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2009-UP-092 - Logan v. Wachovia Bank

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

Henri Ann Logan, Appellant,

v.

Wachovia Bank, N.A., Wachovia Corporation, Respondents.


Appeal From Beaufort County
 John C. Few, Circuit Court Judge


AFFIRMED


Unpublished Opinion No. 2009-UP-092
Submitted February 2, 2009 – Filed February 23, 2009
Withdrawn, Substituted, and Refiled May 7, 2009


Bruce Robert Hoffman, of St. Helena Island, for Appellant.

W. Andrew Gowder, Jr., Daniel S. McQueeney, both of Charleston, for Respondent.

PER CURIAM: This appeal arises after Henri Ann Logan, a real estate attorney, discovered Wachovia made three banking errors concerning her attorney trust account.  Wachovia made the banking errors in 1999, and Logan filed suit against Wachovia on August 13, 2004.  The trial court granted Wachovia summary judgment because Logan failed to comply with the three-year statute of limitations.  Logan appeals this ruling and argues the trial court erred by 1) granting Wachovia's summary judgment motion because her lawsuit concerns Wachovia's actions after she discovered their mistakes; 2) granting Wachovia summary judgment on her defamation cause of action; 3) denying her motion for summary judgment; 4)  failing to find Wachovia should be estopped from asserting certain defenses including the statute of limitations defense; 5) finding a purported 1997 agreement was the contract between the parties; 6) failing to find unjust enrichment applied to her case; and 7)  prematurely granting summary judgment.  We affirm.[1]

1.  The trial court did not err in granting Wachovia's summary judgment motion based on the statute of limitations.  In South Carolina a party must commence an action within three years of the date the cause of action arises.  S.C. Code Ann. § 15-3-530 (2005).  The three-year statute of limitations "begins to run when the underlying cause of action reasonably ought to have been discovered."  Martin v. Companion Healthcare Corp., 357 S.C. 570, 575, 593 S.E.2d 624, 627 (Ct. App. 2004).  Under the discovery rule, "the three-year clock starts ticking on the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct."  Id. at 575-76, 593 S.E.2d at 627 (internal citation omitted).   Further, pursuant to the terms and conditions of Logan's deposit account, she agreed to report unauthorized transactions or errors to Wachovia within sixty days of receiving her banking statement.  As a general rule, in South Carolina, parties may exercise freedom of contract, so long as the contract is lawful.  Jordan v. Aetna Cas. & Sur. Co., 264 S.C. 294, 297, 214 S.E.2d 818, 820 (1975) ("While parties are generally permitted to contract as they desire, freedom to contract is not absolute and coverage required by law may not be omitted.").

2.  The trial court did not err in granting Wachovia's summary judgment motion on Logan's defamation claim.  "In order to prove defamation, a party must show: (1) a false and defamatory statement was made; (2) the unprivileged publication of the statement to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm."  Williams v. Lancaster County Sch. Dist., 369 S.C. 293, 302-03, 631 S.E.2d 286, 292 (Ct. App. 2006).  Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of matter asserted."  Rule 801(c), SCRE.  Generally, hearsay is inadmissible.  Rule 802, SCRE.  Under the South Carolina Rules of Civil Procedure, an affidavit supporting summary judgment must be made on personal knowledge, must be admissible, and must show the affiant's competency to testify.  Rule 56(e), SCRCP ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). 

3.  The trial court did not err in denying Logan's summary judgment motion because this issue is not immediately appealable.  See Ballenger v. Bowen, 313 S.C. 476, 476, 443 S.E.2d 379, 380 (1994) (holding "the denial of summary judgment is not directly appealable.").  Moreover, even in an appeal from a final judgment, a denial of summary judgment is not reviewable.  Id. at 477, 443 S.E.2d at 380.  Accordingly, we need not address the denial of summary judgment issue.

4.  The trial court did not err in finding Wachovia was not estopped from asserting defenses or in finding a 1997 contract was the controlling agreement between the parties.  The purpose of Rule 59(e), SCRCP, motion is to request for the trial judge to reconsider matters properly encompassed in a decision on the merits.  Collins Music Co., Inc. v. IGT, 353 S.C. 559, 562, 579 S.E.2d 524, 525 (Ct. App. 2002).  In Pye v. Estate of Fox, the South Carolina Supreme Court identified two ways to preserve an issue for appeal as either: "a ruling by the trial [court] or a post-trial motion."  369 S.C. 555, 566, 633 S.E.2d 505, 511 (2006).  During the hearing on the summary judgment motion, Logan argued Wachovia "should be estopped from even raising the [statute of limitations] argument."  However, the trial court did not rule on the estoppel argument or rule on whether the 1997 contract governed relations between the parties at the end of the hearing or in its order granting summary judgment.  Logan should have filed a Rule 59(e) motion, alerting the trial court to both issues and giving the court an opportunity these issues.  See Pye, 369 S.C. at 565, 633 S.E.2d at 510.  Instead, Logan directly appealed the trial court's order granting Wachovia's summary judgment motion.  Because this issue was never raised at the trial level, it is not preserved for our review.  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) ("An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court."). 

5.  Logan's unjust enrichment argument is abandoned.  An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.  State v. Jones, 344 S.C. 48, 58-59, 543 S.E.2d 541, 546 (2001).  Logan failed to cite any authority in support of her unjust enrichment assertion; therefore, she abandoned this issue on appeal.

6.  The trial court did not prematurely grant Wachovia's motion for summary judgment.  Until the opposing party has had a full and fair opportunity to investigate, summary judgment is a drastic remedy and must not be granted.  Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003).  "Nonetheless, the nonmoving party must demonstrate the likelihood that further discovery will uncover additional relevant evidence and that the party is not merely engaged in a fishing expedition."  Id. (internal citations omitted).  Logan did not demonstrate further discovery would uncover additional relevant facts.  Accordingly, the trial court did not prematurely grant summary judgment. 

AFFIRMED.

HEARN, C.J., PIEPER and LOCKEMY, JJ., concur.


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