Stoneledge v. IMK Development ( 2014 )

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
Stoneledge at Lake Keowee Owners' Association, Inc.,
C. Dan Carson, Jeffrey J. Dauler, Joan W. Davenport,
Michael Furnari, Donna Furnari, Jessy B. Grasso, Nancy
E. Grasso, Robert P. Hayes, Lucy H. Hayes, Ty Hix,
Jennifer D. Hix, Paul W. Hund, III, Ruth E. Isaac,
Michael D. Plourde, Mary Lou Plourde, Carol C. Pope,
Steven B. Taylor, Bettie J. Taylor, and Robert White,
Individually, and on behalf of all others similarly
situated, Plaintiffs,
v.
IMK Development Co., LLC, Keowee Townhouses,
LLC, Ludwig Corporation, LLC, SDI Funding, LLC,
Medallion At Keowee, LLC, Integrys Keowee
Development, LLC, Marick Home Builders, LLC, Bostic
Brothers Construction, Inc., Miller/Player & Associates,
Bradford D. Seckinger, John Ludwig, William Cox,
Larry D. Lollis, Rick Thoennes, M Group Construction
and Development, LLC, Mel Morris, Joe Bostic, Jeff
Bostic, Clear View Construction, Michael Franz, MHC
Contractors, Miguel Porras Choncoas, Builders
FirstSource Southeast Group, Mike Green, Southern
Concrete Specialties, Carl Compton d/b/a Compton
Enterprise d/b/a Compton Enterprises, Gunter Heating &
Air, All Pro Heating, A/C & Refrigeration, LLC,
Coleman Waterproofing, Heyward Electrical Services,
Inc., Tinsley Electrical, LLC, Hutch N Son Construction,
Inc., Southern Basements, Inc., Carl Catoe Construction,
Inc., T.G. Construction, LLC, Delfino Construction,
Francisco Javier Zarate d/b/a Zarate Construction,
Alejandro Avalos Cruz, Herberto Acros Hernandez,
Martin Hernandez-Aviles, Francisco Villalobos Lopez,
Ambrosio Martinez-Ramirez, Ester Moran Mentado,
Socorro Castillo Montel, Upstate Utilities, Inc., MJG
Construction and Homebuilders, Inc. d/b/a MJG
Construction, KMAC of the Carolinas, Inc., Eufacio
Garcia, Everado Jarmamillo, Garcia Parra Insulation,
Inc., J&J Construction, Jose Nino, Jose Manuel Garcia,
Eason Construction, Inc., and Vincent Morales d/b/a
Morales Masonry, Defendants,
Of Whom Marick Home Builders, LLC and Rick
Thoennes are the Appellants,
And
Hutch N Son Construction, Inc. and Upstate Utilities,
Inc. are the Respondents.
Appellate Case No. 2012-213237
Appeal From Oconee County
Alexander S. Macaulay, Circuit Court Judge
Unpublished Opinion No. 2014-UP-209
Heard May 6, 2014 – Filed June 4, 2014
AFFIRMED
Jason Michael Imhoff and Carl Reed Teague, The Ward
Law Firm, PA, both of Spartanburg, for Appellants.
Laura Watkins Jordan and Shelley Sunderman Montague,
Gallivan, White & Boyd, PA, both of Columbia, for
Respondent Hutch N Son Construction, Inc.; and Sidney
Markey Stubbs, Baker Ravenel & Bender, LLP, of
Columbia, for Respondent Upstate Utilities, LLC.
PER CURIAM: The appellant Marick Home Builders, LLC served as the general
contractor for the construction of townhomes in Oconee County, known as
Stoneledge at Lake Keowee. The Stoneledge at Lake Keowee Owners'
Association, Inc. (SOA) brought suit against Marick and several other parties
involved in the development and construction of the townhomes. The SOA
asserted negligence and breach of warranty claims based on the existence of
multiple construction defects. Subsequently, Marick brought cross-claims against
two subcontractors that performed work on the project—the respondents Hutch N
Son Construction, Inc. and Upstate Utilities, LLC—for equitable indemnity,
negligence, and breach of warranty, and, as against Hutch N Son only, breach of
contract.1 Hutch N Son and Upstate Utilities filed motions for summary judgment
on all of Marick's cross-claims, which the trial court granted. We affirm.
On appeal, Marick first argues the trial court erred in treating Marick's cross-claims
for breach of warranty, negligence, and breach of contract as a single claim for
equitable indemnity. We find this issue is not preserved for our review. First,
Marick did not assert this argument to the trial court. See Whaley v. CSX Transp.,
Inc., 362 S.C. 456, 482, 609 S.E.2d 286, 299 (2005) (finding issue not preserved
because it was not raised to and ruled upon by the trial court). Second, Marick
conceded its cross-claims were claims for equitable indemnity at the summary
judgment hearing. See Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 45-46,
691 S.E.2d 135, 147 (2010) (holding issue not preserved because appellant
conceded issue at trial). Finally, to the extent Marick disagreed with the trial
court's finding that Marick "acknowledged that equitable indemnification was the
only claim at issue," Marick needed to file a Rule 59(e), SCRCP, motion to
preserve the issue for appeal. See Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854,
859 (Ct. App. 1996) ("[T]he proper procedure for correcting factual errors in an
order is to file a Motion to Alter or Amend pursuant to Rule 59(e), SCRCP.").
Marick further contends the trial court erred in granting summary judgment on its
equitable indemnity cross-claim because a question of fact exists as to whether
Marick was at fault for the resulting construction defect. See Rule 56(c), SCRCP
(stating summary judgment is appropriate when "there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law"); Rock Hill Tel. Co. v. Globe Commc'ns, Inc., 363 S.C. 385, 389, 611 S.E.2d
1Only one defect stated in the SOA's complaint against Marick related to the work
performed by Hutch N Son and Upstate Utilities.
235, 237 (2005) (defining equitable indemnity as a "form of compensation in
which a first party is liable to pay a second party for a loss or damage the second
party incurs to a third party" (citation omitted)); Walterboro Cmty. Hosp. v.
Meacher, 392 S.C. 479, 486, 709 S.E.2d 71, 74 (Ct. App. 2011) ("The most
important requirement for . . . equitable indemnity is that the party seeking to be
indemnified is adjudged without fault and the indemnifying party is the one at
fault." (citation omitted)).
Hutch N Son and Upstate Utilities submitted expert affidavits that demonstrated
(1) their conduct did not cause the construction defect at issue in this appeal, but,
instead, (2) Marick was at fault for the resulting defect because it breached its
supervisory duty as general contractor. We agree with the trial court's finding that
Marick presented no evidence "to rebut [these] expert affidavits."
Marick argues it submitted expert deposition testimony to refute the evidence
presented by Hutch N Son and Upstate Utilities. We find the deposition testimony
relied on by Marick is too general to show there is a genuine issue of fact
remaining for trial. See Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607
S.E.2d 362, 364 (Ct. App. 2004) ("Once the moving party carries its initial burden,
the opposing party must come forward with specific facts that show there is a
genuine issue of fact remaining for trial." (citing Baughman v. Am. Tel. & Tel. Co.,
306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991))); 49 C.J.S. Judgments § 330
(2009) (stating "mere general statements and opinion by an expert are insufficient
to controvert a movant's properly presented evidence on a motion for summary
judgment"); 49 C.J.S. Judgments § 301 (2009) (providing "mere conclusory
allegations or speculation that fact issues exist will not defeat a properly supported
summary judgment motion"). Thus, we affirm the trial court's granting of
summary judgment.
AFFIRMED.
FEW, C.J., SHORT and GEATHERS, JJ., concur.