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South Carolina
JUDICIAL DEPARTMENT
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2011-10-28-03

STATE OF SOUTH CAROLINA

COUNTY OF CHARLESTON

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IN THE COURT OF COMMON PLEAS

NINTH JUDICIAL CIRCUIT

SKYWAVES I CORPORATION,

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-10-7516

ORDER GRANTING BRANCH
BANKING AND TRUST COMPANY OF
SC, a/k/a BB&T
S PARTIAL MOTION
TO DISMISS AMENDED COMPLAINT
AND JAMES EDAHL
S MOTION TO
DISMISS AMENDED COMPLAINT
WITH PREJUDICE

This matter came before the Court on August 15, 2011, on the Partial Motion 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 the Motion to Dismiss of Defendant James Edahl (“Edahl”).  Plaintiff 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 Defendant BB&T’s Partial Motion to Dismiss with prejudice and Defendant Edahl’s Motion to Dismiss with prejudice.

I. FACTS

This is a lender liability case in which Plaintiff Skywaves I Corporation (“Plaintiff” or “Skywaves”) alleges that BB&T failed to fund its financing needs.  Defendant BB&T is a banking institution with a branch 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 written 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.  Plaintiff alleges that in 2007 Defendant Edahl made certain representations to Skywaves that BB&T promised to fund Skywaves’ current and future financial needs and ultimately to help the company go public.  Plaintiff further alleges that its agreement with BB&T was amended via e-mails and other written correspondence to reflect changes in the operation of their financial arrangement.    

In January of 2008, BB&T declared a default by Plaintiff under the factoring agreement.  Plaintiff contends the default was improper for a number of reasons, including that BB&T, acting through Defendant Edahl, promised to provide capital funding for all of Skywaves’ financial needs.  Plaintiff claims the improper default caused it to go into bankruptcy.  Plaintiff is currently in bankruptcy and received an Order from the Bankruptcy Court to file this lawsuit against Defendants.         

Plaintiff has asserted four claims against BB&T and Edahl for:  (1) negligent misrepresentation; (2) fraudulent misrepresentation; (3) negligence; and (4) violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”).  Plaintiff has asserted an additional four causes of action against BB&T for:  (5) breach of contract; (6) breach of contract accompanied by fraudulent acts; (7) promissory estoppel; and (8) breach of the covenant of good faith and fair dealing.  Defendant Edahl moved to dismiss all of the claims against him.  Defendant BB&T filed a partial motion to dismiss five of Plaintiff’s claims, for negligent misrepresentation; fraudulent misrepresentation; negligence; violation of the SCUTPA and breach of contract accompanied by a fraudulent act.

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). 

As demonstrated below, there is no possibility that Plaintiff can establish its four claims for negligent misrepresentation, fraudulent misrepresentation, negligence or violation of the South Carolina Unfair Trade Practices Act against BB&T or Edahl, as a matter of law.  Moreover, Plaintiff has failed to plead sufficient facts to constitute a cause of action against BB&T for breach of contract accompanied by a fraudulent act.    

A. Plaintiff Fails to Allege Any Conduct on the Part of BB&T That Would Support its Claim for Breach of Contract Accompanied by a Fraudulent Act.

Plaintiff’s claim for breach of contract accompanied by a fraudulent act fails as a matter of law because Plaintiff does not allege any fraudulent act or conduct on the part of BB&T —  necessary components of a claim for breach of contract accompanied by fraudulent acts.  Rule 9(b) of the South Carolina Rules of Civil Procedure provides that a party alleging fraud must do so with particularity.  S.C. R. Civ. P. 9(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”). 

Plaintiff makes general allegations that BB&T’s actions were characterized by dishonesty in fact and unfair dealing with respect to Plaintiff’s plan to transition from BB&T to another lender and BB&T’s decision to cease funding, but Plaintiff fails to plead any specific fraudulent act or conduct on the part of BB&T with regard to this claim and has not pled fraud with the particularity required by Rule 9(b).  Accordingly, Plaintiff’s claim against BB&T for breach of contract accompanied by a fraudulent act is dismissed.

B. Plaintiff Cannot Sustain a Claim Against Either Defendant for Negligent Misrepresentation or Fraudulent Misrepresentation.

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

1. 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)).

Plaintiff has not alleged any legally viable false representation of a present or pre-existing fact made to the Plaintiff.  Plaintiff has only alluded to alleged false representations by Defendants regarding the promise of future funding which the Court finds, at best, amount to general salesmanship that does not give rise to a cause of action for negligent or fraudulent misrepresentations.  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. 

Plaintiff contends 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 Plaintiff.  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, Plaintiff’s own allegations and arguments are that BB&T performed under the alleged modified agreement for some period of time, which is inconsistent with an intention not to fulfill a promise.  In its Amended Complaint, Plaintiff alleges a variety of representations by Defendants in 2005, 2006 and 2007, during which time Plaintiff alleges it continued its relationship with BB&T, and that the relationship continued at least until January of 2008.  Under these circumstances, the allegations of Plaintiff’s Amended Complaint 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).  When there is no fiduciary relationship between the parties and the situation involves an arm’s length transaction between mature, educated parties, there is no right to rely.  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 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 (S.C. Ct. App. 1994, rev’d in part on other grounds, 459 S.E.2d 307 (S.C. 1995).  Moreover, as a general rule, officers of corporations, in their capacities as such, do not owe any individual fiduciary duties to a plaintiff.  See Burwell v. S.C. Nat'l Bank, 288 S.C. 34, 40–41, 340 S.E.2d 786, 790. 

South Carolina law considers the normal relationship between a bank and its customer to be one of creditor-debtor and not one that is fiduciary in nature. See Burwell, 288 S.C. at 40, 340 S.E.2d at 790; 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).  Although Plaintiff has alleged a certain amount of customization that went into BB&T’s product for Plaintiff, it has not alleged any specific facts that would change the standard creditor-debtor framework and create a fiduciary relationship.  Accordingly, as a matter of law, Plaintiff cannot, as a sophisticated, mature party, establish that it had a right to rely on any alleged false statements by BB&T or Edahl.    

C. Plaintiff Has Not Stated a Claim Against Either Defendant for Negligence.

Additionally, Plaintiff cannot establish its claim for negligence against BB&T or Edahl.  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 or breached any duty to Plaintiff. 

Plaintiff alleges 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 or other duty of care to Skywaves.”  However, Plaintiff cannot unilaterally manufacture a duty by BB&T where none exists.  “Duty 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.

As noted above, South Carolina views the normal relationship between a bank and its customer as one of creditor-debtor and not one that is fiduciary in nature. See Burwell, supra; Owens, supra; Johnson, supra.   Again, Plaintiff has not alleged facts sufficient to expand the normal debtor-creditor relationship into one that was fiduciary in nature.  Given the normal relationship of a bank and its customer and the lack of any other circumstance creating an affirmative duty, Plaintiff cannot show that BB&T or Edahl had any duty to breach. 

D. Plaintiff Has Not Stated a Claim Against Either Defendant for Violation of the South Carolina Unfair Trade Practices Act.

Plaintiff has not pled sufficient allegations against Defendants to state a claim for violation of the SCUTPA.  To be actionable under SCUTPA, the alleged 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, Plaintiff merely offers 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 Complaint 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 Complaint alleges, 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 SCUTPA because business relationships that affect only the parties to the complained-of transaction are not actionable under SCUTPA.  See Noack Enterprises, Inc. 351 S.E.2d at 349–50. 

Although not delineated as a breach of contract claim, Plaintiff’s claim is premised upon the breach of an alleged agreement between BB&T and Skywaves to fund the financing needs of Skywaves.  However, even “[a] deliberate or intentional breach of a valid contract, without more, does not constitute a violation of SCUTPA.  Otherwise, every intentional breach of a contract within a commercial setting would constitute an unfair trade practice and thereby subject the breaching party to treble damages.”  Ardis v. Cox, 431 S.E. 2d 267, 271 (S.C. Ct.App. 1993).           

III. CONCLUSION

For the reasons set forth herein, it is hereby ORDERED that Defendant Edahl’s Motion to Dismiss is GRANTED and all claims against him are dismissed with prejudice; and it is further ORDERED that Defendant BB&T’s Partial Motion to Dismiss is GRANTED with prejudice such that the only remaining claims in this case are Plaintiff’s claims against BB&T for breach of contract, promissory estoppel and breach of the covenant of good faith and fair dealing. 

IT IS SO ORDERED.

 

___________________________________________
The Honorable Roger M. Young



October 28, 2011
Charleston, South Carolina