Cisson Construction, Inc. v. Reynolds & Associates, Inc.

429 S.E.2d 847, 311 S.C. 499, 1993 S.C. App. LEXIS 62
CourtCourt of Appeals of South Carolina
DecidedApril 19, 1993
Docket1995
StatusPublished
Cited by6 cases

This text of 429 S.E.2d 847 (Cisson Construction, Inc. v. Reynolds & Associates, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cisson Construction, Inc. v. Reynolds & Associates, Inc., 429 S.E.2d 847, 311 S.C. 499, 1993 S.C. App. LEXIS 62 (S.C. Ct. App. 1993).

Opinion

Cureton, Judge:

Thomas W. Campbell (Campbell) appeals the master’s orders entering summary judgment against him and a deficiency judgment for amounts unpaid after foreclosure. We affirm in part, reverse in part, and remand in part.

Reynolds & Associates (Reynolds) obtained a loan of $2,250,000 from Security Federal, the respondent, to build a shopping center in Charleston County. Reynolds and Campbell executed a promissory note for the loan amount on February 24, 1988. Reynolds also executed a mortgage and an assignment of leases, rents, and profits in favor of Security Federal. Although Campbell was not a party to the mortgage, he executed a continuing guaranty of payment in favor of Security Federal on February 24,1988.

In February 1990, Reynolds and Campbell failed to make the payment then due on the note. In April 1990, Reynolds attempted to tender payment to Security Federal in an amount insufficient to bring the note current but was refused.

On April, 17 1990, Cisson Construction, the plaintiff, initiated the present action to foreclose its mechanic’s lien on the property. Security Federal, one of the defendants named in [501]*501Cisson’s foreclosure proceeding, cross claimed against Reynolds and Campbell to foreclose its mortgage and to obtain a deficiency judgment for any amount that would be unpaid after sale of the property. Campbell answered Cisson’s complaint alleging that Cisson had failed to state a claim against him. In his answer to Security Federal’s cross claim, Campbell asserted that if a deficiency judgment were awarded against him, he was entitled to a setoff because Security Federal had failed to mitigate its damages by not collecting rents from the tenants.

On April 20,1990, Security Federal declared the note in default and gave notice to Reynolds of its decision to accelerate payment of all amounts due under the note.

On August 6, 1990, Security Federal notified the shopping center’s tenants that all rents should be sent directly to it pending the appointment of a receiver. The total rent due from all tenants was approximately $20,000 per month.

On September 11,1990, Security Federal filed a motion requesting appointment of a receiver to manage the property and collect the rents.

On October 30, 1990, Security Federal filed a motion for summary judgment, requesting that the master order sale of the property with the proceeds going to Security Federal and that the master enter a deficiency judgment if the sale proceeds were inadequate. Campbell opposed the entry of summary judgment on the question of damages.

On November 14,1990, the master appointed a receiver. Security Federal turned over $41,000 in rents which it had collected since August to the receiver.

On January 21,1991, the master granted Security Federal’s motion for summary judgment on the note given by Reynolds and Campbell; he awarded all sums requested by Security Federal, including $74,487 in unpaid taxes for 1988 and 1989, $26,057 in unpaid taxes for 1990, and $65,189 in attorney fees.

On February 26, 1991, Security Federal bid $2,157,000 at the foreclosure sale; this bid became the final purchase price on March 28,1991.

On May 27, 1991, the master heard both Campbell’s motion to amend the master’s January order for summary judgment, and Security Federal’s request for calculation of a deficiency judgment. On September 10, 1991, the master entered an [502]*502order of deficiency judgment of $373,1721 against Campbell and denied Campbell’s motion to alter or amend the order for summary judgment. In this order, the master found that although Reynolds had made a tender of payment, Security Federal was justified in refusing this tender and not acting sooner to collect the rents because it did not want to jeopardize its right to declare a default, accelerate, and foreclose by Campbell’s assertion of waiver.

On appeal, Campbell asserts that the master erred in 1) awarding summary judgment in the full amount requested by Security Federal because there was a genuine issue of material fact as to whether Security Federal had mitigated its damages; 2) awarding Security Federal $65,189 in attorney fees because this award was without a sufficient evidentiary base and was unreasonably high; and 3) adding past due taxes and maintenance fees to the deficiency judgment entered against Campbell where the note did not include an undertaking by Campbell to pay these expenses and where Campbell neither signed the mortgage nor had an ownership interest in the mortgaged property.

I.

Campbell asserts that although the master correctly found that Security Federal had a duty to mitigate, the master erred in awarding summary judgment in the full amount requested by Security Federal because Security Federal’s refusal of Reynolds’ tender of payment in April 1990,2 its delay in the exercise of its rights to appoint a receiver,3 and its delay in the exercise of its right to collect rents without appointment of a receiver, were unreasonable and created an issue of material fact as to whether Security Federal had mitigated its damages. We disagree.

Summary judgment is appropriate where there is no genuine issue of material fact. Rule 56(c), SCRCP, Hamilton v. [503]*503Miller, 301 S.C. 45, 47, 389 S.E. ((2d)) 652, 653 (1990). The duty to mitigate losses applies to contracts. E.g., U.S. Rubber Co. v. White Tire Co., 231 S.C. 84, 95, 97 S.E. (2d) 403, 409 (1956). The reasonableness of a party’s actions to mitigate damages is a question of fact which cannot be decided as a matter of law when there is conflicting evidence. McClary v. Massey Ferguson, Inc., 291 S.C. 506, 511, 354 S.E. (2d) 405, 408 (Ct. App. 1987).

Security Federal argues that it was justified in refusing Reynolds’ tender because it did not want to jeopardize its rights to declare a default, accelerate, and fore-

close through Campbell’s assertion of waiver, and that the exercise of its right to collect the rents directly from the tenants and to appoint the receiver were found by the master to be reasonable and not a failure to mitigate. A mortgagee can be held to have waived his right to accelerate a note upon default by accepting payments after default. Caulder v. Lewis, 287 S.C. 372, 374, 338 S.E. (2d) 837, 838 (1986). Campbell argues that Security Federal was not justified in refusing the tender because both the mortgage and assignment of rents state that Security Federal’s acceptance of payment would not constitute a waiver or default of the right to accelerate. Security Federal asserts that it was unnecessary for the master to determine whether a waiver defense would have been successful because under both the note and guaranty, it was within its rights to refuse payment to avoid such a claim.

Our review of the record establishes that the master erred by suggesting that Security Federal owed Campbell a duty to mitigate.4 See 22 Am. Jur. (2d) Damages § 506 (1988) (there is no obligation to minimize avoidable damages where a party has a vested right to recover the full amount sought). Both the note and guaranty provide remedies to Security Federal at default. Under the note, Security Federal is permitted to enforce the note in its full amount against any party to the note or guaranty.

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Bluebook (online)
429 S.E.2d 847, 311 S.C. 499, 1993 S.C. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cisson-construction-inc-v-reynolds-associates-inc-scctapp-1993.