Beneficial Financial I v. Jon Windham

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Beneficial Financial I, Inc., successor by merger to
Beneficial Mortgage Co. of South Carolina, Appellant,

v.

Jon Windham, a/k/a Jon D. Windham; Frances
Windham, a/k/a Frances C. Windham; and Jerry Coker,
a/k/a Jerry L. Coker; Carolina Bank a/k/a Carolina Bank
& Trust Co., The United States of America, by and
through its agency, the Internal Revenue Service; and
The Citizens Bank, Defendants,

Of whom Jon Windham a/k/a Jon D. Windham is the
Respondent.

Appellate Case No. 2017-001954

Appeal From Florence County
Thomas A. Russo, Circuit Court Judge

Opinion No. 5753
Heard December 10, 2019 – Filed August 5, 2020

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Rebecca Kinlein Lindahl and Richard L. Farley, both of
Katten Muchin Rosenman, LLP, of Charlotte, North
Carolina, for Appellant.

Penny Hays Cauley, Esquire of Hays Cauley, PC of
Florence, for Respondent.
KONDUROS, J.: In this foreclosure action, Beneficial Financial I, Inc.
(Beneficial), lender, challenges the grant of summary judgment to Jon Windham,
borrower, on his counterclaims for violation of the South Carolina Unfair Trade
Practices Act (SCUTPA), fraud, negligent misrepresentation, intentional infliction
of emotional distress, and negligent and reckless training and supervision.
Beneficial argues Windham was not entitled to the award because Windham did
not meet his burden of proof for any of his counterclaims, even though Beneficial
did not submit evidence in opposition at the hearing. We affirm in part, reverse in
part, and remand.

FACTS/PROCEDURAL HISTORY

Windham entered into a Loan Repayment and Security Agreement (Agreement)
and a mortgage (Mortgage) with Beneficial Mortgage Company of South Carolina
dated June 25, 2002, in the amount of $191,912.61, to secure a loan for real
property in Florence County, South Carolina. The Agreement required Windham
to obtain title insurance and hazard insurance on the property, name Beneficial as
loss payee, and provide Beneficial with an endorsement. The Agreement also
stated Beneficial could place hazard insurance on the property if Windham failed
to maintain the insurance or failed to provide proof of the insurance. The
Agreement mandated Windham pay Beneficial the "[p]rincipal and [i]nterest
computed at the [c]ontract [r]ate . . . and any monthly insurance premium, if
elected."

On April 11, 2014, Beneficial filed a complaint against Windham to foreclose on
the Mortgage, claiming Windham failed to pay "installments of principal and
interest which became due on July 29, 2012," and seeking "the entire balance of
said principal and interest due and payable at once" and attorney's fees and costs.
Beneficial claimed in its "Notice Required by the Fair Debt Collection Practices
Act," the total debt Windham owed as of April 9, 2014, was $230,522.96.
Beneficial also sought reformation of the deed and Mortgage.1

1
Beneficial named Frances Windham, Jerry Coker, Carolina Bank, the United
States of America by and through the Internal Revenue Service, and the Citizens
Bank, in addition to Windham, in its complaint. Jon Windham, however, is the
sole respondent in this appeal.
Windham answered, asserting Beneficial "wrongfully force-placed insurance" on
the property "even though [Beneficial] had knowledge that said property was
already insured." Windham argued this added insurance cost "caused [his]
payment to increase and also resulted in [his] payments to only be credited to the
additional insurance cost rather than to the principal and interest due on the
mortgage" and "began the process of [his] initial delinquency." Furthermore,
Windham alleged Beneficial represented to him "that if he were to make bi-
monthly payments of $1,000.00 on the loan for six months, he would be offered a
loan modification"; however, Windham alleged Beneficial stopped accepting his
payments and did not contact him to modify the loan as promised. Windham
counterclaimed against Beneficial alleging violation of the SCUTPA, intentional
infliction of emotional distress, negligent training and supervision, reckless and
wanton training and supervision,2 breach of implied covenant of good faith and fair
dealing, fraud, and negligent misrepresentation.

Beneficial responded to Windham's counterclaims, admitting it "force[-]placed
insurance on its collateral and charged Windham with the cost of force-placed
insurance" but it did so "as permitted by the loan documents." Moreover,
Beneficial admitted Windham made some payments of $1,000 and those payments
were applied in accordance with the Mortgage.

During the discovery process, Beneficial repeatedly delayed Windham's deposition
of a Beneficial corporate witness. Ultimately, the parties entered into a consent
order (Consent Order) dated June 9, 2017, in which Beneficial agreed to produce
the corporate witness pursuant to Rule 30(b)(6), SCRCP, on July 10, 2017. The
parties also agreed that failure on the part of Beneficial to produce the witness
would "result in [Beneficial] being prohibited from offering any testimony in
support of [Beneficial's] foreclosure action and also prohibit [Beneficial] from
offering any testimony in defense of . . . Windham's counterclaims."

Beneficial's corporate representative did not appear for the deposition on July 10,
2017, and Windham filed a motion for summary judgment, a memorandum in
support, and his own affidavit. The circuit court held a hearing on August 31,
2017, and found Beneficial "failed to overcome the facts and law set forth by
[Windham]" and "there is no genuine issue of material fact in this matter and that

2
The circuit court awarded Windham summary judgment "on his claims of
negligent and reckless training and supervision," without expressly stating the term
"wanton." The parties also refer to negligent and reckless training and supervision
on appeal.
summary judgment is due to be granted in [Windham's] favor." This appeal
followed.

STANDARD OF REVIEW

"The purpose of summary judgment is to expedite disposition of cases which do
not require the services of a fact finder." Wright v. PRG Real Estate Mgmt., Inc.,
426 S.C. 202, 211, 826 S.E.2d 285, 290 (2019) (quoting George v. Fabri, 345 S.C.
440, 452, 548 S.E.2d 868, 874 (2001)). "When reviewing a grant of summary
judgment, appellate courts apply the same standard applied by the trial court
pursuant to Rule 56(c), SCRCP." Id. (quoting Turner v. Milliman, 392 S.C. 116,
121-22, 708 S.E.2d 766, 769 (2011)).

Rule 56(c), SCRCP, provides a circuit court shall grant
summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." "On
summary judgment motion, a court must view the facts in
the light most favorable to the non-moving party."

Id. at 211-12, 826 S.E.2d at 290 (alteration in original) (quoting George, 345 S.C.
at 452, 548 S.E.2d at 874).

"Summary judgment is not appropriate where further inquiry into the facts of the
case is desirable to clarify the application of the law." Singleton v. Sherer, 377
S.C. 185, 197, 659 S.E.2d 196, 202 (Ct. App. 2008). "When reasonable minds
cannot differ on plain, palpable, and indisputable facts, summary judgment should
be granted." Id.

When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise
provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If he does
not so respond, summary judgment, if appropriate, shall
be entered against him.
Rule 56(e), SCRCP (emphasis added).

Our supreme court has addressed the initial burden the moving party carries to
succeed on a summary judgment motion:

The grant of summary judgment is appropriate only if it
is clear that no genuine issue of material fact exists, that
inquiry into the facts is not desirable to clarify the
application of the law, and that the movant is entitled to
judgment as a matter of law.

A party seeking summary judgment has the burden of
clearly establishing by the record properly before the
[c]ourt the absence of a triable issue of fact. All
inferences from facts in the record must be viewed in the
light most favorable to the party opposing the motion for
summary judgment. A party who fails to show the
absence of a genuine issue of material fact is not entitled
to summary judgment even though his adversary does not
come forward with opposing materials.

Standard Fire Ins. Co. v. Marine Contracting & Towing Co., 301 S.C. 418, 422,
392 S.E.2d 460, 462 (1990) (citations omitted).

LAW/ANALYSIS

I. Preservation

Initially, Windham argues Beneficial did not preserve any issue on appeal.
Windham alleges because Beneficial "did not object to [his] affidavit and failed to
file any memorandum of law in opposition" to his motion, Beneficial failed to
preserve any issue regarding the summary judgment award on appeal. We
disagree.

[A]n issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial
court to be preserved for appellate review. . . . Error
preservation requirements are intended "to enable the
lower court to rule properly after it has considered all
relevant facts, law, and arguments."
Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000)
(quoting I'On v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724
(2000)).

However, our supreme court has found an issue is preserved for appeal when

[t]he trial judge's order granted respondents' motion for
summary judgment on precisely the grounds argued by
respondents at the summary judgment hearing. While
that order did not restate the ground on which petitioner
opposed the motion—a duty based on the existence of a
prior attorney-client relationship—the order explicitly
addresses that argument by ruling respondents "owed no
duty or obligation" to petitioner. This ruling is sufficient
to preserve petitioner's argument that respondents owed a
duty to petitioner, and petitioner was not required to file a
Rule 59(e)[, SCRCP,] motion to alter or amend in order
to preserve the issue for appeal.

Spence v. Wingate, 381 S.C. 487, 489, 674 S.E.2d 169, 170 (2009).

The Consent Order precluded Beneficial from "offering any testimony in defense
of . . . Windham's counterclaims," and it did not file a memorandum or affidavit
related to the summary judgment. However, the circuit court considered the
pleadings in its review of the evidence, including Beneficial's pleadings, which
attached the Agreement and Mortgage. Furthermore, the circuit court granted
Windham summary judgment on the grounds Windham argued at the hearing.
Therefore, the issue of whether summary judgment was proper based solely on the
evidence put forth by Windham was raised to and ruled upon by the circuit court.
Accordingly, we hold Beneficial's issue alleging error in the award is preserved for
review on appeal.

II. Judgment by Default

Beneficial contends the circuit court erred in granting Windham summary
judgment on his claims on the basis Beneficial did not submit evidence in
opposition to Windham's motion for summary judgment. Beneficial asserts the
circuit court granted summary judgment to Windham "by default." We disagree.
On a motion for summary judgment, the moving party carries the burden of proof
even when the nonmoving party does not submit any evidence in opposition.

A party seeking summary judgment has the burden of
clearly establishing by the record properly before the
[c]ourt the absence of a triable issue of fact. All
inferences from facts in the record must be viewed in the
light most favorable to the party opposing the motion for
summary judgment. A party who fails to show the
absence of a genuine issue of material fact is not entitled
to summary judgment even though his adversary does
not come forward with opposing materials.

Standard Fire Ins. Co., 301 S.C. at 422, 392 S.E.2d at 462 (emphasis added)
(citations omitted).

Windham submitted a memorandum and an affidavit in support of his motion for
summary judgment, and the circuit court heard the motion on August 31, 2017.
The circuit court's order provided it had reviewed "the pleadings, affidavits on file,
[Windham's] brief, and arguments of counsel." Additionally, Beneficial expressly
agreed in the Consent Order if it did not provide a Rule 30(b)(6), SCRCP, witness
it would be prohibited "from offering any testimony in defense of . . . Windham's
counterclaims." We, therefore, find Beneficial's argument the circuit court granted
summary judgment by default to be without merit.

III. Burden of Proof

Beneficial contends the circuit court erred in granting summary judgment to
Windham because he did not meet his burden of proof required by Rule 56(c),
SCRCP. We agree in part, disagree in part, and address each cause of action in
turn.3

A. SCUTPA

3
On appeal, Beneficial argues Windham is not entitled to summary judgment on
his claim of breach of the implied covenant of good faith and fair dealing, in
addition to Windham's counterclaims addressed herein. However, Windham did
not seek summary judgment on this claim, and the circuit court did not award
summary judgment on this claim.
Beneficial maintains the circuit court erred in granting summary judgment to
Windham on his counterclaim for a violation of the SCUTPA. We disagree.

The SCUTPA establishes: "Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are hereby declared
unlawful." S.C. Code Ann. § 39-5-20(a) (1985). "An unfair trade practice has
been defined as a practice which is offensive to public policy or which is immoral,
unethical, or oppressive." Wright v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498
(Ct. App. 2006) (quoting Wogan v. Kunze, 366 S.C. 583, 606, 623 S.E.2d 107, 120
(Ct. App. 2005)). "In order to be actionable under SCUTPA, the unfair or
deceptive act or practice must have an impact on the public interest. . . . 'An unfair
or deceptive act or practice that affects only the parties to a trade or a commercial
transaction is beyond the act's embrace.'" Skywaves I Corp. v. Branch Banking &
Tr. Co., 423 S.C. 432, 453, 814 S.E.2d 643, 655 (Ct. App. 2018) (quoting Noack
Enters., Inc. v. Country Corner Interiors, Inc., 290 S.C. 475, 479, 351 S.E.2d 347,
349-50 (Ct. App. 1986)), cert. denied, S.C. Sup. Ct. Order dated Nov. 9, 2018.

"After alleging and proving facts demonstrating the potential for repetition of
the defendant's actions, the plaintiff has proven an adverse effect on the public
interest . . . the plaintiff need not allege or prove anything further in relation to
the public interest requirement." Crary v. Djebelli, 329 S.C. 385, 388, 496
S.E.2d 21, 23 (1998).

An impact on the public interest may be shown if the acts
or practices have the potential for repetition. The
potential for repetition may be shown in either of two
ways: (1) by showing the same kind of actions occurred
in the past, thus making it likely they will continue to
occur absent deterrence; or (2) by showing the company's
procedures created a potential for repetition of the unfair
and deceptive acts.

Id. at 453-54, 814 S.E.2d at 655 (quoting Singleton v. Stokes Motors, Inc., 358 S.C.
369, 379, 595 S.E.2d 461, 466 (2004)). However, these are not the only two ways
impact on the public interest may be shown, rather "each case must be evaluated on
its own merits." Crary, 329 S.C. at 388, 496 S.E.2d at 23.

In the present case, we evaluate whether Windham proved there was no genuine
issue of material fact regarding his SCUTPA counterclaim. Windham asserted
Beneficial's conduct violated the SCUTPA by (1) "foreclosing on a tract of land
which [Beneficial] knows, or should know, was not to be secured by any mortgage
between [Beneficial] and [Windham]"4; (2) "force-placing insurance on
[Windham's] property when [Windham] already had insurance, causing
[Windham's] monthly payment to increase"; (3) "taking monthly payments from
[Windham] and applying them all to alleged interest and fees"; (4) "unilaterally
ceasing acceptance of payments from [Windham] on his loan"; and (5) "refusing to
offer [Windham] a loan modification, even after stating it would do so."

Windham asserted in his affidavit he maintained the required insurance on his
property and it was in effect when Beneficial force-placed insurance on the
property. He also attested he repeatedly provided proof the insurance was in effect
to Beneficial. Windham's counterclaim alleged the actions of Beneficial "have a
real and substantial potential for repetition and are a threat to the public interest,"
arguing Beneficial's actions "were in line with its policies and procedures,"
Beneficial "services numerous loans in South Carolina, as well as across the
country," and Beneficial's actions were "done under the authority of the same
policies, procedures, and leadership that are in effect relating to every other loan
managed, serviced and/or written by [Beneficial]." Significantly, in its motions to
dismiss and reply, Beneficial "admit[ted] that it force placed insurance on its
collateral and charged Windham with the cost of force-placed insurance, as
permitted by the loan documents."

We recognize the information provided to the circuit court consisted of the
pleadings, Windham's affidavit and memorandum, and a brief hearing and did not
include exhibits or testimonial evidence; however, accepting this uncontroverted
proof as presented, and giving the benefit of all reasonable inferences to Beneficial
as we must when reviewing a grant of summary judgment, we find there is no
dispute—Windham met his burden of proof on his counterclaim for a violation of
the SCUTPA by Beneficial. In its answer, Beneficial admitted it was in the
business of providing mortgages to homeowners. According to the pleadings and
Windham's affidavit, Beneficial force-placed hazard insurance on Windham's
home in breach of its contract with Windham, prejudicing Windham by raising his
mortgage payments so substantially Windham was no longer able to pay down his

4
Windham asserted in his answer and counterclaim the Mortgage wrongly covered
one and one-half acres, even though Windham "alerted the loan officer that the
Note was only to be secured by a mortgage on one acre of [his] property, not the
entire 1.5 acre lot." The Mortgage Windham signed, however, indicated the
property subject to the Mortgage is "approximately 1 ½ acres."
principal. Instead, Windham found himself with a pending foreclosure.
Beneficial's unfair practice of force-placing hazard insurance in violation of a
mortgage contract has the potential for repetition. See Crary, 329 S.C. at 388, 496
S.E.2d at 23 (1998) (holding evidence indicating mortgage broker had other
opportunities to enter into similar transactions was sufficient evidence to support a
finding of a SCUTPA violation); York v. Conway Ford, Inc., 325 S.C. 170, 173,
480 S.E.2d 726, 728 (1997) (holding allegation of car dealership's alleged
misrepresentation of a car's accident history was sufficient to survive directed
verdict motion for SCUTPA violation because the dealership was in the business
of selling cars; thus, "[c]ertainly the alleged acts or practices have the potential for
repetition"). Therefore, we affirm the circuit court's grant of summary judgment to
Windham on his counterclaim against Beneficial for a violation of the SCUTPA.

B. Fraud

Beneficial contends the circuit court erred in granting summary judgment to
Windham on his counterclaim for fraud. We agree.

Windham asserted Beneficial committed fraud by orally representing to him if he
made $1,000 payments twice each month for six months, Beneficial would modify
his loan; however, Beneficial did not modify the loan.

To establish a cause of action for fraud, the following
elements must be proven by clear, cogent, and
convincing evidence: (1) a representation of fact; (2) its
falsity; (3) its materiality; (4) either knowledge of its
falsity or a reckless disregard of its truth or falsity; (5)
intent that the representation be acted upon; (6) the
hearer's ignorance of its falsity; (7) the hearer's reliance
on its truth; (8) the hearer's right to rely thereon; and (9)
the hearer's consequent and proximate injury. The failure
to prove any element of fraud or misrepresentation is
fatal to the claim.

Schnellmann v. Roettger, 373 S.C. 379, 382, 645 S.E.2d 239, 241 (2007) (citations
omitted). "Failure to prove any element of fraud is fatal to the action.
Furthermore, '[f]raud cannot be presumed; it must be proved by clear, cogent, and
convincing evidence.'" Robertson v. First Union Nat'l Bank, 350 S.C. 339, 348,
565 S.E.2d 309, 314 (Ct. App. 2002) (citation omitted) (quoting Foxfire Village,
Inc. v. Black & Veatch, Inc., 304 S.C. 366, 374, 404 S.E.2d 912, 917 (Ct. App.
1991)).

Our supreme court's decision in Turner v. Milliman, 392 S.C. 116, 708 S.E.2d 766
(2011), provides targeted guidance. In Turner, the supreme court elaborated upon
the precept that neither a broken promise nor making a statement to do something
in the future, that is not done, can qualify as a fraudulent or negligent
representation: "Evidence of a mere broken promise is not sufficient to prove
negligent misrepresentation." Id. at 123, 708 S.E.2d at 769-70 (quoting Sauner v.
Pub. Serv. Auth. of S.C., 354 S.C. 397, 407, 581 S.E.2d 161, 166 (2003)).

In addressing the difference between that which is actionable or that which does
not qualify as fraudulent, the Turner court noted "to be actionable, a statement
must relate to a present or preexisiting fact, and cannot be predicated on unfulfilled
promises or statements as to future events." Id. at 123, 708 S.E.2d at 770. On the
other hand, "where one promises to do a certain thing, having at the time no
intention of keeping his agreement, it is fraudulent misrepresentation of a fact, and
actionable as such." Id. (quoting Davis v. Upton, 250 S.C. 288, 291, 157 S.E.2d
567, 568 (1967)).

The Turner court also noted breaking a contract does not constitute fraud, it is
rather the component of making a representation without any intention of going
through with the agreement that is actionable. Id. at 123-24, 708 S.E.2d at 770.
The party alleging such fraud must therefore provide additional evidence than
simply stating his opponent did not do that which he promised to do: "'Evidence of
mere nonperformance of a promise is not sufficient to establish either fraud or a
lack of intent to perform.' An inference of a lack of intent to perform a promise
can only be made when nonobservance of a promise is coupled with other
evidence." Id. (quoting Woods v. State, 314 S.C. 501, 506, 431 S.E.2d 260, 263
(Ct. App. 1993)). See also Bishop Logging Co. v. John Deere Indus. Equip. Co.,
317 S.C. 520, 526-27, 455 S.E.2d 183, 187 (Ct. App. 1995) ("Not every statement
made in the course of a commercial dealing is actionable at law. It is well settled
that to establish actionable fraud there must first be a false representation. The
false representation must be predicated upon misstatements of fact rather than upon
an expression of opinion, an expression of intention or an expression of confidence
that a bargain will be satisfactory." (citations omitted)).

Conversely, this court has reversed the award of summary judgment for fraud
when the record contained testimony from an employee admitting intentional
wrongdoing. Charleston Lumber Co. v. Miller Housing Corp., 318 S.C. 471, 480-
81, 458 S.E.2d 431, 437 (Ct. App. 1995). With such testimony, this court found
"there was sufficient evidence to create a question of fact as to whether or not [the
respondent] had made promises to the [appellants] with the present intention not to
fulfill them." Id. at 481, 458 S.E.2d at 437; see also Winburn v. Ins. Co. of N. Am.,
287 S.C. 435, 440, 339 S.E.2d 142, 146 (Ct. App. 1985) ("The truth or falsity of a
representation must be determined as of the time it was made or acted on and not at
some later date. Inferences of fact, like fullbacks on football teams, do not
ordinarily run backward." (citations omitted)).

Windham has not put forward evidence that Beneficial acted with knowledge
that it had no intention of keeping its promise to modify Windham's loan at the
time the representation was made. Therefore, we reverse the circuit court's
award of summary judgment on Windham's counterclaim for fraud in order for
further discovery and litigation to resume.

C. Negligent Misrepresentation

Beneficial argues the circuit court erred in granting summary judgment to
Windham on his counterclaim for negligent misrepresentation. We agree.

Windham summarily stated in his answer and counterclaim for negligent
misrepresentation Beneficial made a false representation in the course of its
business and Beneficial had a pecuniary interest in making those statements and
owed a duty to Windham to communicate truthful information, which Beneficial
breached. Further, Windham contended he relied upon Beneficial's representations
that if he made the $1,000 payments, Beneficial would offer a loan modification.
Windham asserted the result of Beneficial's actions caused him "pecuniary losses
including mental anguish, physical sickness and suffering, embarrassment and
humiliation."

In a claim for negligent misrepresentation, a plaintiff
must prove that:

(1) the defendant made a false representation
to the plaintiff; (2) the defendant had a
pecuniary interest in making the statement;
(3) the defendant owed a duty of care to see
that he communicated truthful information
to the plaintiff; (4) the defendant breached
that duty by failing to exercise due care; (5)
the plaintiff justifiably relied on the
representation; and (6) the plaintiff suffered
a pecuniary loss as the proximate result of
his reliance upon the representation.

Robertson, 350 S.C. at 349, 565 S.E.2d at 314 (quoting deBondt v. Carlton
Motorcars, Inc., 342 S.C. 254, 266-67, 536 S.E.2d 399, 405 (Ct. App. 2000)).

"Evidence of a mere broken promise is not sufficient to prove negligent
misrepresentation any more than it is sufficient to prove fraudulent
misrepresentation." Winburn, 287 S.C. at 442, 339 S.E.2d at 147.

In Sauner, 354 S.C. at 408, 581 S.E.2d at 167, the supreme court determined a
company's statement about what it would do in the future did not constitute a
misrepresentation.

[The company's] statement that it would establish fair
market value for the lots is a statement about the future.
The appraisals had not been conducted at the time it
made the statement. As such, it is not actionable as a
misrepresentation. To be actionable, "the representation
must relate to a present or pre-existing fact and be false
when made."

Id. (quoting Koontz v. Thomas, 333 S.C. 702, 713, 511 S.E.2d 407, 413 (Ct. App.
1999)). The court held, "Representations based on statements as to future events or
unfulfilled promises are not usually actionable." Id.

As with the claim for fraud, Windham did not prove Beneficial made a false
representation. Windham asserted Beneficial offered him a loan modification if he
made the payments. We find this statement was a representation as to a future
event, and Windham did not prove the representation was false when made.
Therefore, we reverse the finding of the circuit court granting summary judgment
to Windham on his claim for negligent misrepresentation.

D. Intentional Infliction of Emotional Distress

Beneficial contends the circuit court erred in granting summary judgment to
Windham on his counterclaim for intentional infliction of emotional distress. We
agree.
Our supreme court set forth the elements of the cause of action for the intentional
infliction of emotional distress in Hansson v. Scalise Builders of South Carolina,
374 S.C. 352, 356, 650 S.E.2d 68, 70 (2007) (quoting Ford v. Hutson, 276 S.C.
157, 162, 276 S.E.2d 776, 778 (1981)):

(1) the defendant intentionally or recklessly inflicted
severe emotional distress, or was certain, or substantially
certain, that such distress would result from his conduct;
(2) the conduct was so "extreme and outrageous" so as to
exceed "all possible bounds of decency" and must be
regarded as "atrocious, and utterly intolerable in a
civilized community;"
(3) the actions of the defendant caused plaintiff's
emotional distress; and
(4) the emotional distress suffered by the plaintiff was
"severe" such that "no reasonable man could be expected
to endure it."

"[W]hen ruling on a summary judgment motion, a court must determine whether
the plaintiff has established a prima facie case as to each element of a claim for
intentional infliction of emotional distress." Id. at 358, 650 S.E.2d at 71.

Our supreme court also established the claim of intentional infliction of emotional
distress carries with it a higher level of proof:

To permit a plaintiff to legitimately state a cause of
action by simply alleging, "I suffered emotional distress"
would be irreconcilable with this [c]ourt's development
of the law in this area. In the words of Justice Littlejohn,
the court must look for something "more"—in the form
of third party witness testimony and other corroborating
evidence—in order to make a prima facie showing of
"severe" emotional distress.

Id. at 358-59, 650 S.E.2d at 72.

The Hansson court found the court of appeals erred in reversing the award of
summary judgment to Hansson's employer on Hansson's intentional infliction of
emotional distress cause of action when Hansson alleged losing sleep, a diagnosis
of grinding his teeth while sleeping, and expenses for dental work. Id. at 359-60,
650 S.E.2d at 72. The supreme court ruled Hansson "failed to provide any legally
sufficient evidence in this case to show that his resulting emotional distress was
'severe' within the contemplation of this [c]ourt's mental anguish jurisprudence."
Id.

Here, Windham claimed intentional infliction of emotional distress in his answer
and counterclaims, asserting Beneficial either "intentionally or recklessly inflicted
severe emotional distress," or knew such would result from its conduct. Windham
asserted Beneficial's conduct was "part of a conscious scheme . . . to take
[Windham's] home away from him after [Beneficial] was the cause of the initial
delinquency by wrongfully force-placing insurance on [Windham's] home."
Windham alleges the resulting emotional distress was "so severe that no reasonable
person could be expected to endure it" and included "mental anguish, anxiety, and
humiliation" and seeks actual and punitive damages. In his affidavit, Windham
asserted:

I have spent the last three years suffering with the
constant fear that my home was going to be taken away
from me . . . . I have spent the last several years in
emotional distress, dealing with anxiety, embarrassment,
humiliation, and fear. I have also suffered physical
distress, including loss of sleep, headaches, pain and
suffering.

Windham did not sufficiently meet his burden to prove his distress was so extreme
to render summary judgment of his claim appropriate. "Under the heightened
standard of proof for emotional distress claims emphasized in Ford, [276 S.C. at
161, 276 S.E.2d at 778,] a party cannot establish a prima facie claim for damages
resulting from a defendant's tortious conduct with mere bald assertions." Hansson,
374 S.C. at 358, 650 S.E.2d at 72. Therefore, we reverse the circuit court's award
of summary judgment on Windham's claim for intentional infliction of emotional
distress.

E. Negligent and Reckless Training and Supervision

Finally, Beneficial asserts the circuit court erred in granting summary judgment to
Windham on his counterclaim against Beneficial for the negligent and reckless
training and supervision of its employees. We agree.
In his memorandum in support of his motion for summary judgment, Windham
asserted Beneficial "should have known that its failure to properly supervise the
individuals to which it assigned [Windham's] loan could result in the conduct
happened upon [Windham]."

In a negligence action, a plaintiff must show that (1) the
defendant owes a duty of care to the plaintiff, (2) the
defendant breached the duty by a negligent act or
omission, (3) the defendant's breach was the actual and
proximate cause of the plaintiff's injury, and (4) the
plaintiff suffered an injury or damages.

Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 135, 638 S.E.2d 650,
656 (2006).

Our supreme court "has long noted the 'troublesome question of the distinction to
be made in the degrees of negligence.'" Berberich v. Jack, 392 S.C. 278, 287, 709
S.E.2d 607, 612 (2011) (quoting Hicks v. McCandlish, 221 S.C. 410, 414, 70
S.E.2d 629, 631 (1952)). "'[N]egligence is the failure to use due care,' i.e., 'that
degree of care which a person of ordinary prudence and reason would exercise
under the same circumstances.' It is often referred to as either ordinary negligence
or simple negligence." Id. (alteration by court) (quoting Hart v. Doe, 261 S.C.
116, 122, 198 S.E.2d 526, 529 (1973)).

"Recklessness implies the doing of a negligent act
knowingly"; it is a "conscious failure to exercise due
care." If a person of ordinary reason and prudence would
have been conscious of the probability of resulting injury,
the law says the person is reckless or willful and wanton,
all of which have the same meaning—the conscious
failure to exercise due care. . . . The element
distinguishing actionable negligence from willful tort is
inadvertence.

Id. (quoting Yaun v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964)).

"[N]egligence may be so gross as to amount to recklessness, and when it does, it
ceases to be mere negligence and assumes very much the nature of willfulness."
Id. (quoting Jeffers v. Hardeman, 231 S.C. 578, 582-83, 99 S.E.2d 402, 404
(1957)).
A plaintiff in a civil case may have a number of causes of
action at his disposal through which he may seek to hold a
tortfeasor or other responsible party liable for his injury,
and this is no less the case when a plaintiff alleges that he
has been injured by an employee acting in the course and
scope of his employment.

James v. Kelly Trucking Co., 377 S.C. 628, 631, 661 S.E.2d 329, 330 (2008).

Just as an employee can act to cause another's injury in a
tortious manner, so can an employer be independently
liable in tort. In circumstances where an employer knew
or should have known that its employment of a specific
person created an undue risk of harm to the public, a
plaintiff may claim that the employer was itself negligent
in hiring, supervising, or training the employee, or that
the employer acted negligently in entrusting its employee
with a tool that created an unreasonable risk of harm to
the public.

Id.

We note the decision in Rickborn v. Liberty Life Insurance Co. also provides
guidance. 321 S.C. 291, 468 S.E.2d 292 (1996). In Rickborn, our supreme court
found the negligence of a life insurance company's employee "was imputable to"
the company. Id. at 305, 468 S.E.2d at 301. The supreme court considered acts of
wrongdoing on the part of the employee that were known to the company, such as
knowledge an application for insurance was incomplete, failure to determine a
corrected application was submitted, and evidence the company knew the
employee had "mishandled the preparation of other applications and was
considered by [the company] to be a below average sales agent." Id. at 303, 468
S.E.2d at 299. The supreme court found these facts proved the company "was
alerted to the fact that [the employee's] carelessness could cause harm and,
therefore, it breached a duty of care owed to [the applicant] by failing to properly
supervise [the employee]." Id.

Here, the record does not support Windham's award of summary judgment for
negligent or reckless supervision and training. Windham offered only his general
and unspecific assertion Beneficial failed to train and supervise its agents, without
any evidence of acts of wrongdoing by an employee, and without evidence an
employee's actions were imputable to Beneficial. Reviewing the evidence in the
light most favorable to Beneficial, Windham failed to show there was no genuine
issue of material fact as to whether Beneficial negligently or recklessly trained and
supervised its employees. Accordingly, we reverse the circuit court's grant of
summary judgment on Windham's negligent and reckless training and supervision
counterclaim against Beneficial.

CONCLUSION

We affirm the circuit court's award of summary judgment to Windham on his
counterclaim against Beneficial for a violation of the SCUTPA, finding Windham
proved there was no genuine issue of material fact regarding this claim. We
reverse the circuit court's award of summary judgment to Windham on his
counterclaims for fraud, negligent misrepresentation, intentional infliction of
emotional distress, and negligent and reckless training and supervision because
Windham failed to prove there were no genuine issues of material fact regarding
these counterclaims, and we remand these claims to the circuit court. Therefore,
the circuit court's order is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LOCKEMY, C.J., and HILL, J., concur.