Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
24770 - Wilder Corporation f/k/a Wilder Mobile Homes, Inc. v. Klaus Wilke and Rita E.

Davis Adv. Sh. No. 10
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Wilder Corporation f/k/a

Wilder Mobile Homes,

Inc. Respondent

v.

Klaus Wilke and Rita E.

Wilke Petitioners

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Lexington County

George W. Jefferson, Master-In-Equity

Opinion No. 24770

Heard December 16, 1997 - Filed March 9, 1998

AFFIRMED

Edward M. Woodward, Jr., of Woodward, Cothran

& Herndon, of Columbia, for petitioners.

John F. Emerson and William H. Short, Jr., both of

Sinkler & Boyd, P.A., of Columbia, for respondent.

TOAL, A.J.: This case involves the foreclosure of a bond for title.

Respondent, Wilder Corporation ("Seller"), brought this foreclosure action

against petitioners, Klaus and Rita Wilkes ("Buyer"), as a result of Buyer's

p.3


WILDER CORPORATION v. KLAUS WILKE, ET AL.

indebtedness arising out of the sale of property. The master-in-equity found

in favor of Buyer. The Court of Appeals affirmed in part and reversed in

part. Buyer appeals the Court of Appeals' decision. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In 1979, Seller agreed to sell its mobile home park to Buyer in

exchange for Buyer's motel and the additional sum of $635,000. On January

25, 1980, the parties signed a bond for title memorializing the exchange and

the $635,000 debt. The bond for title provided that Buyer would pay

monthly payments of $5,658.80 to commence March 1, 1980, and to continue

until February 1, 1995, when a balloon payment of the remaining balance

would be due. However, the contract reduced Buyer's first twenty payments

by $500, from $5,658.80 a month to $5,158.80 a month. Additionally, the

bond for title allowed Buyer to defer a maximum of three months successive

payments in the event occupancy at the mobile home park fell below 152

spaces. It also permitted the parties to set-off or add any claims or

judgments arising under the terms of the agreement.

After Buyer took possession of the mobile home park on January 28,

1980, the parties executed a modification agreement which provided that

Seller would pay Buyer a one-time payment of $6,000 and that the bond for

title would be reduced by $500 per payment for the first twenty payments.1

Buyer began payment on the bond for title on March 1, 1980. However, in

1991, Buyer deferred payments for the months of September, October, and

November due to low occupancy in the mobile home park.

Sometime during the repayment period, Buyer filed suit against Seller

in federal district court concerning Seller's failure to connect the mobile home

park to a sewage treatment facility, as required by the bond for title. On

July 12, 1994, a federal district court issued a judgment against Seller in the

amount of $146,584.72.2 The court further ordered post-judgment interest in

the amount of 5.31% per annum.


1This modification was made because the parties discovered

inaccuracies in the mobile home park's monthly operating statement and

difficulties with the South Carolina Department of Health and Environmental

Control.

2The federal district court judgment was affirmed by the Fourth Circuit

Court of Appeals in Wilke v. Wilder Corp., 74 F.3d 1235 (4th Cir. 1996).

p.4


WILDER CORPORATION v. KLAUS WILKE, ET AL.

After Buyer made the final monthly payment in January 1995, Seller

sent Buyer a demand letter requesting $512,557.61 for the balloon payment

due February 1, 1995. Buyer tendered the sum of $280,990.33 to Seller.

Seller refused the tender and brought this foreclosure action against Buyer.

Subsequent to the filing of this action, Buyer paid $281,000 to Seller's

attorneys pursuant to a motion for appointment of receiver.

A hearing was conducted before a master-in-equity on July 6, 1995.

Both Buyer and Seller provided amortization schedules reflecting their views

of Buyer's payment obligation. The master adopted Buyer's amortization

schedule and made four conclusions of law: (1) the modification agreement

modified the bond for title insofar as it reduced the principal amount by

$10,000; (2) Buyer properly credited the federal court judgment in the

amount of $146,584.72 on July 12, 1994. Moreover, no attempt to levy or

otherwise execute the judgment was required in order to offset debt under

the bond for title, and there was no requirement that Buyer wait to offset

such judgment until such time as all appeals had been exhausted; (3) Buyer

made or was excused from making all scheduled payments under the bond

for title, except for the final balloon payment; and (4) the court agreed with

the assumptions Buyer used in constructing the amortization schedule.

Accordingly, the master ordered Buyer to pay a residual amount of $811.72,

plus interest accruing at 9.75%.

The Court of Appeals affirmed the master's order except on four points.

See Wilder Corp. v. Wilke, ___ S.C. ___ , 479 S.E.2d 510 (1997). First, the

Court of Appeals held that interest began to accrue on the loan from the date

of signing, January 25, 1980, rather than the date of the first payment,

March 1, 1980. Second, since the interest accrual date was January 25,

1980, the court held that the master erred in applying Buyer's first payment

entirely toward principal. Third, the court found that the master incorrectly

gave Buyer credit for 180 payments when the evidence supported only 179

payments. Finally, the Court of Appeals noted that Buyer's amortization

schedule gave credit for the federal court judgment in the amount of

$147,289.53; the federal court judgment was $146,584.72, with post-judgment

interest accruing at the rate of 5.31% per annum. The court held that the

master should have only deducted the actual amount of the judgment,

$146,584.72.

This Court granted Buyer's petition for a writ of certiorari to consider

the following questions:

1. Did the Court of Appeals err in holding that Seller preserved or did

p.5


WILDER CORPORATION v. KLAUS WILKE, ET AL.

not waive any objections to the calculations in Buyer's amortization schedule

by stipulating to the accuracy of those calculations?

2. Did the Court of Appeals err in holding that interest began to

accrue prior to the first payment?

3. Did the Court of Appeals err in holding that a payment had not

been made or credited?

4. Did the Court of Appeals err in considering whether the trial court

erred by adopting the figures in Buyer's amortization schedule as to the

amount of the federal court judgment?

LAW/ANALYSIS

A. WAIVER/PRESERVATION

Buyer argues that the following issues were not properly preserved for

review by the Court of Appeals: (1) the date when interest started to accrue;

(2) application of the first payment to principal; (3) the number of payments

made by Buyer; and (4) accrual of interest on deferred payments. In a

related argument, Buyer contends that the Court of Appeals erred in holding

that Seller, by its stipulation, did not waive any objections to the calculations

in Buyer's amortization schedule. It should be noted at the outset that Buyer

has preservation problems of its own in that Buyer did not raise all of these

issues to the Court of Appeals in its petition for rehearing. That said, we

disagree with Buyer's contention that Seller waived or failed to preserve its

position on these issues.

At trial, Seller's attorney made the following objection/stipulation when

Buyer's amortization schedule was introduced into evidence:

We have an objection to the theories considered by [the

accountant] in doing the math, but we have no objection to the

way he did the math. We presume that if your honor rules and

sustains [Buyer's] point on the theories, that the math will be

correct . . . .[Buyer's amortization schedule] is a mathematical

run of payments with certain presumptions made on theories

propounded by [the accountant]. [The accountant] has run those

numbers. And if [his] points are sustained by you, then [his] run

of the numbers is accurate.

p.6


WILDER CORPORATION v. KLAUS WILKE, ET AL.

It is axiomatic that an issue cannot be raised for the first time on

appeal, but must have been raised to and ruled upon by the trial judge to be

preserved for appellate review. Creech v. South Carolina Wildlife and Marine

Resources Dep't, ___S.C.___, 491 S.E.2d 571 (1997). Moreover, an objection

must be sufficiently specific to inform the trial court of the point being urged

by the objector. Broom v. Southeastern Highway Contracting Co., 291 S.C.

93, 352 S.E.2d 302 (Ct. App. 1986). In this case, Seller's and Buyer's

amortization schedules clearly conflicted on the issues Buyer propounds as

not having been preserved for appellate review. These issues were, in fact,

integral to the computation of the final balances reached by either side.

Thus, in this context, Seller's objection was specific enough to allow the trial

judge to understand and rule upon the alleged error.

Buyer next argues that the trial judge failed to rule upon Seller's

objection at trial. As such, Buyer contends that the above issues were not

preserved for review because Seller failed to make a Rule 59(e) motion.3 We

disagree. Post-trial motions are not necessary to preserve issues that have

been ruled upon at trial; they are used to preserve those that have been

raised to the trial court but not yet ruled upon by it. Hubbard v. Rowe, 192

S.C. 12, 5 S.E.2d 187 (1939). Here, the trial court ruled on Seller's objections

by expressly adopting Buyer's amortization schedule in its order.

Consequently, it was unnecessary for Seller to make any post-trial motions.

Finally, we disagree that Seller, by its stipulation, waived any

objections to Buyer's amortization schedule. Although stipulating to the

accuracy of Buyer's numerical calculations, Seller unequivocally objected to

the presumptions underlying those calculations. As discussed above, in the

context of the case, Seller's objection was sufficiently specific to inform the

trial judge of any error. Therefore, the Court of Appeals was correct in

holding that Seller did not waive any objections to Buyer's amortization

schedule.

B. INTEREST ACCRUAL DATE

Buyer argues that the Court of Appeals erred in finding that the

interest accrual date began on January 25, 1980, rather than March 1, 1980.

We disagree.


3 Rule 59(e), SCRCP, provides, "A motion to alter or amend the

judgment shall be served not later than 10 days after receipt of written

notice of the entry of the order."

p.7


WILDER CORPORATION v. KLAUS WILKE, ET AL.

The bond for title was signed on January 25, 1980. It provided, in

part:

[T]he aforesaid sum shall be payable in monthly installments of

principal and interest at the rate of Nine and three-quarters per

cent (9.75%) per annum at the office of the obligor . . . . Said

monthly installments shall be in the amount of Five Thousand

Six Hundred Fifty-eight and 80/100 Dollars ($5,658.80)

commencing on the 1st day of March, 1980, and on the 1st day

of each month thereafter until the principal and interest are fully

paid . . . .

Where a contract for the payment of a sum of money at a future date

provides that it is payable with interest, or is to bear interest, without

specifying from what date the interest is to be computed, it will be construed

to bear interest from the date of the contract. Graham v. Burgiss, 78 S.C.

404, 59 S.E. 29 (1907); G.M.H., Annotation, Construction of Contractual

Provisions As To Interest As Regards Time From Which Interest Is To Be

Computed, 69 A.L.R. 958 (1930). In this case, the bond for title failed to

specify the interest accrual starting date; it merely designated when the loan

payments were to begin. Therefore, interest began to accrue on January 25,

1980, the date the bond for title was signed.

C. NUMBER OF PAYMENTS

Buyer argues that the Court of Appeals erred in holding that Buyer

should have been given credit for 179 payments instead of 180 payments.

We disagree.

The Court of Appeals found that Buyer's list of payments, which the

master admitted into evidence under a stipulation that it accurately reflected

payments Buyer could prove, showed 175 payments having been made. The

Court of Appeals added to this number the three payments deferred in 1991

and the January 1995 payment to arrive at 179 payments. Buyer's

amortization schedule, on the other hand, showed 180 payments having been

made.

In 1980, Buyer made 10 monthly installments. For fourteen years

thereafter, Buyer made 12 monthly installments every year except for 1991

when Buyer deferred three payments. Therefore, excluding the three

deferred payments and the January 1995 payment, Buyer made a total of 175

monthly payments. When the three deferred payments and the January 1995

p.8


WILDER CORPORATION v. KLAUS WILKE, ET AL.

payment are added, the total becomes 179 payments.

D. FEDERAL COURT JUDGMENT

Buyer argues that the Court of Appeals erred in considering the issue

of whether post-judgment interest should have been applied to the federal

court judgment as a set-off against amounts owed by Buyer. We disagree.

The Court of Appeals held that the amount of the set-off for the federal

court judgment could not include any amounts for post-judgment interest.

Buyer does not challenge the correctness of this holding, but simply argues

that this issue was not preserved for review by the Court of Appeals. For

the reasons outlined above, we find that Seller's objection at trial was

sufficient to preserve this issue for appellate review. Moreover, the trial

court ruled upon Seller's objection by expressly adopting Buyer's amortization

schedule in its order.

CONCLUSION

For the foregoing reasons, the Court of Appeals' decision is

AFFIRMED.

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.