In The Court of Appeals

Michael R. and Donna S. Ugino, Appellants,


Carl W. Peter, H. Stephen Ray, individually and in his capacity as an agent for Wachovia Mortgage Corporation, and Wachovia Mortgage Corporation,

Of whom Carl W. Peter is Respondent.

Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2011-UP-364
Submitted May 1, 2011 – Filed June 30, 2011   


Richard J. Breibart, of Lexington, for Appellant.

James Edward Bradley, of W. Columbia, for Respondent.

PER CURIAM: In this action for breach of contract and other claims arising from a failed real estate transaction, Michael R. and Donna S. Ugino appeal the grant of summary judgment to Carl W. Peter.  We affirm.[1]

1.  The Uginos argue Peter's summary judgment motion addressed only their contract claims and the trial judge therefore should not have dismissed their tort claims as well.  We disagree with these assertions.  Peter's summary judgment motion was not restricted to any particular cause of action asserted by the Uginos.  Furthermore, the motion was based in part on the failure of the financing condition in the contract.  An absence of a genuine issue of material fact concerning this ground would absolve Peter of not only the breach of contract claim but also of the Uginos' claim for breach of contract accompanied by a fraudulent act.  See Connor v. City of Forest Acres, 348 S.C. 454, 465, 560 S.E.2d 606, 612 (2002) (stating that one of the elements for a claim of breach of contract accompanied by a fraudulent act is a breach of contract).  The Uginos' fraud and negligence causes of action arose from Peter's agreement to purchase their home, an agreement that was ultimately excused under the provisions of the parties' contract by the failure of the financing condition, a circumstance that was not anticipated when the contract was made.  See Koontz v. Thomas, 333 S.C. 702, 713, 511 S.E.2d 407, 413 (Ct. App. 1999) (stating a negligent misrepresentation "must relate to a present or pre-existing fact and be false when made").  Likewise, the gravamen of the Uginos' civil conspiracy claim was Peter's refusal to perform under the contract, a refusal Peter asserted was based on the parties' agreement and Wachovia's rejection of his financing application.  Given these circumstances, we hold the trial judge correctly considered all causes of action asserted by the Uginos in their complaint when he determined that Peter was entitled to summary judgment.  See Camp v. Camp, 386 S.C. 571, 575-76, 689 S.E.2d 634, 636 (2010) (holding that the particularity requirement of Rule 7(b)(1), SCRCP is to be read flexibly in light of the circumstances of each case and should not be applied in an overly technical fashion when doing so would not serve the purpose behind the rule).

2.  The Uginos argue the trial judge erred in holding Peter's performance under the contract was excused because of Peter's inability to obtain financing for his purchase of their home.  They base their argument on the absence of any provision in the contract stating that Peter needed to secure financing for one hundred percent of the purchase price and cite a provision in the contract indicating the amount to be financed and the amount to be paid down at closing were "to be determined."  The Uginos have correctly described these particular contract terms; however, we disagree that these terms are sufficient to prevent the grant of summary judgment.  Although the contract may not have required Peter to obtain financing for the entire contract price, it was contingent on both Peter's ability to obtain a mortgage from "the lender of his choice" and "the Property appraising, according to the Lender's appraisal or other appraisal as agreed, for the selling price or more."  Here, Peter's chosen lender did not appraise the property "for the selling price or more."  Although, as the Uginos note in their reply brief, Peter himself commissioned an appraisal that indicated the value of the subject property exceeded the contract price, he did not "agree" to this appraisal and there is no evidence that he acted unreasonably in rejecting it.  See M&M Group v. Holmes, 379 S.C. 468, 476, 666 S.E.2d 262, 266 (Ct. App. 2008) (indicating that the force and effect of a legal instrument is to be determined from the language in the instrument if the language is plain, unambiguous, and capable of only one interpretation).

3.  Finally, the Uginos contend that other lenders would have provided financing for one hundred percent of the purchase price and that Peter therefore violated an implied covenant of good faith and fair dealing in refusing to avail himself of these possibilities.  We disagree.  See Adams v. G.J. Creel & Sons, 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995) (acknowledging that "[t]here exists in every contract an implied covenant of good faith and fair dealing," but also stating "there is no breach of an implied covenant of good faith where a party to a contract has done what provisions of the contract expressly gave him the right to do").  Here, Peter's contractual obligations were set forth in the parties' agreement, which further provided that his purchase of the Uginos' home was contingent on a condition precedent that was not met.  Peter applied for financing from the lender of his choice, as the contract required him to do.  When the lender he chose appraised the property for less than the selling price, Peter was not required to complete the sale.


HUFF, WILLIAMS, and THOMAS, JJ., concur.

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