Kerr v. Branch Banking & Trust Co.
Kerr v. Branch Banking & Trust Co.
Opinion of the Court
In this consolidated appeal, the plaintiffs from four separate actions (collectively, Appellants) ask this Court to reverse the trial court’s order granting a motion to dismiss in favor of Branch Banking & Trust Company (BB & T) and BB & T employee James Edahl (collectively, Respondents). We affirm.
The facts, in the light most favorable to Appellants, are as follows.
In early 2007, Skywaves won several lucrative government contracts, and its Board of Directors determined that the company required more capital than BB & T provided at that time in order to meet the increased demand for their products. Skywaves therefore solicited funding proposals from various entities, including Wachovia, Hunt Capital, and BB & T.
In March 2007, Edahl, an employee at BB & T’s branch located in Charleston, held a meeting for Skywaves and its current investors, informing them:
that [BB & T] understood the short and long term capital needs of Skywaves; that Skywaves did not need a large bank or additional capital funding to continue its growth; that [Respondents] believed Skywaves was strategically positioned for success; that [Respondents] wanted to take Skywaves to a sale or stock IPO; and that BB & T would fund all the company’s financial needs.
Following this presentation, Skywaves decided to obtain the needed funding from BB & T. Skywaves therefore entered into a new and expanded factoring agreement, which provided
Several months later, in July 2007, Edahl made a presentation to Appellants, each of whom was a director, officer, or shareholder in Skywaves, in addition to a current or potential investor in Skywaves. During the presentation, Edahl told Appellants that BB & T believed that Skywaves would continue to develop and expand into new markets, that BB & T “was fully committed to providing all of Skywavesfs] short-term and long-term financial needs for growth,” and that BB & T would honor the new factoring agreement between itself and Skywaves. Appellants alleged that they each relied on these statements and were induced to “invest[] in the growth” of Skywaves via purchasing equity positions and making loans to Skywaves.
BB & T funded Skywaves in accordance with the new factoring agreement from March 2007 until January 2008. In January 2008, BB & T asserted that Skywaves had defaulted under the terms of the factoring agreement, and BB & T refused to honor any further financial commitments in accordance with the contract. In the absence of funding, Skywaves filed for bankruptcy.
As a result of the bankruptcy proceedings, Appellants lost their equity investments in Skywaves. Skywaves and Appellants therefore filed separate lawsuits against Respondents— Skywaves on its own behalf, and Appellants in their capacity as investors and employees of Skywaves.
Respondents filed motions to dismiss in each action. Appellants opposed the motions to dismiss and attached copies of the factoring agreement and correspondence between BB & T and Skywaves in support of their motions.
The trial court granted the motions to dismiss, finding all of Appellants’ claims were barred for various reasons.
Despite Appellants’ attempt to frame their claims as alleged misrepresentations made to them in their capacity as
It is well-established that banks owe a limited duty of care to their customers. See, e.g., Burwell v. S.C. Nat’l Bank, 288 S.C. 34, 40, 340 S.E.2d 786, 790 (1986) (finding that a bank-customer relationship is merely a lender-borrower relationship and is not fiduciary in nature unless the bank undertakes to advise its customers as part of the services that the bank offers); Regions Bank v. Schmauch, 354 S.C. 648, 671, 582 S.E.2d 432, 444 (Ct.App. 2003) (explaining that, if the bank does create a fiduciary relationship with its customer, the bank must only “disclose material facts that may affect its customer’s interests”). We find no reason to extend a bank’s limited duty to non-customers under these facts, where the non-customers’ claims are premised on disputed contractual obligations between a bank and its customer, but the non-customer is not an intended third-party beneficiary to that contract.
Thus, we conclude that while Skywaves may be able to show that, as a BB & T customer, the bank owed the corporation a duty, Appellants are not BB & T’s customers and therefore are not owed a similar duty. Accordingly, we affirm the trial court’s ruling that Respondents were entitled to judgment as a matter of law as to all of Appellants’ claims.
. We note that the trial court and both parties continuously referred to the motions at issue as "motions to dismiss.” However, Appellants
When reviewing a grant of summary judgment, appellate courts apply the same standard applied by the trial court pursuant to Rule 56(c), SCRCP, including viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party. Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011); Fleming v. Rose, 350 S.C. 488, 493-94, 567 S.E.2d 857, 860 (2002). "Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002).
. The action initiated by Skywaves to allocate fault for BB & T’s alleged breach of the new factoring agreement is not a part of this appeal.
. Appellants did not appeal the trial court’s dismissal of the SCUTPA claims. Therefore, the trial court’s findings regarding the SCUTPA claims are the law of the case, and we will not further address those claims. See In re Morrison, 321 S.C. 370, 372 n. 2, 468 S.E.2d 651, 652
. Additionally, Appellants Voytko (Skywaves’s CFO) and Konersmann (Skywaves’s CEO) claimed Respondents were responsible for $37,048.13 and $870,000.00, respectively, in lost salary and unreimbursed expenses.
. In dismissing Appellants’ claims, the trial court relied in part on section 37-10-107 (the lender statute of frauds). However, section 37-10-107 only applies to suits between lenders and borrowers, such as that between Skywaves and BB & T, and it therefore is irrelevant here. See S.C.Code Ann. § 37-10-107 (2002 & Supp. 2010); John L. Culhane, Jr., & Dean C. Gramlich, Lender Liability Limitation Amendments to State Statutes of Frauds, 45 Bus. Law. 1779, 1780, 1792 (1990) (discussing the purpose of the Model Lender Liability Statute, of which South Carolina’s lender statute of frauds is a word-for-word reproduction); cf Sea Cove Dev., L.L.C. v. Harbourside Cmty. Bank, 387 S.C. 95, 98, 691 S.E.2d 158, 159 (2010) (stating that the lender statute of frauds "prohibits certain legal and equitable actions arising out of the loan of money where there is no writing evidencing the parties’ alleged agreement” (emphasis added)).
. See Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002) (stating that duty is one element of a negligence claim); cf. Turner, 392 S.C. at 122-23, 708 S.E.2d at 769 (explaining that, to state a claim for negligent misrepresentation or fraudulent inducement, a party must establish, inter alia, that he had a right to rely on a statement made by the opposing party).
. Thus, despite Appellants' assertions to the contrary, the choice of law provision found in the factoring agreement and selecting North Carolina law is irrelevant as Appellants are neither parties nor intended third-party beneficiaries to the contract. See Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 445, 494 S.E.2d 827, 833 (Ct.App. 1997).
. Appellants are sophisticated investors who, between the six of them, invested almost $1.5 million in Skywaves over a protracted period of time. Cf. Poco-Grande Invs. v. C & S Family Credit, Inc., 301 S.C. 323, 325, 391 S.E.2d 735, 736 (Ct.App. 1990) (finding that a real estate business and a lawyer were "sophisticated and mature businessmen" who consequently had no right to rely on the alleged misrepresentations).
Reference
- Full Case Name
- James J. KERR, Crayton Walters, and J.T. Main, LLC v. BRANCH BANKING AND TRUST COMPANY, successor in merger to Branch Banking and Trust Company of South Carolina, a/k/a BB & T, and James Edahl, Respondents Ron Konersmann v. Branch Banking and Trust Company, successor in merger to Branch Banking and Trust Company of South Carolina, a/k/a BB & T, and James Edahl, Respondents John Voytko v. Branch Banking and Trust Company, successor in merger to Branch Banking and Trust Company of South Carolina, a/k/a BB & T, and James Edahl, Respondents Patricia Konersmann v. Branch Banking and Trust Company, successor in merger to Branch Banking and Trust Company of South Carolina, a/k/a BB & T, and James Edahl
- Cited By
- 3 cases
- Status
- Published