In The Court of Appeals

David B. Crockett,        Appellant,


Carolina First Bank, Defendant and Third Party Plaintiff, David W. Bowers and Kenneth F. Crockett, Third Party Defendants,        Respondents.

Appeal From Newberry County
James W. Johnson, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-522
Submitted September 15, 2004 – Filed October 14, 2004


Samuel M. Price, Jr., of Newberry, for Appellant.

Edward M. Woodward, Jr., of Columbia and Wallace K. Lightsey and William P. Crawford, both of Greenville, for Respondent.

PER CURIAM: David B. Crockett brought suit against Carolina First Bank seeking a finding that his signature on stock certificates was a forgery and directing the bank to redeem his shares of stock.  The trial court dismissed the case pursuant to Rule 12(b)(6), SCRCP, finding the complaint failed to allege facts sufficient to constitute a cause of action.  We affirm. [1]


In his complaint, Crockett alleged he was the owner of 1,000 shares of stock in Midlands National Bank, which merged in 1995 with Carolina First.  He maintained his brother “absconded with [his] legal papers including, but not limited to, the aforementioned shares.”  In July of 1999, Crockett discovered his shares had been redeemed by the bank.  Crockett claims his brother forged his signature to endorse the shares.  Crockett’s complaint states the forged signature was guaranteed by David Bowers, the former President and CEO of Midlands National Bank.  The complaint further indicates that Crockett is currently in possession of the original shares and has asked Carolina First to redeem them, but that Carolina First refused. Accordingly, Crockett asks the court to declare that his signature was forged and to require Carolina First “to honor the original certificates of stock and redeem the original certificates of stock and pay to [Crockett] the amount wrongfully paid to [Crockett’s brother], his successors or assigns.” 

After answering and filing a third-party complaint, Carolina First moved to dismiss the appeal based on Rule 12(b)(6), SCRCP.  Carolina First asserted the complaint failed to set forth a viable claim against the bank because it was not involved in any of the alleged wrongdoing, the claim was barred by the statute of limitations, and Crockett lacked standing to assert liability based on the guaranty pursuant to section 36-8-306 of the South Carolina Code (2003). 

The trial court granted the motion to dismiss, finding:  (1) the allegations in the complaint did not set forth a legally viable claim; (2) Carolina First was not liable to Crockett under the guaranty; (3) Crockett failed to follow the statutory procedure for dealing with lost or stolen stock certificates under section 36-8-405 of the South Carolina Code (2002); and (4) Crockett was prohibited from bringing a claim against the bank under section 36-8-406 of the South Carolina Code (2002).  This appeal followed. 


The trial court may dismiss a claim when the defendant demonstrates the plaintiff’s “failure to state facts sufficient to constitute a cause of action” in the pleadings filed with the court.  Rule 12(b)(6), SCRCP.  “The trial court must dispose of a motion for failure to state a cause of action based solely upon the allegations set forth on the face of the complaint.”  Brown v. Leverette, 291 S.C. 364, 366, 353 S.E.2d 697, 698 (1987).  “The motion cannot be sustained if facts alleged in the complaint and inferences reasonably deducible therefrom would entitle plaintiff to any relief on any theory of the case.”  Id.  “All properly pleaded factual allegations are deemed admitted” for the purpose of considering a motion for judgment on the pleadings.  Russell v. Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991).


Crockett contends the trial court erred in dismissing his case.  We disagree.

Arguably, Crockett’s assertion of liability in his complaint could be characterized as the following three possible causes of action: negligence, conversion, or liability based on David Bowers’ signature guaranty.  However, Crockett’s complaint fails to state facts sufficient to constitute any of these causes of action.

To make a claim for negligence, Crockett would need to allege in the complaint that (1) Carolina First owed a duty of care to him, (2) Carolina First breached the duty by a negligent act or omission, (3) Carolina First’s breach was the actual and proximate cause of Crockett’s injury, and (4) Crockett suffered an injury or damages.  Steinke v. South Carolina Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 387, 520 S.E.2d 142, 149 (1999).  As the trial court found, Crockett’s complaint fails to allege a duty of care Carolina First breached when it redeemed the shares based on an endorsement that was allegedly forged. [2]   Accordingly, the complaint does not set forth a claim of negligence.

The complaint also fails to establish a viable claim of conversion against the bank.  “Conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another.”  Jones v. Equicredit Corp. of S.C., 347 S.C. 535, 544-545, 556 S.E.2d 713, 718 (Ct. App. 2001) (citing Crane v. Citicorp Nat’l Servs., Inc., 313 S.C. 70, 73, 437 S.E.2d 50, 52 (1993)).  While Crockett may have a claim of conversion against his brother, he has failed to allege how Carolina First has exercised the right of ownership over his certificates.  Therefore, Crockett has failed to state a viable claim of conversion.

Finally, the complaint seems to allege Carolina First is liable on the signature guaranty of David Bowers.  However, as the trial court noted, section 36-8-306(h) states: 

The warranties under this section are made to a person taking or dealing with the security in reliance on the guaranty, and the guarantor is liable to the person for loss resulting from their breach. An indorser or originator of an instruction whose signature, indorsement, or instruction has been guaranteed is liable to a guarantor for any loss suffered by the guarantor as a result of breach of the warranties of the guarantor.

S.C. Code Ann. § 36-8-306(h) (2003) (emphasis added).  Crockett cannot state a claim under this section against Carolina First because the benefit of the guaranty does not run to him.  

As we cannot deduce a viable legal claim stated in the complaint, we find the trial court properly dismissed the action pursuant to Rule 12(b)(6), SCRCP. [3]   Accordingly, the trial court’s dismissal is


HEARN, C.J., HUFF and KITTREDGE, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] In his brief, Crockett contends that the trial court found no duty of care solely because Midlands National Bank had merged into Carolina First.  He therefore argues that Carolina First assumed all of Midlands National Bank’s liabilities.  However, Crockett’s complaint fails to allege any legal duty running between him and either Carolina First or Midlands National Bank.  Thus, despite the merger, Crockett’s complaint fails to allege a viable cause of action.

[3] As we affirm based on the failure of the complaint to state a claim under Rule 12(b)(6), we need not address the remaining grounds for dismissal offered by the trial court in the order of dismissal.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling that an appellate court need not review remaining issues when disposition of prior issues is dispositive).