Opinion
2012-UP-404
07-11-2012
McDonnell and Associates, PA, f/k/a McDonnell Law Firm, PA, f/k/a Edward G. McDonnell, PC, and Boomerang Title, Inc., Appellants, v. First Citizens Bank and Trust Company, Inc., Respondent.
L. Henry McKellar and Amy L. Neuschafer, of Collins & Lacy, PC, of Columbia, for Appellants. Wesley F. Few and Jake S. Barker, of Ellis Lawhorne & Sims, PA, of Columbia, for Respondent.
UNPUBLISHED OPINION
Heard May 9, 2012.
Appeal From Richland County No. 2010-172106, J. Michelle Childs, Circuit Court Judge
L. Henry McKellar and Amy L. Neuschafer, of Collins & Lacy, PC, of Columbia, for Appellants.
Wesley F. Few and Jake S. Barker, of Ellis Lawhorne & Sims, PA, of Columbia, for Respondent.
PER CURIAM:
McDonnell and Associates, PA, and Boomerang Title, Inc., (collectively, "McDonnell") appeal from the circuit court's order granting summary judgment in favor of First Citizens Bank and Trust Company, Inc. ("First Citizens") for McDonnell's failure to produce evidence demonstrating First Citizens' lack of ordinary care. We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. § 36-4-406(3) (2003) ("The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).") (emphasis added); Read v. S.C. Nat'l Bank, 286 S.C. 534, 540, 335 S.E.2d 359, 362 (1985) ("The burden of proving the bank's failure to exercise ordinary care under § 36-4-406(3) in paying the items rests squarely on the customer."); § 36-4-406 official cmt. 4 (2003) ("[E]ven if the bank succeeds in establishing that the customer has failed to exercise ordinary care, if in turn the customer succeeds in establishing the bank failed to exercise ordinary care in paying the item(s), the preclusion rule does not apply.") (emphasis added).
The negotiated checks occurred before the effective date of the 2008 amendment to section 36-4-406. Accordingly, the pre-2008 version of section 36-4-406 is applicable and cited herein.
AFFIRMED.
WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.