Yadkin Valley v. Oaktree Homes

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

Yadkin Valley Bank & Trust, Respondent,

v.

Oaktree Homes, Inc., Dawne M. Ras and Thomas C. Ras,
Daniel Simpson, Above All Services, Inc., Carter
Lumber Company, Efficient Painting Contractors, Inc.,
Creative Concepts, and Solid As a Rock, Inc.,
Defendants,

Of whom Oaktree Homes, Inc., is the Appellant.

Appellate Case No. 2011-197970

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2014-UP-306
Heard September 12, 2013 – Filed July 30, 2014

AFFIRMED

John S. Nichols and Blake Alexander Hewitt, both of
Bluestein Nichols Thompson & Delgado, LLC, of
Columbia, and Chad Alan McGowan and William Angus
McKinnon, both of McGowan Hood & Felder, LLC, of
Rock Hill, for Appellant.
James W. Sheedy and Susan Elizabeth Driscoll, both of
Driscoll Sheedy, P.A., of Charlotte, N.C., for
Respondent.

PER CURIAM: Oaktree Homes, Inc. (Oaktree) appeals the trial court's order
granting summary judgment to Yadkin Valley Bank & Trust (Yadkin Valley) on
Oaktree's counterclaims for breach of contract, negligent misrepresentation, and
breach of contract accompanied by a fraudulent act. Oaktree also argues the trial
court erred in holding it waived its right to a jury trial on the counterclaims.

1. We find the trial court did not err in holding Oaktree's counterclaims against
Yadkin Valley failed as a matter of law because it was unable to produce a written
loan agreement. The lender statute of frauds precludes certain actions regarding
loans for money where there is no writing evidencing the alleged promise or
agreement. See S.C. Code Ann. § 37-10-107(1) (2002) (providing that no person
may maintain an action or defense based upon a failure to perform an alleged
commitment or agreement to lend or borrow money in excess of fifty thousand
dollars unless that person "has received a writing from the party to be charged
containing the material terms and conditions of the promise, undertaking, accepted
offer, commitment, or agreement and the party to be charged, or its duly authorized
agent, has signed the writing"). Jurisdictions that allow a party to submit parol or
extrinsic evidence to establish proof of a lost memorandum in order to "avoid" the
requirements set forth in the general statute of frauds require that evidence to be
clear and convincing. See Weinsier v. Soffer, 358 So. 2d 61, 63 (Fla. Dist. Ct. App.
1978) (stating proof of a lost document must be clear, strong and unequivocal);
Mossman v. Hawaiian Trust Co., 361 P.2d 374, 379 (Haw. 1961) (stating the proof
to establish a lost memorandum must be clear and convincing); Zander v. Ogihara
Corp., 540 N.W.2d 702, 705 (Mich. Ct. App. 1995) (holding that extrinsic or parol
evidence of alleged signature on a contract must be "'clear, strong, and
unequivocal,' i.e., clear and convincing"); Chakur v. Zena, 233 S.W.2d 200, 202
(Tex. Civ. App. 1950) (stating proof of a lost memorandum must be clear and
convincing); 72 Am. Jur. 2d Statute of Frauds § 194 (2012) ("Proof to establish the
lost memorandum of a contract must be clear and convincing. The memorandum
itself is, of course, the best evidence of its contents, and if its loss or destruction is
not proved, secondary evidence is not admissible."). We hold that even if this
court were to accept the lost memorandum exception to the general statute of
frauds applied to the lender statute of frauds, Oaktree failed to provide the required
clear and convincing evidence. See Satcher v. Satcher, 351 S.C. 477, 483, 570
S.E.2d 535, 538 (Ct. App. 2002) (defining clear and convincing evidence as the
degree of proof that provides the fact finder with a "firm belief as to the allegations
sought to be established"); id. ("Such measure of proof is intermediate, more than a
mere preponderance but less than is required for proof beyond a reasonable doubt;
it does not mean clear and unequivocal."); see also Hancock v. Mid-South Mgmt.
Co., 381 S.C. 326, 330-31, 673 S.E.2d 801, 803 (2009) ("[I]n cases requiring a
heightened burden of proof or in cases applying federal law, we hold that the non-
moving party must submit more than a mere scintilla of evidence to withstand a
motion for summary judgment."). The evidence Oaktree submitted concerning the
existence and terms of the loan commitment letter was self-serving and
contradictory. See Weinsier, 358 So. 2d at 63 ("The very purpose of the [s]tatute
of [f]rauds is defeated where the sole proof of the existence and contents of a
document relied upon to avoid the [s]tatute is the testimony of the plaintiff.");
Zander, 540 N.W.2d at 704, 706 (reversing the trial court's denial of defendant's
motions for directed verdict and JNOV, and explaining it would not "permit
plaintiffs to defeat the purpose and intent of this statute solely on the basis of their
own self-serving testimony").

2. We need not address Oaktree's remaining issues. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(ruling an appellate court need not review remaining issues when its determination
of a prior issue is dispositive of the appeal).

AFFIRMED.

HUFF, GEATHERS, and LOCKEMY, JJ., concur.