Cook v. Phillips ( 2018 )

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
William Rice Cook, III, Appellant,
v.
Benny Richard Phillips, Jr. and the real estate property
located at 207 North Avenue, Anderson, South Carolina
29625, TMS# 123-26-08-02, Respondents.
Appellate Case No. 2016-001653
Appeal From Anderson County
R. Lawton McIntosh, Circuit Court Judge
Unpublished Opinion No. 2018-UP-470
Submitted October 1, 2018 – Filed December 19, 2018
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Daniel L. Draisen, of Krause Moorhead & Draisen, PA,
of Anderson; Timothy Alan Nowacki, of The Clardy Law
Firm, P.A., of Greenville; and Andrew Sims Radeker, of
Harrison, Radeker & Smith, P.A., of Columbia, all for
Appellant.
Michael F. Mullinax, of Mullinax Law Firm, P.A., of
Anderson, for Respondent.
PER CURIAM: William R. Cook, III appeals a circuit court order granting
summary judgment to Benny R. Phillips, Jr. on Cook's causes of action for unjust
enrichment, conversion, constructive trust, and partition, and canceling a lis
pendens on a parcel of Phillips's real property (the Property).
In its order, the circuit court ruled Cook's claims were barred by section 62-3-803
of the South Carolina Code (Supp. 2018) (setting a time limit on the filing of
"claims against a decedent's estate"), and it granted summary judgment on that
ground. However, Cook's claims were brought against Phillips in his individual
capacity, not against the estate of Phillips's grandmother or Phillips in any
representative capacity. Accordingly, section 62-3-803 is inapplicable to this
action. Nonetheless, we affirm the grant of summary judgment to Phillips on
Cook's conversion, constructive trust, and partition claims on other grounds. See
Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision
or judgment upon any ground(s) appearing in the Record on Appeal.").
First, summary judgment is appropriate on the conversion claim because Cook
alleged Phillips converted improvements to the Property, a parcel of real estate.
See Owens v. Andrews Bank & Tr. Co., 265 S.C. 490, 496, 220 S.E.2d 116, 119
(1975) ("Conversion has been defined in our case law as an unauthorized
assumption and exercise of the right of ownership over goods or personal chattels
belonging to another, to the exclusion of the owner's rights."); Hawkins v. City of
Greenville, 358 S.C. 280, 297, 594 S.E.2d 557, 566 (Ct. App. 2004) ("It is well
settled that a conversion action does not lie when alleging the exercise of dominion
or control over real property."); id. ("Therefore, to the extent [a] conversion claim
pertains to the actions of [a party] with respect to real property, the claim clearly
fails as a matter of law."). Next, summary judgment is appropriate on the
constructive trust claim because Phillips did not acquire the Property through
"fraud, bad faith, abuse of confidence, or violation of a fiduciary duty." Lollis v.
Lollis, 291 S.C. 525, 529, 354 S.E.2d 559, 561 (1987); see id. ("A constructive
trust will arise whenever the circumstances under which property was acquired
make it inequitable that it should be retained by the one holding the legal title."
(emphasis added)).
Because Cook's constructive trust claim fails, and Cook has no other cognizable
legal or equitable interest in the property, summary judgment is also appropriate on
the partition claim. See S.C. Code Ann. § 15-61-10(A) (Supp. 2018) (allowing
"joint tenants and tenants in common" to request partition "of . . . lands, tenements
and hereditaments"); S.C. Code Ann. § 15-61-50 (2005) (allowing the court of
common pleas to order the partition of "real and personal estates held in joint
tenancy or in common"). Similarly, because Cook has no interest in the Property,
we affirm the circuit court's cancellation of the lis pendens. See S.C. Code Ann.
§ 15-11-10 (2005) (allowing the filing of a lis pendens "[i]n an action affecting the
title to real property"); Pond Place Partners, Inc. v. Poole, 351 S.C. 1, 17, 567
S.E.2d 881, 889 (Ct. App. 2002) ("Where no real property is implicated, . . . a
notice of pendency of action need not be filed."); Carolina Park Assocs., LLC v.
Marino, 400 S.C. 1, 9, 732 S.E.2d 876, 880 (2012) ("Because Appellants have
failed to state a claim for a constructive trust, they have no claim affecting the title
to real property and the lis pendens is not 'authorized by this chapter.' We
therefore affirm the cancellation of the lis pendens.").
However, because Cook pled and presented facts supporting each element of his
unjust enrichment claim, and a genuine issue of fact exists regarding Phillips's
liability to Cook under this theory of recovery, summary judgment was improper
and we reverse and remand for further proceedings on that claim. See BPS, Inc. v.
Worthy, 362 S.C. 319, 324, 608 S.E.2d 155, 158 (Ct. App. 2005) ("When
reviewing the grant of a summary judgment motion, the appellate court applies the
same standard [that] governs the trial court under Rule 56(c), SCRCP: summary
judgment is proper when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.").
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.1
HUFF, SHORT, and WILLIAMS, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.