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2005-UP-017 - BB&T v. Kidwell

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


BB&T of South Carolina a/k/a Branch Banking and Trust Company,        Appellant,

v.

Lisa Smith Kidwell and William Brian Kidwell d/b/a Signature Residential Mortgage and John Franklin,        Defendants,

Of Whom John H. Franklin is        Respondent.


Appeal From Spartanburg County
Robert L. Couch, Master in Equity


Unpublished Opinion No. 2005-UP-017
Submitted November 1, 2004 – Filed January 13, 2005


REVERSED


John W. Ray, of Greenville , for Appellant.

David G. Ingalls, of Spartanburg , for Respondent.

PER CURIAM:  This is an ongoing dispute between two competing mortgagees originating from a mortgage foreclosure action.  In a previous appeal, this court determined that BB&T of South Carolina held first-lien status.  On remand, the master-in-equity ordered John H. Franklin, the other mortgagee, to hold the rents from the property in trust and to pay BB&T the principal and interest owed.  The order made specific findings regarding the amount owed, the rate of interest and the date to which interest would accrue, and the time for payment.  When Franklin failed to pay BB&T the entire amount owed, BB&T filed a rule to show cause seeking to hold Franklin in contempt.  The master reserved jurisdiction over the contempt action, and pursuant to Franklin’s request, ordered BB&T to provide further information and witnesses.   BB&T appeals.  We reverse. [1]  

FACTS

This appeal stems from an action brought by BB&T to foreclose on real property owned by Lisa and William Kidwell.  BB&T named John H. Franklin as a necessary party and defendant.  Franklin counterclaimed alleging he had an $85,000 mortgage on the property that was entitled to priority over BB&T’s mortgage.  The master-in-equity determined the Kidwells were liable on both BB&T’s mortgage and Franklin’s mortgage and ordered a public sale of the property.  Further, the master determined that Franklin was entitled to first-lien status and therefore priority over BB&T’s mortgage.  BB&T appealed the master’s ruling.  Pending the outcome of the appeal, the master stayed the public sale and ordered that rents from the property be collected and held in trust.  On appeal, this court reversed, finding BB&T was entitled to first-lien status and remanded the case to the master “for a recalculation of the total sums due BB&T and Franklin.”  See BB&T of South Carolina v. Kidwell, 350 S.C. 382, 391, 565 S.E.2d 316, 321 (Ct. App. 2002) (affirming the master’s award of prejudgment interest on Franklin’s mortgage, but reversing the master’s determination that Franklin’s mortgage was entitled to priority and remanding for recalculation of sums due BB&T and Franklin).

On remand, the master determined that the real property subject to the BB&T and Franklin mortgages had been sold at a private sale by agreement of the parties and that the sale proceeds had been held in the attorneys’ trust accounts.  Further, the master determined that all rents from the property were collected and were being held in trust by Franklin’s attorney.  The master ordered Franklin to pay to BB&T $106,065.24, which constituted the principal as well as the interest that had accrued through January 17, 2001, the date of trial.  The master also ordered Franklin to pay to BB&T interest in the amount of $27.27 per day for each day following the trial through August 29, 2002, the date of the order on remand.  These interest payments totaled $16,062.03.  Additionally, Franklin was ordered to pay interest in the amount of $27.27 per day for each day after August 29, 2002 through the date of receipt of the order by BB&T’s counsel or “the ending of any appeal from this Order, by written notice of the Defendant Franklin or Order of the appellate courts, whichever shall last occur.”   All rents from the property were ordered to be held in trust pending a further order or immediately paid over to BB&T for payment of the principal, interest, and attorney’s fees due. 

Following the master’s order, Franklin sent a copy of an undated and unfiled “Notice of Intent to Appeal” to BB&T.  After repeated requests from BB&T for either a filed appeal or written notice that Franklin’s appeal had ended, Franklin notified BB&T that he abandoned his appeal on October 15, 2002.  After BB&T received written notice that Franklin’s appeal had been abandoned, BB&T’s counsel disbursed the proceeds held in escrow.  According to BB&T, after disbursing the funds held in escrow, a shortfall of $3,313.42 remained on the money owed BB&T.  BB&T requested that Franklin utilize the rents collected from the property to pay that sum. 

On October 24, 2002, BB&T filed a rule to show cause seeking to hold Franklin in contempt for failing to provide a detailed accounting of rents and failing to apply the rents towards satisfaction of the debt owed to BB&T. 

On October 25, 2002, Franklin sent BB&T a response [2] and a subpoena requesting that BB&T produce all records concerning “a mortgage loan to Lisa S. Kidwell and William Brian Kidwell dated November 5, 1999.”  BB&T filed a motion to quash the subpoena alleging that the subpoena was improper because BB&T was a party, that the doctrine of res judicata barred Franklin from asserting claims, that Franklin should be estopped from engaging in discovery, and that service was invalid.  BB&T also filed a return to Franklin’s response asserting, among other allegations, that the issues raised in the response were barred because they had been previously litigated.  On November 22, 2002, BB&T filed a “Certificate of No Objection, Return nor Denial to Rule to Show Cause,” which alleged that Franklin’s response to the rule was unfiled and arguing that Franklin’s request for a recalculation of interest was affirmative relief which had been fully decided by the 2001 order, 2002 opinion of this court, and 2002 order on remand.   Additionally, BB&T’s certificate stated that by agreement of the parties a hearing before the equity court on the rule to show cause was set for November 22, 2002.

At the hearing, the parties addressed BB&T’s motion to quash the subpoena.  The master asked Franklin whether he had received the information requested.  Franklin responded that based on the information he received, he was not clear when the mortgage on the property had been paid off.  Franklin asserted that he was only liable to BB&T for rents on the property up to the date the mortgage was paid off, and BB&T conceded that point.  Franklin suggested that the mortgage was paid off prior to the August 29, 2002 date that the master determined interest was due through.  BB&T asserted, however, that the issue was barred because Franklin made no objection, made no post-trial motion, or appealed from the order on remand, which set the dates interest would accrue through.  The master concluded the hearing by ordering BB&T to provide the court with information as to when BB&T’s mortgage account was credited with payment and how much BB&T received. 

The master’s written order determined that he retained jurisdiction over the matter, ordered BB&T to identify the person who was the keeper of payments and disbursals made on the Kidwell account, and ordered that person to be a witness at the merits hearing.  From this order, BB&T appeals.

LAW/ANALYSIS

BB&T argues the master erred in ordering BB&T to identify the person who was the keeper of payments and disbursals made on the Kidwell account and in ordering that person to be a witness at the merits hearing.  Specifically, BB&T contends that because Franklin never appealed from the master’s order on remand, the dates set in that order and the amount owed became the law of the case.  We agree. 

“An unappealed order becomes the law of the case. ‘A portion of a judgment that is not appealed presents no issue for determination by the reviewing court and constitutes, rightly or wrongly, the law of the case.’”  McCall v. State Farm Mut. Auto Ins. Co., 359 S.C. 372, 378, 597 S.E.2d 181, 184 (Ct. App. 2004) (citations omitted).

In this case, Franklin never appealed from the master’s order on remand, which (1) held Franklin was liable on interest that accrued, not only through August 29, 2002, but through the date BB&T received written notice of the conclusion of any appeal from that order, and (2) ordered Franklin to hold all rents from the property in trust pending a further order or immediately pay over rents to BB&T for payment of the principal, interest, and attorney’s fees due.  Because Franklin never appealed from this order, Franklin is liable on the interest that accrued through October 15, 2002, the date Franklin notified BB&T in writing that he abandoned his appeal.  Moreover, Franklin was obligated by that order to hold all rents in trust for payment of his liability.  The date that payment was made on the mortgage was simply irrelevant in light of this order.  

Any argument Franklin had concerning the date payment was made on the mortgage and its effect on the amount he owed to BB&T in rents should have been raised on appeal from the order on remand.  Because Franklin did not appeal from the order on remand, it is the law of the case.  See id.  Therefore, the master erred in ordering BB&T to provide any information or witnesses concerning the mortgage payments and disbursals.

REVERSED. [3]

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Franklin’s response does not appear in the record on appeal. 

[3] We decline to address BB&T’s remaining issues on appeal.  See Futch v. McAllister Towing of Georgetown, 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (finding that an appellate court need not address remaining issues when disposition of prior issue is dispositive).