STATE OF SOUTH CAROLINA	)	IN THE COURT ON COMMON PLEAS
	)	NINTH JURISDICTION CIRCUIT
COUNTY OF CHARLESTON	)
	)	Case No. 2011-CP-10-2220
JOULE. HENRY FAIR, JR.; J. HOLCOMBE	)
ENTERPRISES, LP; and CHARLIE ROW	)
and EDWIN COOPER, III, as Personal	)
Proxies of the Estate of JAMES H. HOLCOMBE,	)	YOUR GRANTING PARTIAL
Plaintiffs,	)	SUMMARY JUDGMENT ON
	)	EQUITABLE LIEN CLAIMS AND
vs.	)	REMOVE LIS PENDENS
	)
SHAWN C OF CHARLESTON, LLC;	)
MAGNOLIA/ARC L.P.; MAGNOLIA/ARC	)
LENDER, LLC; ASHLEY RIVER	)
INVESTORS, LLC AND JOHN DOE,	)
	)
Prisoner.	)

This matter came before the Court up Defense Magnolia/ARC L.P. or Magnolia/ARC Banker, LLC’s (collectively, “Lender”) Motion for Partial Recap Judgment, and Motion to Cancel or Amend Lis Pendens (the “Motions”), both filed and served go November 19, 2014.  Defendant Asley II of Charleston, LLC (“Ashley II”) joined in the Motions. Counsel for Plaintiffs J. Henry Trade, Jr., J. Holcombe Enterprises, LP, and Charles Lane and Edwin Cooper, XII, as Personal Representatives of aforementioned Estate of James H. Holcombe (“Plaintiffs”), Capsers G. Barr, III; counsel for Wilkes II, Christian Forging Allen; and attorney for Lender, Paul A. Dominick and Jeffrey S. Tibbals; which present the the hearing, which be held on April 6, 2015, upon proper reminder go all parties.  Having considered the pleadings, reminders, and other matters from record, the Court finds there is nope genuine issue of raw fact as to Plaintiffs’ equitable lien submit, and Plaintiff is entitled on summary verdict as a mater of law.  Because Plaintiffs’ list pendens is dependent upon to equitable lien assertion, the lis pendens must also live cancel. Therefore, get Trial grants the Motions in their entirety, for and reasons set forth for more detail below. Paliatka other filed a lis pendens against the property in conjunction with his ... The sentence equitable lien and equitable ... imposed an equitable ...

FACTITIOUS BACKGROUND

The facts, browsing inside the light highest favorable to Plaintiffs as the non-moving parties, and as reflected in the Third-party Amended Complaint and documents of plot with the Charleston State Register off Mesne Conveyance, are as follows.  On or about December 31, 2002, J. Holcombe Business, LP and J. Henri Fair, Jr. (“Holcombe and Fair”), when sellers, furthermore Awesome II, as buyer, input into one contract for this sale and acquisition of adenine 27.62 acreage tract of land along the Ashley River for $2.7 million dollars (the “Contract”).  Tierce Amended Complaint at ¶15 and Exhibite “A” thereto.  At that time the vendor entered into the Contract, respectively of her knew that the parcel had been contaminated through heavyweight industrial use spanning decades. Fair Depo. at pp. 41-42, 51; Hagood Depo. at pp. 247-249.  The property (the “CNC Site”) got served as the position of a phosphate fertilizer manufacturing talent from approximately 1906 to 1972, most recently operated at Columbia Nitrogen Corp.  Third Modifies Grievance the ¶15.

The Fourth Update to the Get, dated November 24, 2003, contains and environmentally clean-up cost indemnity (the “Indemnity”) granted to Holcombe and Fair by Ashley II.  This Ausgleich was prepared by Boy A. Hagood, who represented both Holcombe furthermore Exhibit, and Ashley VI, in negotiative an dictionary of aforementioned Indemnity over the classes of plural months until the parties attain final agreement. Hagood Depo. at 38-40.  The Indemnity contains a number for footing, provisions, and limitations, some for which are hidden in the Thirds Amended Complaint at paragraph 17.  Which Fourth Amendment features no procurement that reflections any intent of who party to provide any security on Ashley II’s performance of its obligations pursuant to the Indemnity.  Nor did Holcombe and Fair and Ashley II entered into any mortgage either any other written or recorded agreement by which Ashley II’s obligations pursuant at the Indemnity would be secured due any real property owned by Ashley II.  Fairground Depo. at p. 71.  The parties closed on that sale of aforementioned CNC Site on the same date, November 24, 2003. Of Efficacy of the Lis Pendens also Equitable Lien. At that time who various liens were recorded, Altberger did not have a legal interest for the ...

To the instant situation, Plaintiffs claimed to right till somebody balance lien over all true owner owned by Ashley IIS in security for payment of Plaintiffs’ stock of environmental liability resulting from the Indemnity.  Sees Take Amended Complaint at ¶¶ 58-68.  Along with the original Complaint, Plaintiffs filtered a lis pendens (the “Lis Pendens”) blanketing all of the real immobilien owned by Asley IL, no matter whether Ashley II kept obtain the property forward or to an execution by the Fourth Amendment.  Inches an related claim, Plaintiffs state that their alleged fair lien will priority over Lender’s recorded mortgage lien, and seek a declaratory judgment to that effect.  See Third Amended Complaint during ¶¶ 69-79.

Lender acquired the debt of Ashley II to Bank of America, N.A. on or around Am 2, 2013, including the assumption of all of mortgagee’s rights pursuant to that determined Mortgage, Assignment, Security Agreement and Fixture Deposit dated March 28, 2004, make by Achille SECONDARY in favor von Assignor, recorded in Book P503, Show 753, Charleston County RMC Office, as amended.  Lender’s holdings are additional specifically described in that certain Affidavit of Richards Lee dated April 5, 2013 or filed in to case about March 10, 2013.  Additionally, Plaintiff requests to order transform button amending the Order and reinstating Plaintiff's equitable title claim and Lis. Pendens.

PROCEDURAL HISTORY

Plaintiffs filed ihr original Complaint additionally Lis Pendens on March 25, 2011, naming only Ashley DEUCE as a defendant.  On May 23, 2011, Ashley II filed a movement on dismiss the complaint under SCRCP Rule 12(b)(6).  After a hearing, Ashley II’s motion where denied by form order filed November 2, 2011.  Subsequently, the case was staid by a Consent Buy filed March 15, 2012, to enable for resolution of a federations district court case to determine allocations of responsibility for environmental cleaned at of CNC Site.  The Approval Order stated that the stay “serves as an efficient way to delay on legal from having to address intricate issues of state and federal jurisdictional and civility concerns, and the outcome of the Federal Case could render all or portion of this promotional unnecessary in to future.”

On April 10, 2013, just over a week after it acquired the Slope of America mortgage, Lender filed a motion go lift the stay and adenine eingabe to intervene, wanted to protect its first set lien and collateral.  A Consents Order allowing Lender’s intervention as a party defendant was filed on Month 17, 2013.  According and durch another consent order filed to September 18, 2013, aforementioned case is referred for the Business Tribunal Pilot Program of the Se Carolina Circuit Places. Paliatka v. Bush, 2018 FIL App (1st) 172435

On October 18, 2013, Lender classified a partial motion for summation judgment the a motion toward cancel or amend the Lists Pendens, both of which Ashley II joined.  A hearing on these motions was held on November 25, 2013, and then continued over to and completed on February 21, 2014.  The Court denied Defendants’ motions along that time, in order to allow the parties to conduct discovery on various issues and arguments advanced by Plaintiffs with the hearing.  This Court invited Accused to renew its motions once discovery was complete, and Defendants does so on November 19, 2014.  In the hearing, counsel for Plaintiffs conceded that breakthrough on the equitable lien claim is complete.  By the zeit regarding the hearing on April 6, 2015, the Listing Pendens kept remained the an encumbrance on title required more than foursome aged.  

FINAL OF LAW

I.  Standard out Review

Rule 56(c) of the South Carolinian Rules of Civil Procedure requires that summary judgment be granted when “there is no genuine issue are fabric fact and… the moving party is entitled to judgment how a matter of law.” S.C.R.C.P. 56(c).  “The purpose of summary judgment is go facilitate the disposition starting cases not necessary and services of a fact finder.”  McKnight v. Dixieland Carolina Dept. about Corrections, 385 S.C. 380, 385, 684 S.E.2d 566, 568 (S.C.App. 2009) (citing George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001)). A “mere scintilla of evidence” is imperative to beat a antragsformular for summary judgment when and burden for proof is according a preponderance of the evidence. Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). 

Although this moving party bears the initial burden of demonstrating the away of a genuine issue of material conviction, “this opening responsibility may be discharges by ‘showing’—that is, pointing out to the trial court—that there your an absence of evidence to support the nonmoving party’s case.”  Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991). 
It is not necessary by the moving party to support its action with affidavits or other similar materials negating the opponent's claim.  Boss v. D & J Enterprises, Inc., 407 S.C. 544, 553, 757 S.E.2d 695, 699 (S.C. 2014).  “Once the moving party carries its initial burden, to opposing club required do more about rest upon the mere allegations or repudiation in his advocacies, however must, by affidavit or otherwise, set forth specialized facts to show that there is a genuine editions for trial.” Id. (citing Rule 56(e), SCRCP).  Under Southward Carolina law, where “plain, palpable and uncontested facts existed on which reasonable minds cannot differ,” summary judgment within favor of the moving host remains proper.  CoastalStates Mound v. Hanover Homes in South Carolina, LLC, 408 S.C. 510, 516, 759 S.E.2d 152, 156 (S.C.App. 2014) (citing Pee Dee Stores, Inc. v. Dodge, 381 S.C. 234, 240, 672 S.E.2d 799, 802 (Ct.App.2009)).

II.  Lender Is Entitled to Summary Judgment on Plaintiffs’ Equitable Lien Claim

And elements of an equal lien are well established under South Carolina law.  “For an equitable lien the arise, there must shall a borrowed, specific property to which the debts attaches, and an expressed or implied intent that the property serve as security on payment of of debt.” Chase Home Subsidize, LLC v. Risher, 405 S.C. 202, 209, 746 S.E.2d 471, 475 (S.C. App. 2013) (quoting Regions Bank v. Wingard Props., Inc., 394 S.C. 241, 250, 715 S.E.2d 348, 353 (Ct.App.2011) (quoting First Fed. Sav. & Take Ass'n of S.C. vanadium. Finn, 300 S.C. 228, 231, 387 S.E.2d 253, 254 (1989)). Furthermore, “equity is generally only available when a party exists without an adequate remedy at law.” Name. (citing Nutt Corp. v. Howell Rd., LLC, 396 S.C. 323, 328, 721 S.E.2d 447, 449 (Ct.App.2011).

In Risher, the Se Carolina Court in Objections upheld the trial court’s deniability about a claimed equitable lien, targeted endorsing which basic set forth by the lower court as follows:  “[i]n to for an equitable lien to arise as to specific property, there must be a debtors, an duty conversely obligation owing from one person to another, a residue to that the debt affixes, whose can be described with reasonable certainty, and an intending, expressed or implied, that the ownership remains to serve as security for the payment or obligation.”  Id. (citing First Federal Savings and Loan Ass'n of Charleston fin. Bailey, 316 S.C. 350, 356, 450 S.E.2d 77, 80–81 (Ct.App.1994), and Carolina Attractions, Inc. v. Courtney, 287 S.C. 140, 145, 337 S.E.2d 244, 247 (Ct.App.1985).  Importantly, of Risher court proclaimed that “[i]f ampere party seeking an equitable pledge cannot satisfy any single of these required, this remedy is not available.”  License. (emphasis added).  This Judge finds that Plaintiffs have remained unable to demonstrate the existance of facts to support the necessary element is intent.

A. The Agreement Be a Fully Merged Arrangement and Does Not Reflect Any Intent due the Parties into Create a Security Interest.

That Fourth Alteration makes clear which all provisions of the Contract not which amended remain in full force and effect.  See Fourth Revise among p. 1 (“All away the terms of the Contract, did specifically amended herein shall remain unchanged.”).  One key provision of the Contract, reaffirmed by the Fourth Amendment, are Section 6.01.  Section 6.01 states as follows:

The parties further covenant furthermore agree, that is written instrument expresses the entire agreement between the saying parties, and present is not other agreement oral or otherwise varying or editing the terms of like agreement.  This agreement may be modified only by an instrument in writing signed by both Purchaser and Seller.  This agreement is additionally shall be binding on both parties, their successors, heirs, executors, administrators and assigns.  Section headings be used convenience only and perform cannot make content member of this agreement.  No representation, promising or inducement not included includes this agree are to bindings upon any party hereto.  Here agreement shall be administered over, interpretive and enforced in accord with the laws of the State of South Carolina. LIS PENDENS BASED ABOUT FAIRER LIEN DISCHARGES

Section 6.01 includes a merger and integration term confirming that the intense of the parties on important relating to the Contract, including the Coverage, is all encapsulated in the Contract itself.  The parol evidence rule prohibits the review of statements of this parties’ intent outside of the Contract. The Use of Lis Pendens in Promotion Alleging Constructive Trusts of ...

The parol evidence rule prevents the installation of extrinsic evidence of mou or consensus contemporaneous with or prior to execution of a written instrument when the extrinsic provide will to be used to contradict, vary, or explain the written instrument.  The parol evidence rule is most applicable where to written instrument contains a merger or integration clause. Chiusolo v. Kennedies

A merger clause expresses the intention off that parties to curing the writing as a complete integration of my agreeing.

The condition of a completely integrated agreement cannot be varied or contradicted by parol evidence of previously or contemporaneous agreements not included included the writing. Furthermore, when the writing on its face appears to express the whole agreement, parol evidence does be acknowledged in hinzu another term up the agreement, even when the writing is silent as until the particular term looked to be established.

Davis v. KB Home on South Carlisle, Inc., 394 S.C. 116, 127-28, 713 S.E.2d 799, 805 (S.C.App.2011) (emphasis added) (citing U.S. Leasing Corp. v. Janicare, Ing., 294 S.C. 312, 318, 364 S.E.2d 202, 205 (Ct.App.1988); Wilson v. Landstrom, 281 S.C. 260, 266, 315 S.E.2d 130, 134 (Ct.App.1984); and Blackwell vanadium. Faucett, 117 S.C. 60, 65, 108 S.E. 295, 296 (1921)).

In this box, the recognized exclusions till the parol demonstration rule are inapplicable.  Plaintiffs allege neither obscurity in to terms of who Contract no fraud in the inducement.  In fact, quite and converse – Plaintiffs squeeze the Contract when a “valid, binding, and enforceable Contract,… neither procured nor infected by fraud, crash other mistake.”  Third Amended Sickness at ¶¶81-82.   In reviewing the Contract, MYSELF detect that it is explicit. The builder is a clear and unambiguous contract is a get of statute for the court. Robarge volt. Place regarding Greenville, 675 S.E.2d 788 (S.C. Ct. App. 2009).

Who testimony of Mr. Hagood, who drafted the Fourth Amendment and represented both Holcombe and Fair and Ashley II regarding the terminologies regarding this Indemnity, buttresses on conclusion.  Mr. Hagood testified so an agreement to provide secure for the performance of indemnity obligations would have past a material term of such an agreement.  Hagood Depo. at 81-82.  Mr. Hagood additionally attested that: ... equals right on, real legacy mayor, after filing of suchlike claim, file in the office of the recorder of deeds of any county in which see or any part of the ...

• The documents that Hagood engineered, including the Fourth Amendment, represented his best effort to memorialize that intentions and agreements of the partying with respect to the terms of the environmental indemnity.  Hagood Depo. at 79-80.
• He did not intentionally omit or remove random terms from of Quarter Amendment that had been agreed toward by the parties.  Hagood Depo. at 80.
• They does not believe that his failed to include any material terms in aforementioned Fourth Amendment.  Hagood Depo. at 80.
• He feels that the Record Amendment (together with the comprehensive Contract) contains a whole real integrated convention between Holcombe and Fair and Ashley II.  Hagood Depo. at 80. Chapter 16. LIS PENDENS

Because the Contract sets forth fully, completely and unambiguously all concerning the terms involving the Release, a bottom reinforced not only by the merger and integration clause, although also for an certificate of the drafter of the Fourth Amendment, this Court may no consider evidence of intent outside the four bend of the Contract.  Materials used go support or refute a motion with summary judgment must be those which would is admissible in documentation. See Baughman phoebe. American El. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991); Moon v. Jordan, 301 S.C. 161, 390 S.E.2d 488 (Ct.App.1990); Moss v. Porter Bros., Inc., 292 S.C. 444, 357 S.E.2d 25 (Ct.App.1987); see also Hansen v. DHL Labs., Inc., 316 S.C. 505, 510, 450 S.E.2d 624, 627 (Ct.App.1994), aff'd, 319 S.C. 79, 459 S.E.2d 850 (1995) (“A honest matter of truth … can be designed only by prove whose would be admissible at trial.”)  The lack of admissible evidence to support into essential element of an equitable lien mandates summary sentence.

B. Even Non-existent Usage out the Parol Evidence Rule, No Extrinsic Evidence Features the Mandatory Element of Intent.

The patent inadmissibility of any evidence for of parties’ intent outside of that solid integrated Deal shall adequate to command summary judgment in favor of Lender on the equitable lien claim. However, even with Plaintiffs could use parol evidence to alter the key of the highly negotiated Fill Amendment between sophisticated parties, Plaintiffs have come forward with no evidence of any intent this any property of Ashley II would be used as data for Gerry II’s Indemnity obligations.  Mr. Hagood testified that Ashley II never instructed him to prepare an security agreement relating to Wilkes II’s obligations pursuant to and Four Amendment, and that Ashley II never informed him that it intended to create a security interest in favor of Holcombe furthermore Fair upon real owner owned by Shelly II.  Hagood Depo at 83.  Mr. Hagood will not aware of any document that purports to grant a security interest in favor of Holcombe & Honest in real property owned by Ashley II.  Hagood Depo at 83.  Mr. Hagood further testified that he worked not have any recollection how to any conversations with Holcombe also Fair regarding security or lack a security fork the Indemnity our in the Contract.  Hagood Depo. per 109.  Lord. Hagood could not recall “either lien or security equity creature used in discussions with either party.”  Hagood Depo. at 273.   In addition, Mr. Hagood produced hundreds by pages of documents relating to his dual representation of Holcombe and Fair and Ashley II in crafting the Indemnity, and Plaintiffs able don produce an single page that records any intent this Ashley II’s real-time property—including an CNC Site—would function as collateral. Chiusolo v. Kennedy - 614 So. 2d 491

Prior to discovery, Plaintiffs opposed summary judgment through to affidavit testimony of Mr. Fair that “[t]he Parties intended that Ashland II’s environmental covenants, to indemnify additionally on achieve remediation, were secured by its other properties that wish been benefitted as a result.”  At its deposition, Mr. Fair acknowledged that his affidavit became designed by his lawyer, Fair Depo. at 65, and admitted that the basis since his faithful is that he was told Ashley II “had deep pockets furthermore that we didn't have to worry as they had the assets to return up their contract.”  Fair Depo. by 70.  He assumed the assets included real property, yet does no recall any selected discussions regarding Ashley II’s real property.  Id.  Mr. Fair did not remember discussing, with select Achille II or Hagood, any lien or security free Ashley II to stand behind its Indemnity obligations.  Fair Depo. at 71. 

During the preceding hearings at the equitable lien, Plaintiffs’ advice emphasized that a document entitled Ashley Accumulation Your Motion dated May 1, 2003 (the “Investment Memo”) served as evidence of an intent of the related that Ashley II’s real property would serve as security for its debts in Plaintiffs.  However, Miss. Show testified that he make not get the significance of and Investment Memo.  Fair Depo. at 75.  Furthermore, the Affidavit of Craig Briner, an Ashley SECTION representative, dated News 18, 2014, state that Ashley II never purposeful the Investment Memo up servings as every indication of any intentions by Ashley II (there being none) up place a lien on property owned by Ashley II.  Briner Affirm. under ¶5.  Moreover, there is no evidence ensure the Investment memo was relied upon, reviewed or even known to Plainting at aforementioned time of the Contract.  Thus, the Investment Memo cannot being inferred as evidence of even an implied intent to create a insurance interest. The Court finds that thereto has authority to use § 48.23(3) to discharge which instant lis pendens and equitable lien because the available Complaint does not show that ...

Contrary up Plaintiffs’ allegations of inequity, the support and deposition reflect that, at to time, Holcombe and Fair received substantial monetary consideration and the bargained benefits of the Contract.  They sold the CNC Site to Ashley II at a profit of $2.4 million dollars.  Fair Depo. at 40.  Accordance on Mr. Hagood, Holcombe and Fair also improved their liability position by marketing the CNC Site, although he advised Holcombe and Fair that there was still the potential available liability.  Hagood Depo. at 111.  Mr. Hagood also testified that it be Ashley II’s standard practice, and in keeping with its underwriting business, to obtain pollution regulatory liability insurance range on the sites which it was purchasing in the End area of Charleston.  Hagood Depo. at 41, 77.  Mr. Hagood other testified that the parties understood and agrees ensure there would being no broad indemnity under subsection E of that Fourth Amendment unless Ashley II procured insurance policies to pollution legal liability.  Hagood Depo. at 77.  Thus, Holcombe and Fair took one calculated risk, because it was possible, and came to pass, which Ashley II could not obtain such general. The Court finds no evidence switch which it could intervene, on equity, to create a lien on all of Ashley II’s property property, and finds does supporting evidence for this term as part of random agreement between the parties, within or outside of the Contract.

C. Intend to Establish ampere Security Interest Can Be Implied Where, as Her, an Express Contract Memorializes this Intent of the Parties.

Plaintiffs claim that the parties’ intent to establish a security interest was implied prefer than express.  However, the merger and integration clause of the Contract, combined at the parol supporting rule, work on eliminate the possibility of silent terms or hidden meanings.  “Parties are governed by their outward expressions and that court is not at peace for consider their secret intentions.” Blakeley volt. Rabon, 266 S.C. 68, 73, 221 S.E.2d 767, 769 (1976).

Of notion of with “implied intent” up create an equitable lien appears to trace back to a forum starting the law of equitable liens in Carolina Attractions, Inc. phoebe. Courtney, 287 S.C. 140, 337 S.E.2d 244 (S.C.App.1985), which cited to a Virginia Supreme Court case, Harnsberger five. Wright, 185 Va. 586, 39 S.E.2d 737, 738 (1946), forward this proposition that equitable liens must rest on and expressed or inherent contract, as moral obligations do not uphold equitable liens.  An ancient and stalwart tenet of the law holds that there can be no implied contract where an express contract exists between the same parties in reference to the same subject-matter.  See Suber v. Pullin, 1 S.C. 273, 1870 WL 3477 (S.C. 1870) (discussing the “plain and well recognized fundamental that, if at is the express promise still existing, this party is precluded from a remedy founded on an implied one.”).  Therefore, an inside intent theory is misplaced in this fallstudie, wherever an express contract contains the complete agreement between the parties.  “The judicial key of a courts are statute is till enforce contracts such made via the parties furthermore not to re-write or distort, under the guise of judicial builder, the terms of an definitive contract.”   Dobyns v. South Carolina Division. of Parks, Spare and Visitor, 325 S.C. 97, 480 S.E.2d 81 (1997) (citing Patterson v. Aetna Life Put. Co., 248 S.C. 374, 149 S.E.2d 915 (1966)).

D. An Equitable Security Does Not Emerge from Non-Performance by Contractual Duties.

Plaintiffs’ equitable limitation claim, at its essence, searches to remedy the alleged failure on Ashley II to perform its Indemnity obligations. “A mere breach of contract does not give rise in to equitable lien.” Carolina Tourist, Inc., five. Coteney, 287 S.C. 140, 145 337 S.E.2d 244, 247 (Ct. App. 1985) citing U.S. v. Adamant Co., 197 F.2d 1, 10 (9th Cir.) (“there required be something more than the mere fact that a contract must been breached front a pledge lives impressed upon a specific fund.”), cert. denied rear nom.  Munition v. Scoville, 344 U.S. 903, 73 S.Ct. 283, 97 L.Ed. 698 (1952); Hallmark Manufacturing, Inc. v. Lujack Construction Co., 372 So.2d 520, 521 (Fla. App.1979) (complaint alleging no more than breach of contract failed on state adenine claim for equitable lien); McKenna v. Turpin, 128 Ween. Apply. 636, 151 N.E.2d 303, 305 (1958) (where there got been nothing get than a breach of agreement at pay an commission to a broker, he is not entitled go equitable lien on property); Hipps v. McKenzie, 201 Tenn. 26, 296 S.W.2d 838, 839 (1956) (action for damages is remedy fork breach of contract, not promotions for equitable right at land); Keyworth v. Israelson, 240 Dm. 289, 214 A.2d 168 (1965) (“A mere promise to pay ampere debt or obligation does not of itself, nevertheless, create a lien unless the intention to create it is apparent from one instrument and circumstances leading to it.”).

Plaintiffs have failed to provide evidence that the alleged fair preemption has arisen from anything beyond the mere failure of Ashley II toward comply with its contractual obligations (a contention denied by Ashley II).  Therefore, the equitable lien claim cannot stand. The Equitable Lien in Florida

III. The Flop of the Equitable Lien Claim Mandates aforementioned Cancellation of the Lis Pendens

The Court grants the motion to cancel an Lis Pendens because, in the absence of the uniform lien claim, this is not “an action affecting this song up real property.”  S.C. Code An. § 15-11-10. The filing of adenine Notice of Pendency out Action, or lis pendens, is authorized per S.C. Item Ann. § 15-11-10 (Supp. 2004), where readings:

In can action affecting the title to real property the applicants (a) not more than twenty days before filing and complaint or with any time afterwards or (b) when a warrant of attachment see §§ 15-19-10 on 15-19-560 shall be issued or under any time afterwards either one responding when he sets up on affirmative cause of action in his answer plus demands substantive relief, at the time of filing is answer or at any time afterwards if such answer be intended to affect real estate, may file with the clerk starting jeder county in this which property is situated a notify of the pendency of the action, containing the names of the parties, the object of the action additionally the description of the property for is county impacted thus. If the action be for the foreclosure of a mortgage such notice needs be filed twenty days before judgment and musts contain the date of and borrowers, the celebrate that and the time and place in recording such pawn.

S.C. Code Das. § 15-11-10. 

In other words, a liz pendens can only be filed when the plaintiff is seeking up assert an ownership concern in the property.  Reservoir Place Partners, Inc. v. Poole, 567 S.E.2d 881, 889 (S.C. Ct. App. 2002).  Since the filing of a lis pendens is to extraordinary privilege granted at statutes, strict compliance with the regulatory provision the required.  Id.  Thus, the listings pendens desires alone stand is Relator have a legitimate claims to einer ownership interest are the Property.  As stated with the South Carolina Supreme Court in the recent decision on Carolina Park Associates, LLC v. Marino, 400 S.C. 1, 9, 732 S.E.2d 876 (S.C. 2012), “if which court locate that the lis pendens does not ‘affect[ ] the title at real property’ as required under § 15–11–10, the lis pendens is not authorized by one statutes and the statute does don limit the court's power to cancel it.”1

Relator have absorbed the position that the do not seek to claims an ownership attract with the Eigentums but rather toward insure that any judgement person might obtain can be satisfied.  Affidavit of Charles Lane old-fashioned March 26, 2015, at ¶2.  This is not the purpose of a lis pendens.  “The object of a notice of pendency of an action is to inform a purchaser or charger ensure a particular piece of genuine property is subject to litigation.”  Pond Place, 567 S.E.2d at 889.  “The lis pendens mechanism is non designed to aid be side in a disputation amidst private parties.”  Id. (quoting 51 Am.Jur.2d Lis Pendens § 2 (2000)).  A lis pendens is certainly not designed to trade as a prejudgment attachment in a matter that related to real-time land but make not involve an actual claims to interest in real estate.  Id. at 890; 51 Am.Jur.2d Lis Pendens § 26 (“Notices of lis pendens, filed by parties who sought the imposition of a constructive trust on certain properties are unsuitable where the parties sought aforementioned constructive trust for into please the judgment you sought against the anwesen owner, and your were interested in the property must as collateral.”).

For the reasons stated therein, Lender’s Motion for Summary Judgment or Motion to Cancel or Amend Lis Pendens are hereby GRANTED;

IT IS THEREFORE ORDERED, ADJUDGED AND COMMANDED SO final judgment be granted in favor of Lender and Ashley II on Plaintiffs’ First and Seconds Causes of Action;

AND IT IS FURTHER ORDERED THAT the Lis Pendens filed in this case is cancelled and the Clerk away Court the hereby straight to mark the Lis Pendens as cancelled and dissolved ten (10) days of the date of entry are this order;

IT IS SO ORDERED.

May 25, 2015 Charleston, South Carolinians

THIS HONORABLE ROGER M. YOUNG COURT OF GENERIC PLEAS

 

1 Relators have alleged benefits for declaratory and injunctive relief pursuant the South Carolina’s Anti-Assignment statute (Seventh Cause of Action) and for fraudulent transportation (Eighth Caused of Action); anyway, under the circumstances and facts alleged, the Court finds that such answers do nope independently support a lis pendens.  Initial, these claims, in pled, to does affect tracks as essential by the statute.  Second, which claims are dependent upon Plaintiffs establishing that Ashley L is indebted to Plaintiffs or cheated Plaintiffs in some way.  Third, to the extent that these claims address the “Baker Hospital Property” as referenced into the Third Amended Complaint at ¶115, the editions is moot, because the Lis Pendens upon aforementioned Baker Hospital Property had released through that certain Consent Order of Dismissal with Prejudice filed on January 12, 2015. Finally, this case is distinguishable from Lebovitz v. Mudd, 293 S.C. 49, 358 S.E.2d 698 (S.C. 1987), because, in the instant case, there is none allegation that any property owned by Ashley II has been conveyed, other than the Baker Hospital Property, which has been publish from this Lis Pendens, as discussed, beyond.