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2010-UP-424 - J.D., Inc. v. A-Team Surface Technologies, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

J.D., Inc. of Hilton Head d/b/a Hilton Head Glidden, Respondent,

v.

A-Team Surface Technologies, Inc., Charles A. Stundzia, and Stephanie Lamb, Defendants,

of whom Stephanie Lamb is Appellant.


Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge


Unpublished Opinion No. 2010-UP-424
Submitted September 1, 2010 – Filed September 28, 2010


AFFIRMED IN PART, REVERSED IN PART, and REMANDED


Michael W. Mogil, of Hilton Head Island, for Appellant.

Russell P. Patterson, of Hilton Head Island, for Respondent.

PER CURIAM: This appeal arises out of the grant of summary judgment in favor of Respondent J.D., Inc. of Hilton Head d/b/a Hilton Head Glidden (Glidden).  Appellant Stephanie Lamb argues the circuit court erred in granting summary judgment because the terms of the contract are ambiguous, thus presenting an issue of fact to be resolved at trial.[1]

FACTS/PROCEDURAL HISTORY

Glidden entered into a credit and sales agreement with A-Team Surface Technologies, Inc. (A-Team), a business owned by Lamb's ex-husband, Charles Stundzia.  The agreement provided for a $5,000 requested credit limit, with the balance due by the tenth of the month for a two percent discount and due within thirty days of billing to prevent default.  Any unpaid portion of the balance after thirty days would be subject to a 1.5% service charge.  The agreement also provided for the payment of reasonable attorney's fees, consisting of fifteen percent of the balance due, plus all costs.  Finally, the agreement contained the following provision: "Customer will be notified by Glidden if Customer is approved for credit and at what credit limit.  Glidden expressly reserves the right, at any time, for any reason, to cancel the right to purchase on credit in the future." 

Underneath the signature line in the credit and sales agreement is a personal guarantee signed by Stundzia and Lamb:

PERSONAL GUARANTEE

In consideration of the extension of credit to the above Customer, I/we personally and individually guarantee payment of any and all future or current indebtedness, including costs and attorney's fees on demand.  This guarantee will remain in full force and effect as to new purchases until written notice of its termination is received by Hilton Head Glidden/Beaufort Glidden, Attn: David Harter, 13 New Orleans Road, Hilton Head Island, South Carolina 29928.

Glidden initiated the present action by filing a nonjury complaint to collect a debt arising out of the account from A-Team, Stundzia, and Lamb.[2]  Lamb answered the complaint and filed counterclaims for contract termination and contract modification.  Glidden subsequently filed a motion for summary judgment.  The trial court granted summary judgment in favor of Glidden after a hearing and awarded Glidden $13,330.58 for breach of contract, plus $6,198.71 for prejudgment interest accrued through February 1, 2008.  The court also awarded $2,929.39 in attorney's fees, which is one third of the amount awarded in principal and interest, for a total judgment of $22,458.68.  Lamb filed a motion to alter or amend pursuant to Rule 59(e), SCRCP, which was denied.  This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a motion for summary judgment, the appellate court applies the same standard that governs the trial court.  Wogan v. Kunze, 379 S.C. 581, 585, 666 S.E.2d 901, 903 (2008).  Summary judgment is proper when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law.  Rule 56(c), SCRCP.  "On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the [nonmoving] party below."  USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008).  "[I]n cases applying the preponderance of the evidence burden of proof, the [nonmoving] party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment."  Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). 

LAW/ANALYSIS

The sole issue on appeal is whether summary judgment was appropriate.  Lamb asserts the existence of an ambiguity creating a question of fact precluding summary judgment because the credit and sales agreement secured by her personal guarantee did not provide for the creation of debt greater than $5,000.  We disagree.

As a preliminary issue, the trial court found that Lamb signed the agreement as a personal guarantor.  Lamb argued before the trial court that she executed the credit and sales agreement on behalf of her husband's business.  However, Lamb claimed she did not intentionally sign a personal guarantee when she printed her name on the signature line for the credit and sales agreement and signed her name underneath the personal guarantee section.  The trial court dismissed this argument and concluded Lamb's admission that she signed the document, which clearly stated in bold capital letters "PERSONAL GUARANTEE," supports her status a personal guarantor on the note.  Lamb abandoned this argument on appeal, asserting only that her personal guarantee is limited to $5,000.  "[A]n 'unchallenged ruling, right or wrong, is the law of the case and requires affirmance.'"  Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010) (quoting First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct. App. 1998)).  Therefore, we affirm the finding that Lamb is a personal guarantor of the credit and sales agreement.

Accordingly, we next consider whether a dispute exists as to Lamb's personal liability for any debt greater than $5,000.  Whether the language of a contract is ambiguous is a question of law.  S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001).  The construction of an ambiguous contract is a question of fact.  Skull Creek Club Ltd. P'ship v. Cook & Book, Inc., 313 S.C. 283, 286, 437 S.E.2d 163, 165 (Ct. App. 1993).  An ambiguous written agreement is one that is capable of being understood in more than one way, or is an agreement unclear in meaning because it expresses its purpose in an indefinite manner.  Klutts Resort Realty, Inc. v. Down'Round Dev. Corp., 268 S.C. 80, 89, 232 S.E.2d 20, 25 (1977).  "Where the language of a contract is plain and capable of legal construction, that language alone determines the instrument's force and effect."  Jordan v. Sec. Group, Inc., 311 S.C. 227, 230, 428 S.E.2d 705, 707 (1993).  Summary judgment is not proper when there is a question as to the construction of a written contract and the contract is ambiguous because the intent of the parties cannot be ascertained from the four corners of the agreement.  HK New Plan Exch. Prop. Owner I, LLC v. Coker, 375 S.C. 18, 23, 649 S.E.2d 181, 184 (Ct. App. 2007). 

A guarantee is a contract.  TranSouth Fin. Corp. v. Cochran, 324 S.C. 290, 294, 478 S.E.2d 63, 65 (Ct. App. 1996).  A note and guarantee are two separate contracts.  First Sav. Bank, FSB v. Capital Investors, 318 S.C. 555, 557, 459 S.E.2d 307, 308 (1995).    However, "[t]he general rule is that, in the absence of anything indicating a contrary intention, where instruments are executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction, the courts will consider and construe the instruments together."  Klutts, 268 S.C. at 88, 232 S.E.2d at 24.  "Construing contemporaneous instruments together means simply that if there are any provisions in one instrument limiting, explaining, or otherwise affecting the provisions of another, they will be given effect between the parties so that the whole agreement as actually made may be effectuated."  Id. at 88-89, 232 S.E.2d at 24.  Conversely, when the terms of a written guarantee agreement are clear and complete, extrinsic evidence of agreements or understandings contemporaneous with or prior to its execution cannot be used to contradict, explain, or vary its terms.  Pee Dee State Bank v. Nat'l Fiber Corp., 287 S.C. 640, 643, 340 S.E.2d 569, 570-71 (Ct. App. 1986). 

In the present matter, the personal guarantee provides that Lamb is individually responsible for "any and all future or current indebtedness."  The guarantee also indicates it is "in consideration of the extension of credit to the above Customer," referencing the credit and sales agreement that is located in the same document, directly preceding the personal guarantee.  Even though a guarantee is considered to be a separate contract, both the credit and sales agreement and the guarantee were executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction.  See First Sav. Bank, 318 S.C. at 557, 459 S.E.2d at 308; Klutts, 268 S.C. at 88, 232 S.E.2d at 24.  Further, the guarantee references the credit and sales agreement, which supports the inference that the two documents are to be read together.

In Pee Dee State Bank, the court of appeals scrutinized a guarantee executed as security for an $85,000 loan to a corporation.  287 S.C. at 641, 340 S.E.2d at 570.  The loan was secured by the personal guarantees of two of its officers.  Id.  After the corporation repaid the first loan, the bank loaned another $85,000, which was never repaid.  Id.  One officer contested his liability for the second loan, claiming his personal guarantee was only for the first loan.  Id. at 642, 340 S.E.2d at 570.  The court found the guarantee, entitled "UNCONDITIONAL CONTINUING PERSONAL GUARANTY" in all caps, was plain on its face and not limited to the initial loan.  Id. at 642, 340 S.E.2d at 570. 

Notwithstanding, Pee Dee State Bank is reconcilable with the rule of construing related documents together enunciated in Klutts, which has been cited frequently in this state.  See, e.g., Cafe Assocs. v. Gerngross, 305 S.C. 6, 10, 406 S.E.2d 162, 164 (1991); Sentry Eng'g & Constr., Inc. v. Mariner's Cay Dev. Corp., 287 S.C. 346, 350, 338 S.E.2d 631, 633 (1985); Wilbur Smith & Assocs. v. Nat'l Bank of S.C., 274 S.C. 296, 299, 263 S.E.2d 643, 645 (1980); Ecclesiastes Prod. Ministries v. Outparcel Assocs., 374 S.C. 483, 498-99, 649 S.E.2d 494, 502 (Ct. App. 2007).  The guarantee in Pee Dee State Bank was, by its terms, a continuing guarantee for full payment of all debts "whether now owing or due, or which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created. . . ."  Pee Dee State Bank, 287 S.C. at 642, 340 S.E.2d at 570.  The court refused to consider extrinsic evidence of agreements or understandings contemporaneous with, or prior to, its execution to explain the terms in the guarantee because the guarantee was clear and complete on its own.  Id. at 643, 340 S.E.2d at 570-71.  However, as indicated, the guarantee signed by Lamb in this case is contained within the same document as the credit and sales agreement with the requested $5,000 credit limitation; at a minimum, for summary judgment purposes, this fact distinguishes this case from the unconditional guarantee found in Pee Dee State Bank in which no such additional fact raised a question as to the intent of the parties. 

Further, although not discussed, the indication that the guarantee in Pee Dee State Bank was unconditional and continuing could be interpreted as a contrary intention that the guarantee should not be considered together with the other contemporaneously executed documents.  Cf. Klutts, 268 S.C. at 88, 232 S.E.2d at 24 (construing instruments executed at the same time together "in the absence of anything indicating a contrary intention").  In the instant case, the personal guarantee included at the bottom of the two-page credit and sales agreement does not contain any indication it should not be read together with the credit and sales agreement; in fact, the guarantee references the credit and sales agreement by referring to the above customer. 

Ultimately, if the documents are construed together, there is more than one inference that may be drawn therefrom.  Glidden views the terms of the guarantee as insuring payment of "all future and current indebtedness."  Lamb, on the other hand, submitted an affidavit averring she read the agreement as a whole and believed she was only guaranteeing a credit limit up to $5,000.  Therefore, because at least a mere scintilla of evidence supports Lamb's position, we reverse the grant of summary judgment and the award of damages.  See USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008); Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

CONCLUSION

For the foregoing reasons, we affirm the finding that Lamb is a personal guarantor of the credit and sales agreement.  However, we reverse the grant of summary judgment on the disputed issue of whether Lamb's guarantee extends beyond the requested credit limit and remand this issue for trial.  Accordingly, the order of the trial court is

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

WILLIAMS, PIEPER, and KONDUROS, JJ., concur.


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

[2] A-Team and Stundzia are not parties to the present appeal.