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South Carolina
JUDICIAL DEPARTMENT
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2011-10-28-02

STATE OF SOUTH CAROLINA

COUNTY OF CHARLESTON

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IN THE COURT OF COMMON PLEAS

NINTH JUDICIAL CIRCUIT

JAMES J. KERR, CRAYTON WALTERS, and J.T. MAIN, LLC,

Plaintiffs,

vs.

BRANCH BANKING AND TRUST COMPANY, Successor in merger to BRANCH BANKING AND TRUST COMPANY OF SC, a/k/a BB&T, and JAMES EDAHL,

Defendants.

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Civil Action No. 2009-CP-10-07515

 

ORDER GRANTING DEFENDANTS
MOTIONS TO DISMISS AMENDED
COMPLAINT WITH PREJUDICE

RON KONERSMANN,

Plaintiff,

vs.

BRANCH BANKING AND TRUST COMPANY, successor in merger to BRANCH BANKING AND TRUST COMPANY OF SC, a/k/a BB&T, and JAMES EDAHL,

Defendants.

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Civil Action No. 2009-CP-10-7517

JOHN VOYTKO,

Plaintiffs,

vs.

BRANCH BANKING AND TRUST COMPANY, successor in merger to BRANCH BANKING AND TRUST COMPANY OF SC, a/k/a BB&T, and JAMES EDAHL,

Defendants.

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Civil Action No. 2009-CP-10-7518

This matter came before the Court on August 15, 2011, on the Motions to Dismiss of Defendant Branch Banking and Trust Company, successor in merger to Branch Banking and Trust Company of SC, a/k/a BB&T (“BB&T”) and Defendant James Edahl (“Edahl”).  Plaintiffs and Defendants were represented by counsel at the hearing, and the Court fully considered all evidence presented and the arguments of counsel.  For the reasons that follow, the Court grants Defendants’ Motions to Dismiss with prejudice.

I. FACTS

This is a lender liability case in which Plaintiffs in each of the three captioned cases allege that Defendant BB&T failed to fund the financing needs of Skywaves Corporation I (“Skywaves”), a company in which each Plaintiff was an investor.  Plaintiffs John Voytko and Ron Konersmann were also officers in Skywaves.     

Plaintiffs’ allegations do not pertain to any alleged relationship they had with BB&T  but, instead, to the relationship between BB&T and Skywaves.  Defendant BB&T is a banking institution with branch offices in Charleston, South Carolina, and Defendant Edahl is one of its employees.  Skywaves is a company that developed a structural product, specifically cell tower units, for use in the wireless telecommunications industry.  To support the manufacture of these individual cell tower units, Skywaves entered into a certain factoring agreement with BB&T in the Spring of 2005 whereby BB&T would purchase certain receivables of Skywaves at a discount and payment of those receivables would then be made to BB&T.   

In January of 2008, BB&T declared a default by Skywaves under the factoring agreement.  Plaintiffs contend the default was improper, as BB&T, acting through its employee Defendant Edahl, promised that BB&T “would fund all [Skywaves’] financial needs.”  Plaintiffs claim the improper default caused Skywaves to go into bankruptcy and resulted in the loss of their investment in Skywaves and the loss of the salaries for Plaintiffs Voytko and Konersmann.

Plaintiffs are not customers of BB&T.  BB&T did not lend any money to Plaintiffs.  Plaintiffs are not debtors in this case.  Plaintiffs had no direct relationship with BB&T whatsoever.  All of Plaintiffs’ allegations pertain to the relationship between Skywaves and BB&T, and all of Plaintiffs’ alleged injuries arise out of Skywaves’ bankruptcy filing.  Plaintiffs have filed proofs of claim against Skywaves in the bankruptcy proceeding.

In their Amended Complaints, Plaintiffs assert four claims for: (1) negligent misrepresentation; (2) fraudulent misrepresentation; (3) negligence; and (4) violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”).[1]  Defendants moved to dismiss all four claims pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure. 

II. LEGAL ANALYSIS

South Carolina Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a claim for failure to state facts sufficient to constitute a cause of action.  S.C. R. Civ. P. 12(b)(6); Flateau v. Harrelson, 355 S.C. 197, 201, 584 S.E.2d 413, 415 (2003).  The question is whether the pleadings, taken in the light most favorable to the plaintiff, articulate a valid claim for relief.  Williams v. Condon, 347 S.C. 227, 233, 553 S.E.2d 496, 499 (Ct. App. 2001).  A Rule 12(b)(6) motion “must be granted if the facts and the inferences reasonably deducible from them show that the plaintiff could not prevail on any theory of the case.”  Gray v. State Farm Auto Ins. Co., 327 S.C. 646, 651, 491 S.E.2d 272, 275 (1997).  The Court dismisses these cases because there is no possibility that Plaintiffs will be able to establish liability on the part of either Defendant  under any of the claims as alleged in the Amended Complaints. 

A. Section 37-10-107 of the South Carolina Code Bars All of the Plaintiffs’ Claims Against Defendants.

All of Plaintiffs’ claims against Defendants are statutorily barred, as a matter of law.  Many states, including South Carolina, have enacted specialized statutes concerning loan and credit agreements.  These statutes bar enforcement of oral lending agreements and bar fraud and other tort claims based on alleged oral misrepresentations and other non-written conduct concerning these loan agreements.  See S.C. Code § 37-10-107.     

Specifically, section 37-10-107 of the South Carolina Code Annotated provides:

(1)        No person may maintain an action for legal or equitable relief or a defense based upon a failure to perform an alleged promise, undertaking, accepted offer, commitment, or agreement:

(a)        to lend or borrow money;

(b)        to defer or forbear in the repayment of money; or

(c)        to renew, modify, amend, or cancel a loan of money or any provision with respect to a loan of money, involving in any such case a principal amount in excess of fifty thousand dollars, unless the party seeking to maintain the action or defense 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.

(2)        Failure to comply with subsection (1) precludes an action or defense based on any of the following legal or equitable theories:

(a)        an implied agreement based on course of dealing or performance or on a fiduciary relationship;

(b)        promissory or equitable estoppel;

(c)        part performance, except to the extent that the part performance may be explained only by reference to the alleged promise, undertaking, accepted offer, commitment, or agreement; or

(d)       negligent misrepresentation.

S.C. Code Ann. § 37-10-107.

All of Plaintiffs’ claims are all based upon alleged statements, promises, or representations made by BB&T or Edahl to Skywaves that BB&T “would fund all [Skywaves’] financial needs.”  Each of the claims is based upon alleged representations made by Defendants to Skywaves. 

Plaintiffs make general reference to representations made “in writing;” but Plaintiffs have not alleged any material terms or conditions of any agreement with Defendants nor have Plaintiffs specifically alleged that any such agreement was in fact received by them.  Plaintiffs have made a number of allegations regarding writings purportedly between BB&T and Skywaves, but Plaintiffs, although investors in Skywaves, cannot rely on such writings to defeat the plain wording of Section 37-10-107 which, as stated above, requires in pertinent part that “the party seeking to maintain the action or defense [receive] a writing from the party to be charged…”  S.C. Code Ann. § 37-10-107(1)(c).

Because Plaintiffs have not alleged or otherwise provided anything in writing to evidence the material terms and conditions of the alleged promises or representations made to them, their claims fail as a matter of law.  See Carolina First Bank v. Lucas, Case No. 03-CP-10-1907, 2004 WL 5208410 (S.C. Com. Pl. Jun. 14, 2004);  see also Robertson v. First Union Nat’l Bank, Case No. 99-CP-10-288, 2000 WL 35722762 (S.C. Com. Pl. Aug. 8, 2000).  Specifically, Plaintiffs have not alleged that they “received a writing from the party to be charged [i.e. BB&T] 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.”  S.C. Code Ann. § 37-10-107(1)(c).  Accordingly, as a matter of law, Plaintiffs cannot “maintain an action for legal  . . . relief  . . . based upon [BB&T’s or Edahl’s alleged] failure to lend  . . . money [to Skywaves.]”  S.C. Code Ann. § 37-10-107(1)(a).  Under these circumstances, Plaintiffs cannot establish their claims against Defendants, as a matter of law. 

1. The Choice of Law Provision in the Security and Factoring Agreement Between Skywaves and BB&T Does Not Apply to Plaintiffs’ Claims Against Defendants.

Plaintiffs contend that S.C. Code Ann. § 37-10-107 does not apply to the tort claims they have asserted against Defendants.  In support of their argument, Plaintiffs cite to a provision in the Factoring and Security Agreement (“Agreement”) between Skywaves and BB&T that the Agreement is governed by North Carolina law.  Plaintiffs are not parties to the Agreement and, thus, any choice of law provisions contained therein do not apply in these cases.  Moreover, the relevant provision in the Agreement pertains to claims arising “under” the Agreement.   In the case at hand, Plaintiffs are contending that an agreement existed outside of the Agreement, and that certain promises were made by Defendants outside the Agreement regarding funding of Skywaves.  Under the circumstances, there is no basis for Plaintiffs to rely upon a choice of law provision in a contract to which they were not parties.  South Carolina law governs Plaintiffs’ claims against Defendants and dictates that the claims be dismissed, as a matter of law. 

2. Plaintiffs’ Allegations and Claims Arise from an Alleged Failure to Loan Money Such that Section 37-10-107 Applies.

Plaintiffs also contend that because the relationship between BB&T and Skywaves was pursuant to a factoring agreement, it was not a “typical” loan transaction and that S.C. Code Ann. § 37-10-107 does not apply.  Plaintiffs ignore, however, that the very allegations in their Amended Complaints, to wit, that the factoring agreement was modified by BB&T such that BB&T agreed to loan money to Skywaves.  Specifically, Plaintiffs allege there was no “need for Skywaves to either invoice or manufacture the product.  In this way, BB&T agreed to advance the costs of manufacturing.”  Moreover, although Plaintiffs attempt to characterize a factoring agreement as an atypical loan transaction, a key purpose of the statute is to protect financial institutions and other lenders from claims that are inconsistent with the written agreements outlining the terms of the transaction.  Because the statutes within Title 37 should “be liberally construed and applied to promote [Title 37’s] underlying purposes and policies,” any question regarding the applicability of section 37-10-107 to the alleged agreement in the Amended Complaint is resolved in Defendant’s favor.  See S.C. Code Ann. § 37-10-102(1).

3. Section 37-10-107 Bars Fraud Claims.

Plaintiffs contend that because section 37-10-107 does not expressly exclude a claim for fraud, their fraud claims are not barred.  To that end, Plaintiffs focus on subsection 2(d) of the statute, which bars any action based on “negligent misrepresentation.”  Plaintiffs argue that because the drafters of the statute specifically singled out actions based on “negligent misrepresentation,” but not “intentional misrepresentation,” an action based on fraud would not be precluded by the statute.  However, South Carolina state and federal trial courts have found that fraud claims are barred by section 37-10-107.  See e.g. Lands Inn, Inc. v. Branch Banking and Trust Company of South Carolina, C.A. No. 2:98-158-23 (S.C. Com. Pl. April 12, 1999) (citing Derrick v. Branch Banking and Trust Company of South Carolina, 96-CP-42-2095 (S.C.Ct.Cm. P. 9/8/98)).  This Court agrees and finds that section 37-10-107 bars Plaintiffs’ fraud, negligence and unfair trade practices claims.

4. Section 32-3-10(5) Does Not Apply to the Alleged Agreement in the Amended Complaint and Is Not Inconsistent with Section 37-10-107.

 Section 37-10-107 provides that “in the event of a conflict between this section and any other provision of law of this State relating to the requirements of a signed writing, the provisions of the other provision of law shall control.”  S.C. Code § 37-10-107(4).  According to Plaintiffs, S.C. Code § 32-3-10(5), which is a more general statute of frauds, “may” be applicable to the dispute and, thus, creates a conflict with section 37-10-107 such that section 32-3-10(5) applies. 

Even if section 32-3-10(5) somehow applies in this case, it is not inconsistent with section 37-10-107.  The two statutes can be read and construed together.  In South Carolina, “[i]f the provisions of the two statutes can be construed so that both can stand, this Court will so construe them.”  In the Interest of Shaw, 265 S.E.2d 522, 524 (S.C. 1980) (citing City of Spartanburg v. Blalock, 223 S.C. 252, 75 S.E.2d 361 (1953)).   Further, “where there is one statute addressing an issue in general terms and another statute dealing with the identical issue in a more specific and definite manner, the more specific statute will be considered an exception to, or a qualifier of, the general statute and given such effect.”  Wilder v. South Carolina Hwy. Dep't, 90 S.E.2d 635 (S.C. 1955); see also Ramsey v. County of McCormick, 412 S.E.2d 408, 410 (S.C. 1991).  As the more specific statute on this issue, S.C. Code § 37-10-107 is to be considered a qualifier of section 32-3-10(5).

B. Plaintiffs Fail to Allege Any Conduct on the Part of Either Defendant That Would Support Their Claims.

Notwithstanding that all of Plaintiffs’ claims are barred under S.C. Code Ann. § 37-10-107, this Court alternatively dismisses the claims because Plaintiffs’ allegations are insufficient to state a claim for negligent misrepresentation, fraudulent inducement, negligence or lender liability.

1. Plaintiffs cannot sustain a claim against either Defendant for negligent misrepresentation or fraudulent inducement.

Plaintiffs’ claims for negligent misrepresentation and fraudulent misrepresentation both fail as a matter of law because Plaintiffs have not alleged a legally viable false statement or any fact that would tend to create a right for them to rely on any alleged misrepresentation by BB&T or Edahl. 

a. No False Statement

Negligent misrepresentation is predicated upon the transmission of a negligently made false statement.  See Armstrong v. Collins, 366 S.C. 204, 220, 621 S.E.2d 368, 376 (Ct. App. 2005); Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 407, 581 S.E.2d 161, 166 (2003); Robertson v. First Union Nat’l Bank, 350 S.C. 339, 349, 565 S.E.2d 309, 315 (Ct. App. 2002); Brown v. Stewart, 348 S.C. 33, 42, 557 S.E.2d 676, 680–81 (Ct. App. 2001); West v. Gladney, 341 S.C. 127, 134, 533 S.E.2d 334, 337 (Ct. App. 2000).   Like negligent misrepresentation, an actionable fraudulent misrepresentation case requires there first be a false representation predicated upon misstatements of fact rather than upon expression of opinion, intent, or confidence that the deal would be satisfactory.  See Bishop Logging Co. v. John Deere Indus. Equip. Co., 317 S.C. 520, 526–27, 455 S.E.2d 183, 187 (Ct. App. 1995) (finding statements by equipment seller concerning expected performance of logging system were opinions as to future performance and could not be basis for claim of fraud).

More specifically, the alleged false representation must be of a present or pre-existing fact.  See Spires v. Acceleration Nat’l Ins. Co., 417 F. Supp. 2d 750, 755-56 (D.S.C. 2006) (applying South Carolina law).  The negligent representation cannot be based on unfulfilled promises or statements as to future events.  See Fields v. Melrose Ltd. P’ship, 312 S.C. 102, 105, 439 S.E.2d 283, 285 (Ct. App. 1993).  In addition, an integral component of this element is that the representation be false at the time it is made.  See GSM Dealer Servs., Inc. v. Chrysler Corp., 32 F.3d 139, 142 (4th Cir. 1994) (applying South Carolina law).  With respect to fraudulent misrepresentation, “the fraudulent representation must relate to a present or pre-existing fact and it cannot ordinarily be based upon an unfulfilled promise to perform in the future or statements as to future events.”  Id. (quoting Emerson v. Powell, 283 S.C. 293, 296, 321 S.E.2d 629, 631 (Ct. App. 1984)).

Plaintiffs have only alluded to alleged false representations by Defendants regarding the promise of future funding of Skywaves which the Court finds, at best, amount to general salesmanship that does not give rise to a cause of action for negligent or fraudulent misrepresentation.  The alleged representations do not relate to present or pre-existing facts and therefore cannot, as a matter of law, satisfy the requirements for a claim for negligent misrepresentation or fraudulent misrepresentation. 

Plaintiffs contend that a promise of future funding is actionable if Defendants had no intention of fulfilling the promise at the time it was made and only made it to induce the performance of Plaintiffs.  See Parker v. Shecut, 340 S.C. 460, 482, 531 S.E.2d 546, 558 (Ct. App. 2000), rev’d on other grounds, 349 S.D. 226, 562 S.E.2d 620 (2002).  Although generally true, Plaintiffs’ own allegations and arguments are that BB&T performed under the alleged modified agreement with Skywaves for some period of time, which is inconsistent with an intention not to fulfill a promise.  In the Amended Complaints, Plaintiffs allege a variety of representations by Defendants to Skywaves in 2005, 2006 and 2007, during which time Plaintiffs allege Skywaves continued its relationship with BB&T, and that the relationship continued at least until January of 2008.  Under these circumstances, the allegations of the Amended Complaints do not give rise to a legally actionable false statement sufficient to support a claim for negligent or fraudulent misrepresentation.    

2. No Right to Rely

In addition to showing that a false representation was made, a plaintiff must also show that it had a right to rely on such representation in order to pursue a claim for either negligent misrepresentation or fraudulent misrepresentation.  See GSM Dealer Servs., Inc. v. Chrysler Corp., 32 F.3d 139, 142 (4th Cir. 1994) (applying South Carolina law). 

Plaintiffs did not have a right to rely on any such statements because Plaintiffs did not have a fiduciary relationship with Defendants.  When there is no fiduciary relationship between the parties and the situation involves an arm’s length transaction between mature, educated parties, as is the case here, there is no right to rely.  Lands Inn, Inc., supra. (citing Florentine Corp. v. PEDA I., Inc., 339 S.E.2d 112, 114 (S.C. 1985)); see also First Savings Bank, FSB v. Capital Investors, Inc., 450 S.E.2d 83 (Ct. App. 1994), rev’d in part on other grounds, 459 S.E.2d 307 (S.C. 1995). 

Plaintiffs have made a general allegation as to their alleged reliance on BB&T in making their investments in Skywaves, but there are no allegations as to any fiduciary relationship between Defendants and them.  Instead, as the bulk of Plaintiffs’ allegations reflect, the relationship at issue is the one between BB&T and Skywaves, as creditor-debtor.  Plaintiffs have not alleged any specific facts that would create a fiduciary relationship between them, BB&T or Edahl.  Accordingly, Plaintiffs have not pled sufficient allegations to establish any right to rely by them, who were not customers of BB&T but, instead, investors in a customer of BB&T.  Plaintiffs, as sophisticated, mature parties, have not sufficiently pled and cannot establish that any of them had a right to rely on any alleged false statements by BB&T or Edahl.    

2. Plaintiffs cannot sustain a claim against either Defendant for negligence or lender liability.

Additionally, Plaintiffs cannot establish their claim for negligence or lender liability against either Defendant.  To prove a claim for negligence, a plaintiff must establish a duty of care, a breach of that duty and damages proximately caused by the breach.  McKnight v. South Carolina Dept. of Corrections, 684 S.E.2d 566, 569 (S.C.Ct.App.2009).  In this case, neither Defendant had any duty to Plaintiffs.

Plaintiffs allege that “BB&T had a unique power and influence over the day-to-day operations of Skywaves and gave rise to a special relationship with the parties. . . whereby Defendants had a fiduciary duty to Plaintiffs.”  Plaintiffs further contend that Defendants were in breach of “the special trust and relationship established with the Plaintiffs”.  However, Plaintiffs cannot manufacture an alleged duty on behalf of either Defendant.  Instead, “[d]uty is generally defined as the obligation to conform to a particular standard of conduct toward another.” Murray v. Bank of America, N.A., 354 S.C. 337, 343, 580 S.E.2d 194, 197 (Ct. App. 2003).  “Ordinarily, the common law imposes no duty on a person to act.” Id. “An affirmative legal duty to act exists if created by statute, contract, relationship, status, property interest, or some other special circumstance.” Id.    In this case, Defendants did not have any duty to Plaintiffs.

In support of their argument, Plaintiffs contend that a duty of care flows from a bank to its customer.  This argument is flawed in part because the relationship between a bank and its customer is generally not fiduciary in nature.  See Burwell v. S.C. Nat'l Bank, 288 S.C. 34, 40, 340 S.E.2d 786, 790 (1986); Owens v. Andrews Bank & Trust Co., 265 S.C. 490, 497, 220 S.E.2d 116, 119 (Ct. App.1975); Johnson v. Serv. Mgmt., Inc., 319 S.C. 165, 167–68, 459 S.E.2d 900, 902 (Ct. App.1995).   More importantly, however, Plaintiffs’ argument is fundamentally flawed in that while Skywaves may have been a customer of Defendant BB&T, Plaintiffs were not.  Defendants did not owe any duty to Plaintiffs and, therefore, Plaintiffs cannot establish their claim for negligence or lender liability.

D. Plaintiffs Cannot Sustain a Claim Against Either Defendant for Violation of the South Carolina Unfair Trade Practices Act.

Finally, Plaintiffs, as investors, have not pled sufficient allegations against Defendants to support a claim for violation of the SCUTPA.  Investor claims are generally a federally regulated arena.  “Actions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this State or the United States  . .  . ” are generally exempt from the provisions of the SCUTPA.  S.C. Code Ann. § 39-5-40(a). 

Additionally, to be actionable under the SCUTPA, the unfair or deceptive act or practice must have an impact upon the public interest.  Noack Enterprises, Inc. v. Country Corner Interiors,  351 S.E.2d 347 (S.C.Ct.App. 1986).  Here, Plaintiffs merely offer a conclusion of law that the “unfair acts and practices of Defendants have an impact on the public interest, have potential for repetition.” Absent from the Amended Complaints are any facts that would even tend to show that the supposed conduct impacted the public directly or that the conduct is otherwise capable of repetition. 

At most, the Amended Complaints allege, in sum, that Defendants promised to but then refused to fund the financing needs of Skywaves.  These allegations do not comprise “unfair or deceptive acts” that are actionable under the SCUTPA because business relationships that affect only the parties to the complained-of transaction are not actionable under the SCUTPA.  See Noack Enterprises, Inc. 351 S.E.2d at 349–50. 

III. CONCLUSION

For the reasons set forth herein, it is hereby ORDERED that Defendant BB&T’s and Defendant Edahl’s Motions to Dismiss are GRANTED and all claims against them are dismissed with prejudice. 

AND IT IS SO ORDERED.

 

___________________________________________
The Honorable Roger M. Young



October 28, 2011
Charleston, South Carolina

 


[1] Plaintiffs Kerr, Walters and J.T. Main, LLC have only asserted three claims for negligent misrepresentation, fraudulent inducement and negligence/lender liability.