Thomas W. Campbell (Campbell) appeals the master’s orders entering summary judgment against him and a deficiency judgment for amounts unpaid after foreclosure. We affirm in part, reverse in part, and remand in part.
Reynolds & Associates (Reynolds) obtained a loan of $2,250,000 from Security Federal, the respondent, to build a shopping center in Charleston County. Reynolds and Campbell executed a promissory note for the loan amount on February 24, 1988. Reynolds also executed a mortgage and an assignment of leases, rents, and profits in favor of Security Federal. Although Campbell was not a party to the mortgage, he executed a continuing guaranty of payment in favor of Security Federal on February 24,1988.
In February 1990, Reynolds and Campbell failed to make the payment then due on the note. In April 1990, Reynolds attempted to tender payment to Security Federal in an amount insufficient to bring the note current but was refused.
On April, 17 1990, Cisson Construction, the plaintiff, initiated the present action to foreclose its mechanic’s lien on the property. Security Federal, one of the defendants named in
On April 20,1990, Security Federal declared the note in default and gave notice to Reynolds of its decision to accelerate payment of all amounts due under the note.
On August 6, 1990, Security Federal notified the shopping center’s tenants that all rents should be sent directly to it pending the appointment of a receiver. The total rent due from all tenants was approximately $20,000 per month.
On September 11,1990, Security Federal filed a motion requesting appointment of a receiver to manage the property and collect the rents.
On October 30, 1990, Security Federal filed a motion for summary judgment, requesting that the master order sale of the property with the proceeds going to Security Federal and that the master enter a deficiency judgment if the sale proceeds were inadequate. Campbell opposed the entry of summary judgment on the question of damages.
On November 14,1990, the master appointed a receiver. Security Federal turned over $41,000 in rents which it had collected since August to the receiver.
On January 21,1991, the master granted Security Federal’s motion for summary judgment on the note given by Reynolds and Campbell; he awarded all sums requested by Security Federal, including $74,487 in unpaid taxes for 1988 and 1989, $26,057 in unpaid taxes for 1990, and $65,189 in attorney fees.
On February 26, 1991, Security Federal bid $2,157,000 at the foreclosure sale; this bid became the final purchase price on March 28,1991.
On May 27, 1991, the master heard both Campbell’s motion to amend the master’s January order for summary judgment, and Security Federal’s request for calculation of a deficiency judgment. On September 10, 1991, the master entered an
On appeal, Campbell asserts that the master erred in 1) awarding summary judgment in the full amount requested by Security Federal because there was a genuine issue of material fact as to whether Security Federal had mitigated its damages; 2) awarding Security Federal $65,189 in attorney fees because this award was without a sufficient evidentiary base and was unreasonably high; and 3) adding past due taxes and maintenance fees to the deficiency judgment entered against Campbell where the note did not include an undertaking by Campbell to pay these expenses and where Campbell neither signed the mortgage nor had an ownership interest in the mortgaged property.
I.
Campbell asserts that although the master correctly found that Security Federal had a duty to mitigate, the master erred in awarding summary judgment in the full amount requested by Security Federal because Security Federal’s refusal of Reynolds’ tender of payment in April 1990,
Summary judgment is appropriate where there is no genuine issue of material fact. Rule 56(c), SCRCP, Hamilton v.
Security Federal argues that it was justified in refusing Reynolds’ tender because it did not want to jeopardize its rights to declare a default, accelerate, and fore-
close through Campbell’s assertion of waiver, and that the exercise of its right to collect the rents directly from the tenants and to appoint the receiver were found by the master to be reasonable and not a failure to mitigate. A mortgagee can be held to have waived his right to accelerate a note upon default by accepting payments after default. Caulder v. Lewis,
Our review of the record establishes that the master erred by suggesting that Security Federal owed Campbell a duty to mitigate.
II.
Campbell asserts that there was insufficient evidence in the record to support the master’s award of attorney fees of $65,189. We agree.
Campbell argues that there was no evidence whatsoever in the record to support the master’s award of attorney fees in his order of January 21, 1991, and that only later, in its affidavit of May 7, 1991, did Security Federal’s counsel produce evidence in an effort to sustain this award. Regardless, Campbell describes this affidavit as insufficient because 1) it merely states that 210 hours have been expended by the attorneys and professional staff of the firm, and that additional hours would be expended on the appeal, without detailing the work done by firm attorneys on an hourly basis and without distinguishing between the work of attorneys, paralegals, and secretaries,
Our Supreme Court has recently spoken regarding the necessity for the trial court to make specific findings of fact when attorney fees are requested and authorized by contract
Our review of the record establishes that Campbell was not afforded the opportunity to contest the affidavit submitted by Security Federal’s attorneys. Clark v. Ross,
III.
Campbell asserts that the master erred in adding past due taxes and maintenance fees to the deficiency judgment entered on the note because the note did not in-
Security Federal asserts that Campbell is liable for the taxes and maintenance fees under the terms of the continuing guaranty of payment. This guaranty provides that:
[Campbell] unconditionally guarantees to Security Federal the prompt and full payment when due, whether by acceleration or otherwise, of any and all existing or future indebtedness and liability of every kind, nature and character of the Borrower to Security Federal, however and whenever incurred or evidenced, whether direct or indirect, absolute or contingent. . . together with all interest thereon and all attorneys’ fees, costs, and expenses incurred by Security Federal in collecting any such indebtedness and liability____
Campbell asserts that Security Federal is barred from asserting on appeal that Campbell is liable under the terms of the guaranty because the master granted summary judgment on the note and not the guaranty.
This assertion is without merit. Implicitly, if not explicitly, both Security Federal’s motion for summary judgment and the master’s order for summary judgment predicate liability against Campbell based on the note and guaranty agreement. Accordingly, we affirm, concluding that the taxes and maintenance fees are within the terms of the guaranty.
Accordingly, the decision of the master is
Affirmed in part, reversed in part, and remanded in part.
Notes
Although the master did not include $11,712 in repair and maintenance fees as a separate item in his calculation of the deficiency, he reduced Campbell’s credit against the deficiency for money held by the receiver by these fees, resulting in a net credit of $128,973.
After Reynolds’ default, Security Federal would not accept anything less from Reynolds than full payment on the note.
The total rent due for February through October 1990 was approximately $189,000.
At oral argument, Campbell asserted that because the master had found that Security Federal owed Campbell a duty to mitigate, this finding was the law of the case and Security Federal could not assert otherwise. Although the language of the master’s finding is unclear, we conclude that he found that regardless of whether mitigation was required, Security Federal’s actions had been reasonable.
In the guaranty, Campbell agreed that:
Security Federal shall be under no obligation to preserve any collateral given by the Borrower to Security Federal or preserve the liability of any person on the Obligations, nor shall Security Federal be required to pursue or exhaust any remedy or bring suit against the Borrower, or [any other person], any collateral, or take any other action before requiring payment from [Campbell] whom may be sued separately by Security Federal [without joining or first suing any other person]____
Security Federal’s attorneys submitted no work sheets.
The fee represents 3% of the $2,250,000 face amount of the note and 17% of the deficiency of $375,172.
Campbell is obligated under both the note and guaranty to pay Security Federal’s attorney fees.
Compare Parker v. South Carolina Public Service Commission,
These factors include: 1) the nature, extent, and difficulty of the legal services rendered; 2) the time and labor devoted to the case; 3) the professional standing of counsel; 4) the contingency of compensation; 5) the fee customarily charged in the locality for similar services; and 6) the beneficial results obtained.
The note specifies that the borrowers Reynolds and Campbell are obligated to pay $2,250,000 plus interest.
The obligation to pay taxes and maintenance fees is imposed on the borrower, Reynolds, by paragraph 2 of the mortgage.