Plaintiff filed the summons and complaint in this matter on October 20, 2017, asserting causes of action for Conversion, Unjust Enrichment, Money Had and Received, Promissory Estoppel, Quantum Meruit, Declaratory Judgment, Fraudulent Conveyance, and Quiet Title. Defendant through her then counsel Alan D. Toporek filed an answer on November 28, 2017. Defendant Wells Fargo Bank N.A., filed an answer on August 15, 2018.
Consequently, Plaintiff moved to enforce a settlement agreement by motion filed July 10, 2019. By Order of the Honorable Roger M. Young, Sr., filed October 10, 2019, the Plaintiff’s motion to enforce settlement was continued to give Defendant an opportunity to find new counsel. On November 1, 2019, Defendant filed a letter to the court informing the court she would be proceeding pro se. The Motion to enforce settlement was scheduled to be reheard on December 16, 2019 but continued upon the motion of Defendant filed November 27, 2019. The Motion was scheduled to be heard on January 27, 2020 but continued upon the motion of Defendant filed January 27, 2020.
By order filed February 12, 2020 the matter was referred to the Master in Equity. On February 18, 2020 Defendant filed a motion to continue the motion to enforce settlement. On February 24, 2020, Plaintiff’s counsel emailed this court attaching the Defendant to the email and requesting that Plaintiff’s motion to enforce settlement be scheduled. On February 27, 2020, Defendant sent a response email to this Courts office requesting that Plaintiff’s motion not be scheduled for medical reasons. Plaintiff’s counsel responded to Defendant’s email to the court and requested the motion be scheduled at or around March 31, 2020 giving Defendant and opportunity to address any medical concerns. The court scheduled the motion to be heard March 31, 2020. The motion was then continued as a result of the pandemic. The motion to enforce settlement was then rescheduled to be heard by this Court on June 25, 2020. The motion was heard remotely by this Court on June 25, 2020, wherein the Defendant and Plaintiff both appeared. This Court filed a form four order on June 25, 2020, which stated this Court would take the matter under advisement and that Defendant had ten days to retain counsel who would then have five days to file a written response to the motion on Defendant’s behalf. The Court filed an order denying Plaintiff’s motion to enforce settlement on July 8, 2020.
On October 6, 2020, Plaintiff filed a motion for summary judgment. On October 7, 2020, Plaintiff’s counsel emailed this Court’s office attaching Defendant to the email and requested that the motion for summary judgment be scheduled. This Courts office responded to the email on the same date stating the matter could be scheduled to be heard remotely on November 5, 2020. On October 12, 2020, Defendant responded to the Court’s email stating she was unavailable during the month of November to appear for a hearing due to medical issues. At the Defendant’s request this Court did not schedule the motion for summary judgment to be heard on November 5, 2020.
On November 12, 2020. This Court emailed both parties that motion for summary judgment would be scheduled to be heard on January 7, 2021. On November 12, 2020, Defendant responded to this Courts email requesting that if the motion had to be scheduled at this time that it be scheduled at the end of January. On December 28, 2020, Defendant emailed this Court and requested that the hearing on Plaintiff’s motion for summary judgment be continued due to Defendant’s medical issues. At the request of the Defendant this Court continued the motion.
On March 31, 2021, Plaintiff’s counsel emailed this Court’s office attaching Defendant to the email and requested that the motion be rescheduled. On March 31, 2021, Defendant responded to the email requesting the motion not be rescheduled at this time for medical reasons. On April 1, 2021, the Court responded to Plaintiff and Defendant’s emails stating the motion for summary judgment would be scheduled to be heard on May 11, 2021 at 12:00 p.m.
On Friday May 7, 2021 at 5:07 p.m., Defendant emailed this Court’s office requesting the motion hearing be continued for medical reasons. On Monday 10, 2021, this Court responded to Defendant’s email stating that the hearing would proceed forward on May 11, 2021, and that Defendant was welcome to appear either remotely or in person.
On May 11, 2021, this Court began hearing Plaintiff’s motion for summary judgment in Defendant’s absence. Plaintiff and Plaintiff’s counsel were present. Upon hearing Plaintiff’s motion this Court issued an order from the bench granting the motion for summary judgment and requested that Plaintiff’s counsel draft a proposed order and submit it to the Court.
- PLAINTIFF FAILED TO CONSIDER MEDIATION
“A party may be found in contempt of court for the willful violation of a lawful court order. Before a party may be found in contempt, the record must clearly and specifically show the contemptuous conduct. The moving party must show the existence of a court order and the facts establishing the respondent’s noncompliance with the order. At the same time, we remain cognizant that ‘contempt is an extreme measure and the power to adjudge a person in contempt is not to be lightly asserted.’” Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct.App. 2004) (internal citations omitted).
It follows; “Contempt results from a willful disobedience of a court order. Willful disobedience requires an act to be done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d 515, 518 (Ct. App. 2008).
“Any adult found in contempt of court may be punished…” Haselwood v. Sullivan, 283 S.C. 29, 32-33, 320 S.E.2d 499, 501 (Ct.App. 1984) (“A determination of contempt is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support. “).
In the instant action, the Probate Court Ordered Plaintiff to take all issues to mediation. However, in blatant disregard of the Probate Court’s Order, Plaintiff has disregarded the Order to take Plaintiff’s matter to mediation. It is worth noting that Defendant would have welcomed mediation on all issues. Accordingly, Plaintiff should be held in contempt of Court and Plaintiff’s Motion for Summary Judgment be dismissed.
- PLAINTIFF MISCONSTRUED DEFENDANT’S CONTINUANCES.
“[t]he authority of the court to grant continuances and to determine the order in which cases shall be heard is derived from its power to hear and decide cases. This adjudicative power of the court carries with it the inherent power to control the order of its business to safeguard the rights of litigants.” Williams v. Bordon’s. Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980).
It follows; therefore, continuances exist to help protect the rights of litigants. This is evidenced where oftentimes; higher Courts have upheld denials of continuances where the said Courts find that the denial of continuance infringed on a litigant’s rights. For instance, in the Supreme Court took note that it “has repeatedly upheld denials of motions for continuances where there was no showing that any other evidence on behalf of the defendant could have been introduced, or that other points could have been raised, if more time had been granted to prepare for trial.” State v. McKennedy, 348 S.C. 280, 559 S.E.2d 850 (2002). (citing State v. Williams, 321 S.C. 455, 459, 469 S.E.2d 49, 51 (1996)). The court, in Skeen v. State, 325 S.C. 210, 481 S.E.2d 129 (1997).
In the instant case, Plaintiff omitted Defendant’s requests for Mediation and presented Defendant’s continuances as a pattern of practice, not as the result of her requests for rescheduled Hearings within weeks of her five surgeries. It is worth noting that Continuances are granted upon a showing of good and sufficient legal cause. Defendant has been unwell for a long time. Therefore, the continuances were rightly requested. Accordingly, Plaintiff’s Motion for Summary Judgment should be denied because several issues remain uncanvassed.
- DEFENDANT FAILED TO APPEAR FOR HEARING ON TIME BECAUSE SHE WAS UNWELL.
“The decision whether to set aside an entry of default or a default judgment lies solely within the sound discretion of the trial judge.” Sundown Operating Co. v. Intedge Indus., 383 S.C. 601, 606, 681 S.E.2d 885, 888 (2009). “The trial court’s decision will not be disturbed on appeal absent a clear showing of an abuse of that discretion.” Id. “An abuse of discretion in setting aside a default judgment occurs when the judge issuing the order was controlled by some error of law or when the order, based upon factual, as distinguished from legal conclusions, is without evidentiary support.” Id. at 607, 681 S.E.2d at 888; (quoting In re Estate of Weeks, 329 S.C. 251, 259, 495 S.E.2d 454, 459 (Ct.App.1997)).
“For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Rule 55 – Default, S.c. R. Civ. P. 55
In the instant action, the Defendant was late to Court because she was unwell. Notably, she was hospitalized the next day for stroke symptoms. The court abused its discretion for failing to probe why Defendant did not turn up for the hearing. Defendant has sufficient proof of her medical condition. Defendant is entitled to a reversal of any default Order/judgment because Defendant failed to appear for the hearing on time for good cause. Accordingly, the Defendant prays this Honorable Court dismisses Plaintiff’s Motion for Summary Judgment.
- THERE ARE GENUINE ISSUES OF MATERIAL FACTS HENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED
“The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact.” Singleton v. Sherer, 377 S.C. 185, 197, 659 S.E.2d 196, 202 (Ct. App. 2008). And the opponent “must come forward with specific facts showing … a genuine issue for trial.” Id. at 197–98, 659 S.E.2d at 203. Accordingly, “[u]nder Rule 56(c), the party seeking summary judgment has the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Baughman v. Am. Tel.& Tel. Co., 306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991). “This initial responsibility may be discharged by pointing out to the trial court that there is an absence of evidence to support the nonmoving party’s case.” Id.
“[A]ssertions as to liability must be more than mere bald allegations … in order to create a genuine issue of material fact.” Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 17, 677 S.E.2d 612, 616 (Ct.App.2009).
- Defendant is not liable for Plaintiff’s Money Had and Received & Unjust Enrichment claims.
“An action for money had and received exists where a defendant has money belonging to the plaintiff which in equity should be repaid to the plaintiff”. Jackson v. White, 194 F. 677 (4th Cir. 1912); 42 C.J.S. Implied Contracts § 11 (1991). “In order to recover on a count for money had and received, . . . the plaintiff must show he has equity and conscience on his side, and that he could recover in a court of equity.” Marvin v. McRae, 10 S.C.L. (Rice) 171, 176-77 (1839); accord Cary v. Curtis, 44 U.S. 236, 247 (1845).
“The doctrine of unclean hands precludes a plaintiff from recovering in equity if he acted unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.” First Union Nat’l Bank of S.C. v. Soden, 333 S.C. 554, 568, 511 S.E.2d 372, 379 (Ct.App. 1998).”The expression `clean hands’ means a clean record with respect to the transaction with the defendants themselves and not with respect to others.” Arnold v. City of Spartanburg, 201 S.C. 523, 532, 23 S.E.2d 735, 738 (1943). The rule must be understood to refer to some misconduct concerning the matter in litigation of which the opposing party can, in good conscience, complain in a court of equity. Id.
First, Plaintiff has not provided sufficient facts to prove Defendant’s liability under Money Had and Received and Unjust Enrichment Claims. Notably, Plaintiff’s assertions are mere allegations for they neither refer to, nor identify any evidence for their allegation. Also, Plaintiff is barred from claiming relief under equity because of the “clean hands doctrine.” Notably, Plaintiff disregarded the Probate Court’s Order requiring Plaintiff to take all issues to Mediation. Plaintiff’s conduct amounts to a blatant disregard to the authority of the Courts and the rule of law. Therefore, Plaintiff’s claim fails.
Defendant has raised sufficient allegations and facts to establish that Plaintiff is not entitled to the Motion for Summary Judgment. Accordingly, Defendant asks the Court to deny the Plaintiff’s Motion in its entirety.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing on the opposing party(ies) by depositing a copy, contained in a first-class, postage-paid wrapper, into a depository under the exclusive care and custody of the United States Postal Service, addressed as follows:
[ENTER OTHER PARTY’S ADDRESS]
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