S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Wilder Corporation f/k/a
Wilder Mobile Homes,
Inc. Respondent
v.
Klaus Wilke and Rita E.
Wilke Petitioners
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Lexington County
George W. Jefferson, Master-In-Equity
Opinion No. 24770
Heard December 16, 1997 - Filed March 9, 1998
AFFIRMED
Edward M. Woodward, Jr., of Woodward, Cothran
& Herndon, of Columbia, for petitioners.
John F. Emerson and William H. Short, Jr., both of
Sinkler & Boyd, P.A., of Columbia, for respondent.
TOAL, A.J.: This case involves the foreclosure of a bond for title.
Respondent, Wilder Corporation ("Seller"), brought this foreclosure action
against petitioners, Klaus and Rita Wilkes ("Buyer"), as a result of Buyer's
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indebtedness arising out of the sale of property. The master-in-equity found
in favor of Buyer. The Court of Appeals affirmed in part and reversed in
part. Buyer appeals the Court of Appeals' decision. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
In 1979, Seller agreed to sell its mobile home park to Buyer in
exchange for Buyer's motel and the additional sum of $635,000. On January
25, 1980, the parties signed a bond for title memorializing the exchange and
the $635,000 debt. The bond for title provided that Buyer would pay
monthly payments of $5,658.80 to commence March 1, 1980, and to continue
until February 1, 1995, when a balloon payment of the remaining balance
would be due. However, the contract reduced Buyer's first twenty payments
by $500, from $5,658.80 a month to $5,158.80 a month. Additionally, the
bond for title allowed Buyer to defer a maximum of three months successive
payments in the event occupancy at the mobile home park fell below 152
spaces. It also permitted the parties to set-off or add any claims or
judgments arising under the terms of the agreement.
After Buyer took possession of the mobile home park on January 28,
1980, the parties executed a modification agreement which provided that
Seller would pay Buyer a one-time payment of $6,000 and that the bond for
title would be reduced by $500 per payment for the first twenty payments.1
Buyer began payment on the bond for title on March 1, 1980. However, in
1991, Buyer deferred payments for the months of September, October, and
November due to low occupancy in the mobile home park.
Sometime during the repayment period, Buyer filed suit against Seller
in federal district court concerning Seller's failure to connect the mobile home
park to a sewage treatment facility, as required by the bond for title. On
July 12, 1994, a federal district court issued a judgment against Seller in the
amount of $146,584.72.2 The court further ordered post-judgment interest in
the amount of 5.31% per annum.
1This modification was made because the parties discovered
inaccuracies in the mobile home park's monthly operating statement and
difficulties with the South Carolina Department of Health and Environmental
Control.
2The federal district court judgment was affirmed by the Fourth Circuit
Court of Appeals in Wilke v. Wilder Corp., 74 F.3d 1235 (4th Cir. 1996).
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After Buyer made the final monthly payment in January 1995, Seller
sent Buyer a demand letter requesting $512,557.61 for the balloon payment
due February 1, 1995. Buyer tendered the sum of $280,990.33 to Seller.
Seller refused the tender and brought this foreclosure action against Buyer.
Subsequent to the filing of this action, Buyer paid $281,000 to Seller's
attorneys pursuant to a motion for appointment of receiver.
A hearing was conducted before a master-in-equity on July 6, 1995.
Both Buyer and Seller provided amortization schedules reflecting their views
of Buyer's payment obligation. The master adopted Buyer's amortization
schedule and made four conclusions of law: (1) the modification agreement
modified the bond for title insofar as it reduced the principal amount by
$10,000; (2) Buyer properly credited the federal court judgment in the
amount of $146,584.72 on July 12, 1994. Moreover, no attempt to levy or
otherwise execute the judgment was required in order to offset debt under
the bond for title, and there was no requirement that Buyer wait to offset
such judgment until such time as all appeals had been exhausted; (3) Buyer
made or was excused from making all scheduled payments under the bond
for title, except for the final balloon payment; and (4) the court agreed with
the assumptions Buyer used in constructing the amortization schedule.
Accordingly, the master ordered Buyer to pay a residual amount of $811.72,
plus interest accruing at 9.75%.
The Court of Appeals affirmed the master's order except on four points.
See Wilder Corp. v. Wilke, ___ S.C. ___ , 479 S.E.2d 510 (1997). First, the
Court of Appeals held that interest began to accrue on the loan from the date
of signing, January 25, 1980, rather than the date of the first payment,
March 1, 1980. Second, since the interest accrual date was January 25,
1980, the court held that the master erred in applying Buyer's first payment
entirely toward principal. Third, the court found that the master incorrectly
gave Buyer credit for 180 payments when the evidence supported only 179
payments. Finally, the Court of Appeals noted that Buyer's amortization
schedule gave credit for the federal court judgment in the amount of
$147,289.53; the federal court judgment was $146,584.72, with post-judgment
interest accruing at the rate of 5.31% per annum. The court held that the
master should have only deducted the actual amount of the judgment,
$146,584.72.
This Court granted Buyer's petition for a writ of certiorari to consider
the following questions:
1. Did the Court of Appeals err in holding that Seller preserved or did
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not waive any objections to the calculations in Buyer's amortization schedule
by stipulating to the accuracy of those calculations?
2. Did the Court of Appeals err in holding that interest began to
accrue prior to the first payment?
3. Did the Court of Appeals err in holding that a payment had not
been made or credited?
4. Did the Court of Appeals err in considering whether the trial court
erred by adopting the figures in Buyer's amortization schedule as to the
amount of the federal court judgment?
LAW/ANALYSIS
A. WAIVER/PRESERVATION
Buyer argues that the following issues were not properly preserved for
review by the Court of Appeals: (1) the date when interest started to accrue;
(2) application of the first payment to principal; (3) the number of payments
made by Buyer; and (4) accrual of interest on deferred payments. In a
related argument, Buyer contends that the Court of Appeals erred in holding
that Seller, by its stipulation, did not waive any objections to the calculations
in Buyer's amortization schedule. It should be noted at the outset that Buyer
has preservation problems of its own in that Buyer did not raise all of these
issues to the Court of Appeals in its petition for rehearing. That said, we
disagree with Buyer's contention that Seller waived or failed to preserve its
position on these issues.
At trial, Seller's attorney made the following objection/stipulation when
Buyer's amortization schedule was introduced into evidence:
We have an objection to the theories considered by [the
accountant] in doing the math, but we have no objection to the
way he did the math. We presume that if your honor rules and
sustains [Buyer's] point on the theories, that the math will be
correct . . . .[Buyer's amortization schedule] is a mathematical
run of payments with certain presumptions made on theories
propounded by [the accountant]. [The accountant] has run those
numbers. And if [his] points are sustained by you, then [his] run
of the numbers is accurate.
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It is axiomatic that an issue cannot be raised for the first time on
appeal, but must have been raised to and ruled upon by the trial judge to be
preserved for appellate review. Creech v. South Carolina Wildlife and Marine
Resources Dep't, ___S.C.___, 491 S.E.2d 571 (1997). Moreover, an objection
must be sufficiently specific to inform the trial court of the point being urged
by the objector. Broom v. Southeastern Highway Contracting Co., 291 S.C.
93, 352 S.E.2d 302 (Ct. App. 1986). In this case, Seller's and Buyer's
amortization schedules clearly conflicted on the issues Buyer propounds as
not having been preserved for appellate review. These issues were, in fact,
integral to the computation of the final balances reached by either side.
Thus, in this context, Seller's objection was specific enough to allow the trial
judge to understand and rule upon the alleged error.
Buyer next argues that the trial judge failed to rule upon Seller's
objection at trial. As such, Buyer contends that the above issues were not
preserved for review because Seller failed to make a Rule 59(e) motion.3 We
disagree. Post-trial motions are not necessary to preserve issues that have
been ruled upon at trial; they are used to preserve those that have been
raised to the trial court but not yet ruled upon by it. Hubbard v. Rowe, 192
S.C. 12, 5 S.E.2d 187 (1939). Here, the trial court ruled on Seller's objections
by expressly adopting Buyer's amortization schedule in its order.
Consequently, it was unnecessary for Seller to make any post-trial motions.
Finally, we disagree that Seller, by its stipulation, waived any
objections to Buyer's amortization schedule. Although stipulating to the
accuracy of Buyer's numerical calculations, Seller unequivocally objected to
the presumptions underlying those calculations. As discussed above, in the
context of the case, Seller's objection was sufficiently specific to inform the
trial judge of any error. Therefore, the Court of Appeals was correct in
holding that Seller did not waive any objections to Buyer's amortization
schedule.
B. INTEREST ACCRUAL DATE
Buyer argues that the Court of Appeals erred in finding that the
interest accrual date began on January 25, 1980, rather than March 1, 1980.
We disagree.
3 Rule 59(e), SCRCP, provides, "A motion to alter or amend the
judgment shall be served not later than 10 days after receipt of written
notice of the entry of the order."
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The bond for title was signed on January 25, 1980. It provided, in
part:
[T]he aforesaid sum shall be payable in monthly installments of
principal and interest at the rate of Nine and three-quarters per
cent (9.75%) per annum at the office of the obligor . . . . Said
monthly installments shall be in the amount of Five Thousand
Six Hundred Fifty-eight and 80/100 Dollars ($5,658.80)
commencing on the 1st day of March, 1980, and on the 1st day
of each month thereafter until the principal and interest are fully
paid . . . .
Where a contract for the payment of a sum of money at a future date
provides that it is payable with interest, or is to bear interest, without
specifying from what date the interest is to be computed, it will be construed
to bear interest from the date of the contract. Graham v. Burgiss, 78 S.C.
404, 59 S.E. 29 (1907); G.M.H., Annotation, Construction of Contractual
Provisions As To Interest As Regards Time From Which Interest Is To Be
Computed, 69 A.L.R. 958 (1930). In this case, the bond for title failed to
specify the interest accrual starting date; it merely designated when the loan
payments were to begin. Therefore, interest began to accrue on January 25,
1980, the date the bond for title was signed.
C. NUMBER OF PAYMENTS
Buyer argues that the Court of Appeals erred in holding that Buyer
should have been given credit for 179 payments instead of 180 payments.
We disagree.
The Court of Appeals found that Buyer's list of payments, which the
master admitted into evidence under a stipulation that it accurately reflected
payments Buyer could prove, showed 175 payments having been made. The
Court of Appeals added to this number the three payments deferred in 1991
and the January 1995 payment to arrive at 179 payments. Buyer's
amortization schedule, on the other hand, showed 180 payments having been
made.
In 1980, Buyer made 10 monthly installments. For fourteen years
thereafter, Buyer made 12 monthly installments every year except for 1991
when Buyer deferred three payments. Therefore, excluding the three
deferred payments and the January 1995 payment, Buyer made a total of 175
monthly payments. When the three deferred payments and the January 1995
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payment are added, the total becomes 179 payments.
D. FEDERAL COURT JUDGMENT
Buyer argues that the Court of Appeals erred in considering the issue
of whether post-judgment interest should have been applied to the federal
court judgment as a set-off against amounts owed by Buyer. We disagree.
The Court of Appeals held that the amount of the set-off for the federal
court judgment could not include any amounts for post-judgment interest.
Buyer does not challenge the correctness of this holding, but simply argues
that this issue was not preserved for review by the Court of Appeals. For
the reasons outlined above, we find that Seller's objection at trial was
sufficient to preserve this issue for appellate review. Moreover, the trial
court ruled upon Seller's objection by expressly adopting Buyer's amortization
schedule in its order.
CONCLUSION
For the foregoing reasons, the Court of Appeals' decision is
AFFIRMED.
FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.