Bank of America v. Bethea

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

Bank of America, N.A. successor by merger to BAC
Home Loans Servicing, LP f/k/a Countrywide Home
Loans Servicing, LP, Respondent,

v.

Shawn L. Bethea and South Carolina Department of
Motor Vehicles, Defendants,

Of whom Shawn L. Bethea is the Appellant.

Appellate Case No. 2015-000985

Appeal From Dillon County
Harry Roberson Easterling, Jr., Special Referee

Unpublished Opinion No. 2017-UP-261
Submitted April 3, 2017 – Filed June 28, 2017

AFFIRMED

Shawn L. Bethea, of Dillon, pro se.

Trent M. Grissom, of McGuire Woods, LLP, of
Charlotte, North Carolina, for Respondent.
PER CURIAM: Shawn L. Bethea appeals the special referee's order granting
summary judgment in favor of Bank of America (the Bank) in the Bank's
foreclosure action against Bethea's property (the Land) on which a mobile home
was located. Bethea argues the special referee erred by (1) finding judicial
estoppel barred him from asserting the mobile home was not affixed to the Land;
(2) granting the Bank's motion for summary judgment despite a magistrate's court
order granting him title to the mobile home in a storageman's lien action, and (3)
finding the magistrate did not have subject matter jurisdiction over the mobile
home in the previous action. 1 We affirm.

1. We find no error by the special referee in finding judicial estoppel barred
Bethea from asserting the mobile home was not affixed to the Land. "Estoppel is
equitable in nature. In an action tried in equity by a special referee alone, the
appellate court may view the evidence in accordance with its own view of the
preponderance of the evidence, though it is not required to disregard the findings
of the lower court." McDaniel v. S.C. Dep't of Pub. Safety, 325 S.C. 405, 409, 481
S.E.2d 155, 157 (Ct. App. 1996) (citation omitted).

Bethea asserted in bankruptcy court in 2004 that the mobile home was real
property. When Bethea discovered in 2010 that the certificate of title to the mobile
home was never transferred into his name, he attempted to change the certificate of
title. When he was unsuccessful, he filed the action in magistrate's court alleging
rents due pursuant to a storageman's lien. The foregoing actions indicate a
continued belief by Bethea that he owned the mobile home throughout this time
and the magistrate's action was an attempt to effectuate the true state of the title of
the mobile home. Bethea's allegation in this foreclosure action that the mobile
home was not part of the Land is inconsistent with his years of attempts to assert
otherwise, including in the bankruptcy action. See Hayne Fed. Credit Union v.
Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997) ("Judicial estoppel
precludes a party from adopting a position in conflict with one earlier taken in the
same or related litigation."); id. ("The purpose or function of the doctrine is to
protect the integrity of the judicial process or the integrity of courts rather than to
protect litigants from allegedly improper or deceitful conduct by their adversaries.
Judicial estoppel generally applies only to inconsistent statements of fact." (citation
omitted)); see Auto-Owners Ins. Co. v. Rhodes, 405 S.C. 584, 598, 748 S.E.2d 781,
788 (2013) ("For the doctrine of judicial estoppel to apply, . . . two inconsistent
positions [must be] taken by the same party [and] . . . the inconsistency must be
part of an intentional effort to mislead the court . . . .").

1
We have consolidated and reorganized Bethea's issues on appeal.
We find Bethea's allegation in the foreclosure action that the mobile home was not
affixed to the Land was inconsistent with his allegations in the bankruptcy action
and was an intentional effort to mislead the court in the foreclosure action. Thus,
we affirm the special referee's ruling Bethea was judicially estopped from alleging
the mobile home was not affixed to the Land. See Hayne, 327 S.C. at 252, 489
S.E.2d at 477 ("When a party has formally asserted a certain version of the facts in
litigation, he cannot later change those facts when the initial version no longer suits
him."). 2

2. We find no error by the special referee in finding the mobile home was a
permanent fixture to the Land and, therefore, granting the Bank's motion for
summary judgment. "When reviewing an order granting summary judgment, the
appellate court applies the same standard as the trial court." Carolina Chloride,
Inc. v. S.C. Dep't of Transp., 391 S.C. 429, 434, 706 S.E.2d 501, 504 (2011).
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show …
no genuine issue [exists] as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Rule 56(c), SCRCP.

"In an action to foreclose a mortgage on real property, the mortgagee has the
burden of proving a disputed mortgage by the preponderance of the evidence."
Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 499, 319 S.E.2d 354, 355 (Ct.
App. 1984). "The determination whether . . . an item is a fixture is a mixed
question of law and fact." Carjow, LLC v. Simmons, 349 S.C. 514, 519, 563
S.E.2d 359, 362 (Ct. App. 2002). "A mobile home usually is classified as personal
property." Brockbank v. Best Capital Corp., 341 S.C. 372, 379, 534 S.E.2d 688,
692 (2000). However, a court may adjudicate a mobile home to be a fixture to real
property. City of North Charleston v. Claxton, 315 S.C. 56, 63, 431 S.E.2d 610,
614 (Ct. App. 1993). "In determining whether an item is a fixture, courts should
consider the following factors: '(1) mode of attachment, (2) character of the
structure or article, (3) the intent of the parties making the annexation, and (4) the

2
To the extent Bethea asserts on appeal the Bank acted with unclean hands, the
issue is not preserved for appellate review because Bethea failed to raise this
argument to the special referee. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first
time on appeal, but must have been raised to and ruled upon by the trial [court] to
be preserved for appellate review.").
relationship of the parties.'" Carjow, 349 S.C. at 519, 563 S.E.2d at 362 (quoting
Hyman v. Wellman Enters., 337 S.C. 80, 84, 522 S.E.2d 150, 152 (Ct. App. 1999)).

Bethea's predecessor in interest purchased the mobile home and the real estate,
intending to have the mobile home become a fixture, and she indicated her intent
by signing the affidavit with the county. In addition, a September 5, 2000 plat
depicted an "existing mobile home" as part of the Land. In June 2001, the prior
owner executed a deed in lieu of foreclosure. The warranty deed provided a legal
description of the real estate and stated "[t]his includes any manufactured home
owned by the defendant(s) located on this property."

The deed included a legal description of the Land and stated the conveyance
"includes a 2001 Pioneer Mobile Home." In November 2002, Bethea refinanced
the mobile home and obtained an appraisal of the Land for financing. Although
the mobile home was not referenced in the mortgage, the description in the
appraisal included a manufactured home on a "brick foundation." Additionally, all
of the supporting documentation for the refinance indicated the mobile home was
connected to the real estate, including the listing of manufactured house as the type
of property on the schedule of real estate owned. Also, in his 2004 bankruptcy
action, Bethea listed the real estate and the mobile home together as real property,
attaching the 2002 appraisals to establish a value of the property. We find no
genuine issue of material fact as to whether the mobile home was a fixture, and we
find no error by the special referee in granting the Bank's motion for summary
judgment. See Regions Bank v. Wingard Props., Inc., 394 S.C. 241, 253, 715
S.E.2d 348, 355 (Ct. App. 2011) (explaining equity "look[s] to the substance and
intent of the parties, and give[s] a construction consistent with such intent").

3. We need not reach Bethea's argument the special referee erred in finding the
magistrate did not have subject matter jurisdiction over the previous storageman's
lien action. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review
remaining issues when its determination of another issue is dispositive of the
appeal).

AFFIRMED. 3

WILLIAMS and KONDUROS, JJ., and LEE, A.J., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR. We
affirm pursuant to Rule 220(b), SCACR.