Newtek Small Business Finance v. Mehta

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

Newtek Small Business Finance, Inc., Respondent,

v.

Kiritkumar H. Mehta, Appellant.

Appellate Case No. 2015-001633

Appeal From Orangeburg County
James B. Jackson, Jr., Master-in-Equity

Unpublished Opinion No. 2018-UP-091
Submitted September 8, 2017 – Filed February 28, 2018

REVERSED AND REMANDED

Andrew Sims Radeker, of Harrison & Radeker, P.A., of
Columbia, for Appellant.

Bryan D. Caskey, of Caskey & Imgrund, LLC, of
Columbia, for Respondent.

PER CURIAM: Kiritkumar Mehta appeals the circuit court's grant of summary
judgment in favor of Newtek Small Business Finance, Inc., arguing the circuit
court erred in excluding Mehta's affidavit from its consideration as extrinsic
evidence, finding inapplicable the third party exception to the parol evidence rule,
and depriving him of a full and fair opportunity to complete discovery. Mehta
additionally appeals the circuit court's denial of his motion to amend the pleadings.
We reverse and remand pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to whether the circuit court erred in granting summary judgment in favor of
Newtek, the circuit court acknowledged there was a material issue of fact as to the
remaining principal sum Mehta owed Newtek and expressed concern regarding
Quantum Mortgage Corporation's resale of the Sun Moon Inn (the Property).1 See
Rule 56(c), SCRCP ("The judgment sought shall be rendered forthwith 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 that the moving party is entitled to a judgment as a matter of law.");
Wilson v. Style Crest Prods., Inc., 367 S.C. 653, 656, 627 S.E.2d 733, 735 (2006)
("Even when there is no dispute as to the evidentiary facts, but only as to the
conclusions or inferences to be drawn from them, summary judgment should be
denied."); MacFarlane v. Manly, 274 S.C. 392, 395, 264 S.E.2d 838, 840 (1980)
("Summary judgment should be granted only where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not desirable."); Pee Dee
Stores, Inc. v. Doyle, 381 S.C. 234, 240, 672 S.E.2d 799, 802 (Ct. App. 2009)
("[S]ummary judgment is not appropriate when further inquiry into the facts of the
case is desirable to clarify the application of law."). Additionally, we find the
circuit court erroneously considered a draft short sale agreement in granting
Newtek's motion for summary judgment. See Stevens & Wilkinson of S.C., Inc. v.
City of Columbia, 409 S.C. 568, 577–78, 762 S.E.2d 696, 701 (2014) ("When a
writing, upon its face, imports to be a complete expression of the whole agreement,
and contains thereon all that is necessary to constitute a contract, it is presumed
that the parties have introduced into it every material item and term, and parol
evidence is not admissible to add another term to the agreement, although the
writing contains nothing on the particular item to which the parol evidence is
directed."); In re Estate of Holden, 343 S.C. 267, 276, 539 S.E.2d 703, 708 (2000)
(explaining that the parol evidence rule is a rule of substantive law rather than a
rule of evidence, and as such, "admission of evidence violating the parol evidence
rule is legally incompetent and should not be considered even if no objection is
made at trial").

1
In his capacity as president of Krishna of Orangeburg, Inc., Mehta contracted to
sell the Property to Quantum for $437,000. The short sale closed on September 10,
2013. Later that day, Quantum sold a portion of the Property for $605,000.
2. We also find the circuit court erroneously denied Mehta's motion to amend the
pleadings. Indeed, the circuit court acknowledged that granting the motion to
amend would have been proper had it denied summary judgment. See Rule 15(a),
SCRCP ("A party may amend his pleading once as a matter of course at any time
before or within 30 days after a responsive pleading is served . . . . Otherwise a
party may amend his pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires and does not
prejudice any other party."); Lee v. Bunch, 373 S.C. 654, 660, 647 S.E.2d 197, 200
(2007) ("A motion to amend is addressed to the sound discretion of the trial judge,
and the party opposing the motion has the burden of establishing prejudice.");
Brown v. James, 389 S.C. 41, 59–60, 697 S.E.2d 604, 614 (Ct. App. 2010)
("Courts have wide latitude in amending pleadings and '[w]hile this power should
not be used indiscriminately or to prejudice or surprise another party, the decision
to allow an amendment is within the sound discretion of the trial court and will
rarely be disturbed on appeal.'" (quoting Berry v. McLeod, 328 S.C. 435, 450, 492
S.E.2d 794, 802 (Ct. App. 1997))); id. ("The trial judge's finding will not be
overturned without an abuse of discretion or unless manifest injustice has
occurred." (quoting Berry, 328 S.C. at 450, 492 S.E.2d at 802)). Accordingly, we
remand this issue to the circuit court to determine whether Newtek's alleged
misrepresentations are actionable under a negligent misrepresentation theory as
contemplated in Mehta's amended complaint.

REVERSED AND REMANDED.2

WILLIAMS, THOMAS, and MCDONALD, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.