THE STATE OF SOUTH CAROLINA
In The Supreme Court
Brenda Wilson, Appellant,
James Moseley, James
Fayssoux, Samuel Stilwell
and Tom Bozeman, jointly
and individually, Respondents.
Appeal From Greenwood County
C. Victor Pyle, Jr., Judge
Opinion No. 24664
Heard June 6, 1996 - Filed August 4, 1997
Brenda Wilson, pro se.
Thomas H. Bozeman, of Grayson, Smith, Stodghill & Price, of
Greenville, pro se: Robin B. Stilwell, of Greenville, for
respondent Samuel Stilwell; Samuel W. Outten and Jack H. Tedards,
Jr., both of Leatherwood, Walker, Todd & Mann, of Greenville,
for respondents James Moseley and James Fayssoux.
Finney, C.J.: In this attorney malpractice action, Appellant Brenda
Wilson appeals the granting of summary judgment in favor of respondents. We
Appellant purchased real property from an individual who had acquired
the property through a tax sale in 1983. Respondent Moseley closed this purchase
for appellant. Appellant refinanced the property through Carolina Investors.
Respondent Fayssoux closed the refinancing transaction and issued a title insurance
policy. Appellant subsequently defaulted on the note and mortgage held by
Carolina Investors and the mortgage was foreclosed.
Appellant commenced this action alleging respondents committed
attorney malpractice. Respondents individually filed motions for summary
judgment. The trial judge granted the summary judgment motions in favor of each
of the respondents and appellant's complaint was dismissed with prejudice.
Appellant essentially asserts respondents breached their duties as
attorneys because they failed to discover and disclose a tax deed in the chain of
title. Appellant claims because of the alleged defective title, she was unable to sell
the property and she stopped making mortgage payments; consequently, the
property was foreclosed.
Summary judgment is appropriate when it is clear there is no genuine
issue of material fact and the moving party is entitled to a judgment as a matter
of law. Cafe Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991). In
ruling on a motion for summary judgment, the evidence and the inferences which
can be drawn therefrom should be viewed in the light most favorable to the non-
moving party. Id.
Based on the evidence presented, the circuit court found respondents
were entitled to summary judgment as a matter of law. We agree. The circuit
court was faced with the question whether the tax deed clouded appellant's title,
thus imposing a duty on the closing attorneys to act with diligence to discover and
remove the cloud. "A cloud on title is a claim which on its face appears valid, but
resort to extrinsic evidence will show its invalidity." Freeman v. Colwell Mortgage
Corp., 297 S.C. 335, 3-17 S.E.2d 108 (1989). The deed of conveyance from a tax sale
must be held and taken as prima facie evidence of a good title in the holder, that
all proceedings have been regular and that all legal requirements have been
complied with. S.C. Code Ann. § 12-51-160 (Supp. 1996).1 No action for the
recovery of land sold under statutory provisions may be maintained unless brought
within two years from the date of the tax sale. Id. Since more than two years had
passed from the time of the tax sale, there was no factual issue whether there was
a cloud on appellant's title. Even if there were a cloud, it was not the proximate
cause of the foreclosure. The proximate cause of appellant's loss was her failure
to make payments according to the note, which obligations were separate and
independent of any alleged problem with the title.
Further, appellant did not provide evidence that the property was
unmarketable because of a defective title. Respondents presented evidence that the
property has been resold at least once subsequent to appellant's possession and that
she had marketable title. Accordingly, the trial judge properly found there was no
genuine issue of fact whether there was a defect on appellant's title and granted
1 Current statutory language was previously codified at S.C. Code Al-in. § 12-49-
570, repealed by 1985 Act No. 166, § 17, effective January 1, 1986.
BRENDA WILSON v. JAMES MOSELEY, et al.
summary judgment in respondents' favor.
The circuit court found that respondents Bozeman and Stilwell were
not liable to appellant since neither represented her in connection with this matter.
We agree. Accordingly, we affirm the circuit court's grant of summary judgment
in favor of respondents Bozeman and Stilwell.
Since the above reasons for granting summary judgment are
dispositive, we need not address the remaining grounds. We affirm the circuit
court's grant of summary judgment in favor of all respondents and dismissal with
TOAL, A.J., MOORE, WALLER and BURNETT, JJ., concur.