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24664 - Wilson v. Moseley, et al.

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Brenda Wilson, Appellant,

V.

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

AFFIRMED

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

affirm.

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

prejudice.

AFFIRMED-

TOAL, A.J., MOORE, WALLER and BURNETT, JJ., concur.