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Kennedy Funding, Inc. v. Pawleys Island North, LLC

Supreme Court of South Carolina
Oct 14, 2015
2015-MO-061 (S.C. Oct. 14, 2015)

Opinion

2015-MO-061

10-14-2015

Kennedy Funding, Inc., as predecessor-in-interest, and BNP Paribas, Respondents, v. Pawleys Island North, LLC, Will Darwin Wheeler, Peggy Wheeler-Cribb, and J. Mars Sapp, Defendants, Of Whom Pawleys Island North, LLC, Will Darwin Wheeler, and Peggy Wheeler-Cribb are Respondents, and J. Mars Sapp is Petitioner. Appellate Case No. 2015-001125

Daniel T. Brailsford, Thomas Whatley Bunch, II and Paul Hamilton Hoefer, all of Robinson McFadden & Moore, PC, of Columbia, for Petitioner. Robert Hope Jordan and Merritt Gordon Abney, both of Nelson Mullins Riley & Scarborough, LLP, of Charleston; for Respondents.


UNPUBLISHED OPINION

Submitted October 8, 2015

Appeal From Georgetown County Joe M. Crosby, Master-in-Equity

Daniel T. Brailsford, Thomas Whatley Bunch, II and Paul Hamilton Hoefer, all of Robinson McFadden & Moore, PC, of Columbia, for Petitioner.

Robert Hope Jordan and Merritt Gordon Abney, both of Nelson Mullins Riley & Scarborough, LLP, of Charleston; for Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

PER CURIAM:

Petitioner seeks a writ of certiorari to review the decision of the court of appeals in Kennedy Funding, Inc. v. Pawleys Island N., LLC, Op. No. 2015-UP-138 (S.C. Ct. App. filed March 11, 2015). We grant the petition, dispense with further briefing, vacate the holding of the Court of Appeals that the mortgage between Pawleys Island North, LLC, and Kennedy Funding, Inc. was not fraudulent and petitioner's lien, therefore, did not have priority, and remand this matter to the court of appeals to rule on the issue raised by petitioner.

The court of appeals erroneously based its holding as to lien priority on an irrelevant ruling that the mortgage between Pawleys Island North, LLC, and Kennedy Funding, Inc. was not fraudulent, an argument not raised to it. Accordingly, we vacate sections II and III of the court of appeals' opinion. State v. Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003) (an issue that was not preserved for review should not be addressed by the court of appeals, and the court's opinion should be vacated to the extent it addressed an issue that was not preserved). On remand, the court of appeals shall rule on petitioner's argument that the fraudulent conveyance between Will Darwin Wheeler and Pawley's Island North, LLC, rendered the mortgage void and, therefore, petitioner's lien is superior to Kennedy Funding, Inc. and BNP Paribas' lien.

VACATED AND REMANDED.

TOAL, C.J, PLEICONES, BEATTY, KITTREDGE and HEARN, JJ, concur


Summaries of

Kennedy Funding, Inc. v. Pawleys Island North, LLC

Supreme Court of South Carolina
Oct 14, 2015
2015-MO-061 (S.C. Oct. 14, 2015)
Case details for

Kennedy Funding, Inc. v. Pawleys Island North, LLC

Case Details

Full title:Kennedy Funding, Inc., as predecessor-in-interest, and BNP Paribas…

Court:Supreme Court of South Carolina

Date published: Oct 14, 2015

Citations

2015-MO-061 (S.C. Oct. 14, 2015)