Coastalstates Bank v. Hanover Homes of South Carolina, LLC

759 S.E.2d 152, 408 S.C. 510
CourtCourt of Appeals of South Carolina
DecidedMarch 26, 2014
DocketAppellate Case No. 2012-213154; No. 5211
StatusPublished
Cited by9 cases

This text of 759 S.E.2d 152 (Coastalstates Bank v. Hanover Homes of South Carolina, LLC) 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
Coastalstates Bank v. Hanover Homes of South Carolina, LLC, 759 S.E.2d 152, 408 S.C. 510 (S.C. Ct. App. 2014).

Opinion

SHORT, J.

This is an appeal from an order granting partial summary judgment to CoastalStates Bank (the Bank) in its breach of contract action against Hanover Homes of South Carolina, LLC, Hanover Homes, Inc., and George Cosman. Cosman appeals, arguing the trial court erred in: (1) finding the statute of limitations had not expired; (2) finding personal guaranties were controlling; and (3) granting the Bank summary judgment while also finding a genuine issue of material fact existed as to Cosman’s defenses to the Bank’s breach of [513]*513contract claim. We affirm in part, reverse in part, and remand.

BACKGROUND FACTS

Cosman, a residential builder, entered into a series of business deals with Phillip Petrozzelli in 2007. Cosman and Petrozzelli formed the company, Hanover Homes of South Carolina, LLC (Borrower) to pursue real estate development. Petrozzelli was the managing partner of Borrower and was the “point man” for the Traditions, a development in Jasper County. According to Cosman, Petrozzelli had a previous longstanding relationship with the Bank and with a bank employee, Buzzy Lawson. Cosman explained his role was to “watch over the construction of [the two model homes]” at Traditions and to oversee the Borrower’s other development.

On July 19, 2007, the Bank made three loans totaling $3,632 million to Borrower as follows:

Loan 203611 $2.6 million to purchase 21 vacant lots in the Traditions, a community in Jasper, South Carolina

Loan 203613 $520,000 to construct a model home

Loan 203583 $512,000 to construct a second model home

Cosman and Petrozzelli each signed a personal guaranty to secure each loan. The guaranties provided the following:

1. Agreement to Guaranty. For value received, ... [the Guarantor] ... absolutely and unconditionally guaranties ... the payment ... of: (a) all liabilities and obligations of the Borrower to the Bank____The liability of the Guarantor shall be joint and several for the payment in full of the entire amount of the Guarantied Obligations with that of the Borrower ... or any other guarantor.
2. Absolute and Unconditional Guaranty; Waiver of Defenses. This Guaranty is an absolute and unconditional guaranty of payment---- This Guaranty creates a direct and primary obligation of the Guarantor to the Bank without regard to any other guarantor or obligor to the Bank or the value of any security or collateral held by the Bank.... [T]he Guarantor’s obligations hereunder may be enforced with or without joinder of the Borrower or any other guarantor and -without proceeding against the Borrower, any other guarantor or against any collateral held by the Bank. Guarantor expressly waives, to the fullest extent [514]*514permitted by applicable law, each and every defense which under principles of guaranty or suretyship would otherwise operate to impair or diminish the Guarantor’s direct and primary liability.... Guarantor acknowledges and understands that nothing except the full and final payment ... shall release and discharge the Guarantor from his obligations and liability hereunder.

Section 2(a) provided the following:

Guarantor agrees that the Bank may take ... the following actions without diminishing, impairing, limiting or abridging the Guarantor’s obligations hereunder, and the Guarantor expressly waives any defense ... arising out of any of the following actions taken by the Bank, whether with or without notice to, or consent by, the Guarantor: ... (iii) any release or discharge by the Bank of the Borrower, or any ... other guarantor; ... (v) any settlement made with ... the Borrower, or ... any other guarantor.
3. Waiver of Notices; Additional Waivers. Guarantor expressly waives, to the fullest extent permitted by applicable law, each and every notice to which it would otherwise be entitled under principles of guaranty or suretyship law.... including but not limited to: ... notice of any default or nonpayment ... by the Borrower[,] notice of the obtaining or release of any guaranty or surety agreements and] notice of nonpayment.

By the end of 2008, Borrower was experiencing financial difficulty. The notes were renewed on October 28, 2009. Thereafter, Cosman alleges he negotiated for both he and Petrozzelli to be released on loans for the other property they developed. As to the Traditions property at issue in this case, Borrower made three short sales to third parties with the Bank’s consent and applied the proceeds to the loan balances. The first short sale, one of the model homes, was made in September 2010, and the Bank netted just over $220,000.

Unbeknownst to Cosman, the Bank entered into an agreement (the Agreement) with Borrower and Petrozzelli on October 22, 2010. The Agreement released Borrower and Petrozzelli from liability under the loans and guaranties in exchange for cooperation with any further sales of the property. The Agreement also provided the following:

[515]*515No Release of Other Guarantors. Lender does not release or discharge any obligations, liabilities or guaranties of any other guarantor of the Notes and nothing provided for in this Agreement shall be construed as a waiver of any of Lender’s rights and remedies with regard to any other guarantor of the Notes.

The second model home was then sold as a short sale in April 2011, and the Bank netted approximately $181,000. In October 2011, a short sale of the 21 lots netted the Bank approximately $604,000.

The Bank filed this action against Cosman on the guaranties. In his answer and counterclaim, Cosman alleged, inter alia, a conspiracy between the Bank and Petrozzelli and breach of contract accompanied by a fraudulent act.1 Cosman also raised numerous defenses, including the expiration of the statute of limitations and Bank’s discharge of Borrower’s liability under the notes.

On August 10, 2012, and September 7, 2012, the trial court held hearings on the parties’ cross-motions for summary judgment. At the time of the hearings, the Bank claimed a balance due on the notes of $3,299 million. The trial court: (1) dismissed Cosman’s statute of limitations defense; (2) granted the Bank partial summary judgment, finding the release by the Bank of Borrower and Petrozzelli did not result in the release or discharge of Cosman under the three guaranties; (3) denied the Bank’s motions for summary judgment as to Cosman’s breach of contract accompanied by a fraudulent act and conspiracy causes of action; (4) granted judgment to the Bank for $3,299,665.51; and (5) awarded reasonable attorney fees and costs to be determined at a subsequent hearing. This appeal follows.

[516]*516STANDARD OF REVIEW

On appeal from the grant of a summary judgment motion, this court applies the same standard as that required for the circuit court under Rule 56(c), SCRCP. Brockbank v. Best Capital Corp., 341 S.C. 372, 379, 534 S.E.2d 688, 692 (2000). “ ‘Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Adamson v. Richland Cnty. Sch. Dist. One, 332 S.C. 121, 124, 503 S.E.2d 752

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Cite This Page — Counsel Stack

Bluebook (online)
759 S.E.2d 152, 408 S.C. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coastalstates-bank-v-hanover-homes-of-south-carolina-llc-scctapp-2014.