.