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
J.D., Inc. of
Hilton Head d/b/a Hilton Head Glidden, Respondent,
v.
A-Team Surface
Technologies, Inc., Charles A. Stundzia, and Stephanie Lamb, Defendants,
of whom
Stephanie Lamb is Appellant.
Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge
Unpublished Opinion No. 2010-UP-424
Submitted September 1, 2010 Filed
September 28, 2010
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED
Michael W. Mogil, of Hilton Head Island,
for Appellant.
Russell P. Patterson, of Hilton Head
Island, for Respondent.
PER CURIAM: This appeal arises out of the
grant of summary judgment in favor of Respondent J.D., Inc. of Hilton Head
d/b/a Hilton Head Glidden (Glidden). Appellant Stephanie Lamb argues the
circuit court erred in granting summary judgment because the terms of the
contract are ambiguous, thus presenting an issue of fact to be resolved at
trial.[1]
FACTS/PROCEDURAL HISTORY
Glidden entered into a credit
and sales agreement with A-Team Surface Technologies, Inc. (A-Team), a business
owned by Lamb's ex-husband, Charles Stundzia. The agreement provided for a
$5,000 requested credit limit, with the balance due by the tenth of the month
for a two percent discount and due within thirty days of billing to prevent
default. Any unpaid portion of the balance after thirty days would be subject
to a 1.5% service charge. The agreement also provided for the payment of
reasonable attorney's fees, consisting of fifteen percent of the balance due,
plus all costs. Finally, the agreement contained the following provision:
"Customer will be notified by Glidden if Customer is approved for credit
and at what credit limit. Glidden expressly reserves the right, at any time,
for any reason, to cancel the right to purchase on credit in the future."
Underneath the signature line
in the credit and sales agreement is a personal guarantee signed by Stundzia
and Lamb:
PERSONAL GUARANTEE
In
consideration of the extension of credit to the above Customer, I/we personally
and individually guarantee payment of any and all future or current indebtedness,
including costs and attorney's fees on demand. This guarantee will remain in
full force and effect as to new purchases until written notice of its
termination is received by Hilton Head Glidden/Beaufort Glidden, Attn: David
Harter, 13 New Orleans Road, Hilton Head Island, South Carolina 29928.
Glidden initiated the present
action by filing a nonjury complaint to collect a debt arising out of the
account from A-Team, Stundzia, and Lamb.[2]
Lamb answered the complaint and filed counterclaims for contract termination
and contract modification. Glidden subsequently filed a motion for summary
judgment. The trial court granted summary judgment in favor of Glidden after a
hearing and awarded Glidden $13,330.58 for breach of contract, plus $6,198.71
for prejudgment interest accrued through February 1, 2008. The court also
awarded $2,929.39 in attorney's fees, which is one third of the amount awarded
in principal and interest, for a total judgment of $22,458.68. Lamb filed a motion
to alter or amend pursuant to Rule 59(e), SCRCP, which was denied. This appeal
followed.
STANDARD OF REVIEW
When reviewing the grant of a
motion for summary judgment, the appellate court applies the same standard that
governs the trial court. Wogan v. Kunze, 379 S.C. 581, 585, 666 S.E.2d
901, 903 (2008). Summary judgment is proper when no genuine issue exists as to
any material fact and the moving party is entitled to judgment as a matter of
law. Rule 56(c), SCRCP. "On appeal from an order granting summary
judgment, the appellate court will review all ambiguities, conclusions, and
inferences arising in and from the evidence in a light most favorable to the [nonmoving]
party below." USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C.
643, 653, 661 S.E.2d 791, 796 (2008). "[I]n cases applying the
preponderance of the evidence burden of proof, the [nonmoving] party is only
required to submit a mere scintilla of evidence in order to withstand a motion
for summary judgment." Hancock v. Mid-South Mgmt. Co., 381 S.C.
326, 330, 673 S.E.2d 801, 803 (2009).
LAW/ANALYSIS
The sole issue on appeal is
whether summary judgment was appropriate. Lamb asserts the existence of an
ambiguity creating a question of fact precluding summary judgment because the
credit and sales agreement secured by her personal guarantee did not provide
for the creation of debt greater than $5,000. We disagree.
As a preliminary issue, the
trial court found that Lamb signed the agreement as a personal guarantor. Lamb
argued before the trial court that she executed the credit and sales agreement
on behalf of her husband's business. However, Lamb claimed she did not
intentionally sign a personal guarantee when she printed her name on the
signature line for the credit and sales agreement and signed her name
underneath the personal guarantee section. The trial court dismissed this
argument and concluded Lamb's admission that she signed the document, which
clearly stated in bold capital letters "PERSONAL GUARANTEE," supports
her status a personal guarantor on the note. Lamb abandoned this argument on
appeal, asserting only that her personal guarantee is limited to $5,000.
"[A]n 'unchallenged ruling, right or wrong, is the law of the case and
requires affirmance.'" Jones v. Lott, 387 S.C. 339, 346, 692
S.E.2d 900, 903 (2010) (quoting First Union Nat'l Bank of S.C. v. Soden,
333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct. App. 1998)). Therefore, we affirm
the finding that Lamb is a personal guarantor of the credit and sales
agreement.
Accordingly, we next consider
whether a dispute exists as to Lamb's personal liability for any debt greater
than $5,000. Whether the language of a contract is ambiguous is a question of
law. S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C.
617, 623, 550 S.E.2d 299, 302-03 (2001). The construction of an ambiguous
contract is a question of fact. Skull Creek Club Ltd. P'ship v. Cook &
Book, Inc., 313 S.C. 283, 286, 437 S.E.2d 163, 165 (Ct. App. 1993). An
ambiguous written agreement is one that is capable of being understood in more
than one way, or is an agreement unclear in meaning because it expresses its
purpose in an indefinite manner. Klutts Resort Realty, Inc. v. Down'Round
Dev. Corp., 268 S.C. 80, 89, 232 S.E.2d 20, 25 (1977). "Where the language
of a contract is plain and capable of legal construction, that language alone
determines the instrument's force and effect." Jordan v. Sec. Group,
Inc., 311 S.C. 227, 230, 428 S.E.2d 705, 707 (1993). Summary judgment is
not proper when there is a question as to the construction of a written
contract and the contract is ambiguous because the intent of the parties cannot
be ascertained from the four corners of the agreement. HK New Plan Exch.
Prop. Owner I, LLC v. Coker, 375 S.C. 18, 23, 649 S.E.2d 181, 184 (Ct. App.
2007).
A guarantee is a contract. TranSouth
Fin. Corp. v. Cochran, 324 S.C. 290, 294, 478 S.E.2d 63, 65 (Ct. App.
1996). A note and guarantee are two separate contracts. First Sav. Bank,
FSB v. Capital Investors, 318 S.C. 555, 557, 459 S.E.2d 307, 308 (1995).
However, "[t]he general rule is that, in the absence of anything
indicating a contrary intention, where instruments are executed at the same
time, by the same parties, for the same purpose, and in the course of the same
transaction, the courts will consider and construe the instruments
together." Klutts, 268 S.C. at 88, 232 S.E.2d at 24. "Construing
contemporaneous instruments together means simply that if there are any
provisions in one instrument limiting, explaining, or otherwise affecting the
provisions of another, they will be given effect between the parties so that
the whole agreement as actually made may be effectuated." Id. at
88-89, 232 S.E.2d at 24. Conversely, when the terms of a written guarantee
agreement are clear and complete, extrinsic evidence of agreements or
understandings contemporaneous with or prior to its execution cannot be used to
contradict, explain, or vary its terms. Pee Dee State Bank v. Nat'l Fiber
Corp., 287 S.C. 640, 643, 340 S.E.2d 569, 570-71 (Ct. App. 1986).
In the present matter, the
personal guarantee provides that Lamb is individually responsible for "any
and all future or current indebtedness." The guarantee also indicates it
is "in consideration of the extension of credit to the above
Customer," referencing the credit and sales agreement that is located in
the same document, directly preceding the personal guarantee. Even though a
guarantee is considered to be a separate contract, both the credit and sales
agreement and the guarantee were executed at the same time, by the same
parties, for the same purpose, and in the course of the same transaction. See First Sav. Bank, 318 S.C. at 557, 459 S.E.2d at 308; Klutts, 268
S.C. at 88, 232 S.E.2d at 24. Further, the guarantee references the credit and
sales agreement, which supports the inference that the two documents are to be
read together.
In Pee Dee State Bank,
the court of appeals scrutinized a guarantee executed as security for an
$85,000 loan to a corporation. 287 S.C. at 641, 340 S.E.2d at 570. The loan
was secured by the personal guarantees of two of its officers. Id.
After the corporation repaid the first loan, the bank loaned another $85,000,
which was never repaid. Id. One officer contested his liability for
the second loan, claiming his personal guarantee was only for the first loan. Id. at 642, 340 S.E.2d at 570. The court found the guarantee, entitled
"UNCONDITIONAL CONTINUING PERSONAL GUARANTY" in all caps, was plain
on its face and not limited to the initial loan. Id. at 642, 340 S.E.2d
at 570.
Notwithstanding, Pee Dee
State Bank is reconcilable with the rule of construing related documents
together enunciated in Klutts, which has been cited frequently in this
state. See, e.g., Cafe Assocs. v. Gerngross, 305 S.C. 6, 10, 406
S.E.2d 162, 164 (1991); Sentry Eng'g & Constr., Inc. v. Mariner's Cay
Dev. Corp., 287 S.C. 346, 350, 338 S.E.2d 631, 633 (1985); Wilbur Smith
& Assocs. v. Nat'l Bank of S.C., 274 S.C. 296, 299, 263 S.E.2d 643, 645
(1980); Ecclesiastes Prod. Ministries v. Outparcel Assocs., 374 S.C.
483, 498-99, 649 S.E.2d 494, 502 (Ct. App. 2007). The guarantee in Pee Dee
State Bank was, by its terms, a continuing guarantee for full payment of
all debts "whether now owing or due, or which may hereafter, from time to
time, be owing or due, and howsoever heretofore or hereafter created. . .
." Pee Dee State Bank, 287 S.C. at 642, 340 S.E.2d at 570. The
court refused to consider extrinsic evidence of agreements or understandings
contemporaneous with, or prior to, its execution to explain the terms in the
guarantee because the guarantee was clear and complete on its own. Id. at 643, 340 S.E.2d at 570-71. However, as indicated, the guarantee signed by
Lamb in this case is contained within the same document as the credit and
sales agreement with the requested $5,000 credit limitation; at a
minimum, for summary judgment purposes, this fact distinguishes this case from
the unconditional guarantee found in Pee Dee State Bank in
which no such additional fact raised a question as to the intent of the
parties.
Further, although not
discussed, the indication that the guarantee in Pee Dee State Bank was
unconditional and continuing could be interpreted as a contrary intention that
the guarantee should not be considered together with the other
contemporaneously executed documents. Cf. Klutts, 268 S.C. at
88, 232 S.E.2d at 24 (construing instruments executed at the same time together
"in the absence of anything indicating a contrary intention"). In
the instant case, the personal guarantee included at the bottom of the two-page
credit and sales agreement does not contain any indication it should not be
read together with the credit and sales agreement; in fact, the guarantee
references the credit and sales agreement by referring to the above customer.
Ultimately, if the documents
are construed together, there is more than one inference that may be drawn
therefrom. Glidden views the terms of the guarantee as insuring payment of
"all future and current indebtedness." Lamb, on the other hand,
submitted an affidavit averring she read the agreement as a whole and believed
she was only guaranteeing a credit limit up to $5,000. Therefore, because at
least a mere scintilla of evidence supports Lamb's position, we reverse the
grant of summary judgment and the award of damages. See USAA Prop.
& Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008); Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803
(2009).
CONCLUSION
For the foregoing reasons, we
affirm the finding that Lamb is a personal guarantor of the credit and sales
agreement. However, we reverse the grant of summary judgment on the disputed
issue of whether Lamb's guarantee extends beyond the requested credit limit and
remand this issue for trial. Accordingly, the order of the trial court is
AFFIRMED IN PART, REVERSED
IN PART, and REMANDED.
WILLIAMS, PIEPER, and
KONDUROS, JJ., concur.
[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.
[2] A-Team and Stundzia are not parties to the present
appeal.