THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Stephen Wilkinson, as Trustee of George B. Buchanan, 

Jr. Irrevocable Family Trust Dated the 15th day of July, 

2001, Respondent, 

v. 

Redd Green Investments, LLC, Anderson North Augusta, 

LLC, Herbert Anderson, Jr., A. Bruce Green, Herbert 

Keith Anderson, and L. Cliff Redd, Defendants, 

Of which Redd Green Investments, LLC, A. Bruce 

Green, and L. Cliff Redd are Appellants. 

Appellate Case No. 2018-001388 

Appeal From Saluda County 

R. Knox McMahon, Circuit Court Judge 

Opinion No. 5880 

Heard March 3, 2021 – Filed December 15, 2021 

AFFIRMED 

Wallace K. Lightsey and William Marvin Wilson, III, 

both of Wyche Law Firm, of Greenville; and M. Alan 

Peace, of Harrell, Martin, & Peace, P.A., of Chapin, all 

for Appellants. 

John T. Moore, Allen Mattison Bogan, and Nicholas 

Andrew Charles, all of Nelson Mullins Riley & 

Scarborough, LLP, of Columbia; and Erik Tison Norton, 
of Harrell, Martin, & Peace, P.A., of Chapin, all for 

Respondent. 

LOCKEMY, C.J.: In this action to enforce a guaranty agreement, Redd Green 

Investments, LLC, A. Bruce Green, and L. Cliff Redd (collectively, Guarantors) 

appeal the trial court's grant of a directed verdict in favor of Stephen Wilkinson as 

Trustee of the George B. Buchanan, Jr. Irrevocable Family Trust dated the 15th of 

July, 2001 (the Trust). Guarantors argue the trial court erred in finding that as a 

matter of law the Trust's violation of section 15-39-720 of the South Carolina Code 

(2005)1

 could not operate as a defense to its enforcement of the guaranty 

agreements. We affirm. 

FACTS 

In 2001, George B. Buchanan, Jr. (Buchanan), created and funded the Trust for the 

benefit of his children. On November 18, 2009, the Trust entered into a loan 

agreement with Springs North Augusta, LLC, in which the Trust agreed to loan it 

$7,590,000 to purchase 1,420 acres of real property in Aiken County (the 

Property). Springs North Augusta executed a promissory note agreeing to repay 

the loan in full with interest of 15% per annum and executed a mortgage on the 

Property in favor of the Trust to secure the loan. On November 16, 2010, Springs 

North Augusta and the Trust signed an amendment to the loan agreement, which 

capitalized the interest to the principal, bringing the new principal to $8,728,500. 

Springs North Augusta also signed a modification to the promissory note and 

agreed to repay the new balance of the loan plus 15% interest per annum. 

The loan agreement named Herbert Anderson, Jr., Herbert Keith Anderson, A. 

Bruce Green, William Otha Bodie, L. Cliff Redd, Redd Green Investments, LLC, 

and Anderson North Augusta, LLC, as guarantors, and they signed two separate 

guaranty agreements guaranteeing repayment of the loan. The guaranty 

agreements gave the Trust the right to obtain payment from Guarantors to satisfy 

any unpaid debt of Springs North Augusta. Redd Green Investments, LLC and 

Anderson North Augusta, LLC, signed one agreement; Herbert Anderson, Jr., 

Herbert Keith Anderson, A. Bruce Green, William Otha Bodie, and L. Cliff Redd 

signed the other. Redd Green Investments, LLC, and Anderson North Augusta, 

 

1

 Section 15-39-720—also referred to as the "bidding" statute—provides that a 

"mortgagee or his representative" is permitted to bid only once at a judicial 

foreclosure sale. 
LLC, owned Springs North Augusta, which they formed to hold title to the 

Property. A. Bruce Green and L. Cliff Redd formed Redd Green Investments, 

LLC to hold their ownership interest in Springs North Augusta.2 The guaranty 

agreements contained a "Waiver of Appraisal Rights" provision,3

 which stated: 

TO THE FULLEST EXTENT PERMITTED BY 

LAW AND AS A MATERIAL INDUCEMENT FOR 

LENDER TO MAKE THE LOAN, GUARANTOR 

HEREBY WAIVES AND RELINQUISHES THE 

STATUTORY APPRAISAL RIGHTS WHICH 

MEANS THE HIGH BID AT THE JUDICIAL 

FORECLOSURE SALE WILL BE APPLIED TO 

THE DEBT REGARDLESS OF ANY APPRAISED 

VALUE OF THE MORTGAGED PROPERTY. 

Springs North Augusta defaulted under the terms of the Note, and the Trust filed 

an action to foreclose its lien on the Property. The Trust named Springs North 

Augusta—the only other party to the mortgage—as the sole defendant in the 

action. Springs North Augusta failed to answer, and the circuit court entered an 

order of default and mandatory order of reference. The master-in-equity entered an 

order of foreclosure and sale, ordering the Property to be sold at auction and the 

proceeds applied to the outstanding principal and interest totaling $9,450,622.50. 

On September 4, 2012, the Trust bid $6.6 million at the foreclosure sale. The 

master held the sale open for thirty days for upset bids. The master held the 

deficiency sale on October 4, 2012, and Second Avenue Holdings, LLC (Second 

Avenue)—of which Buchanan was the sole member and manager—was the 

successful bidder in the amount of $7,160,000 and made a deposit of $500,000 

towards the bid. Second Avenue and the Trust then "reached an agreement" 

pursuant to which Second Avenue assigned the bid back to the Trust "for value 

received." The master entered an order of deficiency against Springs North 

Augusta for $2,484,163.95 on October 26, 2012, which was amended on February 

13, 2013, to $2,753,192.70, plus 15% annual interest. 

 

2

 Herbert Anderson Jr. and Herbert Keith Anderson owned Anderson North 

Augusta, LLC. The Andersons and their company are not parties to this appeal. 

3 See S.C. Code Ann. § 29-3-680 (2007) (providing "a defendant against whom a 

personal judgment may be taken on a real estate secured transaction may waive the 

appraisal rights as provided by this section"). 
Thereafter, the Trust brought this action to collect the deficiency judgment from 

Guarantors. Guarantors asserted several defenses and counterclaims. First, they 

claimed Second Avenue was created six days after the Trust entered its bid, that it 

was created for competitive bidding on behalf of the Trust, and that the Trust 

controlled it. Guarantors alleged the Trust's claims were barred by the equitable 

doctrines of laches and unclean hands, equitable estoppel, judicial estoppel, and 

waiver because the Trust violated the provisions of section 15-39-720 by bidding 

through a "straw man" at the second foreclosure sale. In addition, Guarantors 

alleged counterclaims for civil conspiracy, constructive fraud, and fraud and deceit. 

After the trial court denied the Trust's motions to dismiss and for summary 

judgment, the case proceeded to a jury trial on September 5, 2017. At trial, 

Guarantors withdrew their counterclaims "as counterclaims, but not as the factual 

basis for the defenses." 

Stephen Wilkinson, who took over as the trustee of the Trust in August 2013, 

testified Buchanan established the Trust, which was an irrevocable trust, to put 

aside assets for his children and to eliminate estate taxes. He stated Buchanan 

could give him financial advice concerning the Trust as needed and could add 

funds to the Trust but had no other control of the Trust. Wilkinson explained that 

as of the time of trial, the Property was actively on the market but the Trust had not 

received any written offers to purchase. 

Green testified that when Springs North Augusta first acquired the Property it was 

worth $30 million. He agreed Springs North Augusta was unable to pay off the 

loan because the real estate values had been "tanking" and they had no means to 

repay the loan as a result. Green testified that when the Trust filed the foreclosure 

action, he assumed the value of the land satisfied the Trust and he believed that he, 

Redd, and Redd Green Investments were "clear." Redd testified that if asked the 

same questions, his testimony would be the same as Green's. 

Buchanan maintained he formed Second Avenue three or four years before the 

foreclosure sale. He acknowledged, however, that Second Avenue filed its articles 

of incorporation with the State of South Carolina on September 10, 2012. 

Buchanan testified he met with the trustee after the foreclosure sale and the trustee 

stated he would like to have the Property back as a long-term investment for the 

Trust. Second Avenue therefore assigned the bid back to the Trust, and in 

exchange, the Trust repaid Second Avenue the amount of the $500,000 deposit. 

At the conclusion of the testimony, the Trust moved for a directed verdict, arguing 

(1) Guarantors could not collaterally attack the foreclosure sale, (2) whether the 
Trust violated the bidding statute was a question of law, (3) a violation of the 

statute did not excuse the debt, (4) such a violation would only result in an offset, 

which Guarantors had not established, and (5) at best, the jury could conclude a 

subsequent breach occurred after the Guarantors were already in default of the 

guaranty agreement, which would not excuse their performance. Although the trial 

court initially noted that viewing the evidence in the light most favorable to 

Guarantors, the jury could infer a violation of section 15-39-720 occurred, the trial 

court concluded a violation of section 15-39-720 was not a defense on a guaranty 

of a debt. It therefore directed a verdict in favor of the Trust for $4,781,882.65.4 

 

Guarantors filed a motion for a new trial, which the trial court denied. This appeal 

followed. 

ISSUE ON APPEAL5 

Did the trial court err in ruling that as a matter of law a mortgagee's violation of 

section 15-39-720 in a prior foreclosure action cannot serve as a defense to a 

subsequent action for breach of guaranty when the guarantor was not a party to the 

prior foreclosure action? 

STANDARD OF REVIEW 

"In reviewing a motion for directed verdict, the appellate court applies the same 

standard as the circuit court. The court must view the evidence and the inferences 

that can reasonably be drawn in the light most favorable to the nonmoving party." 

Coake v. Burt, 391 S.C. 201, 205-06, 705 S.E.2d 453, 455 (Ct. App. 2010) (citation 

omitted). "Motions for directed verdict or JNOV should be denied if the evidence 

yields more than one reasonable inference or its inference is in doubt." Allegro, 

Inc. v. Scully, 418 S.C. 24, 32, 791 S.E.2d 140, 144 (2016). "An appellate court 

will reverse only whe[n] there is no evidence to support the trial judge's ruling, or 

whe[n] the ruling was controlled by an error of law." Ecclesiastes Prod. Ministries 

v. Outparcel Assocs., LLC, 374 S.C. 483, 491, 649 S.E.2d 494, 498 (Ct. App. 

2007). 

 

4

 This figure accounted for the additional $2,028,689.85 in interest that had 

accrued since the foreclosure sale. 

5

 Guarantors' stated issues on appeal are virtually identical; thus, we address both 

issues as one. 
LAW AND ANALYSIS 

Guarantors argue the Trust breached the implied obligation of good faith and fair 

dealing when it violated section 15-39-720, thereby precluding the Trust from 

collecting a deficiency from Guarantors. They assert section 15-39-720 protects 

borrowers by permitting a mortgagee to bid only once, on the first day of the 

foreclosure auction, and by forbidding the mortgagee or anyone acting on its behalf 

from bidding a second time or offering an upset bid at the final auction. 

Guarantors contend the Trust's violation of the statute deprived them of the Trust's 

high bid. Guarantors therefore argue the trial court erred in concluding section 

15-39-720 did not provide a defense to a suit to collect a payment obligation on the 

guaranty. We disagree. 

Section 15-39-720 states: 

In all judicial sales of real estate for the foreclosure of 

mortgages and sales in execution the bidding shall not be 

closed upon the day of sale but shall remain open until 

the thirtieth day after such sale, exclusive of the day of 

sale. Within such thirty day period any person other than 

the highest bidder at the sale or any representative 

thereof in foreclosure and execution suits may enter a 

higher bid upon complying with the terms of sale by 

making any necessary deposit as a guaranty of his good 

faith, and thereafter within such period any person, other 

than such highest bidder at the sale or any representative 

thereof, in foreclosure suits may in like manner raise the 

last highest bid, and the successful purchaser shall be 

deemed to be the person who submitted the last highest 

bid within such period and made the necessary deposit or 

guaranty. But the mortgagee or his representative shall 

enter such bid as he desires at the time the sale is made, 

and he and all persons acting in his behalf shall be 

precluded from entering any other bid in any amount at 

any other time except the single or last bid made by him 

or in his behalf at the sale. . . . 

The bidding shall be reopened by the officer 

making the sale on the thirtieth day after the sale, 

exclusive of the day of the sale, at eleven o'clock in the 
forenoon and the bidding shall be allowed to continue 

until the property shall be knocked down in the usual 

custom of auction to the successful highest bidder 

complying with the terms of sale. The sales officer shall 

announce the sales about to be closed and shall receive 

the final bids in such sales in the order determined by 

him. 

(emphases added). 

We decline to address the question of whether the Trust violated section 15-39-720 

because the trial court acknowledged evidence existed from which the jury could 

find a violation. Nevertheless, we conclude the trial court did not err in ruling 

Guarantors could not assert a violation of the statute as a defense to the Trust's 

action to enforce the guaranty. The Guarantors' attempt to challenge the amount of 

the deficiency judgment is barred by res judicata and even assuming a violation of 

the statute, Guarantors failed to show such violation prejudiced them such that they 

should be relieved from their responsibilities under the guaranty agreement. 

"The doctrine of res judicata provides that final judgment on the merits of an action 

precludes the parties or their privies from relitigating claims that were or could 

have been raised in that action." Venture Eng'g, Inc. v. Tishman Constr. Corp. of 

S.C., 360 S.C. 156, 162, 600 S.E.2d 547, 550 (Ct. App. 2004) (quoting In re S.N.A. 

Nut Co., 215 B.R. 1004, 1008 (1997)); see also Pye v. Aycock, 325 S.C. 426, 432, 

480 S.E.2d 455, 458 (Ct. App. 1997) ("To establish res judicata, three elements 

must be shown: (1) the identities of the parties is the same as a prior litigation; (2) 

the subject matter is the same as the prior litigation; and (3) there was a prior 

adjudication of the issue by a court of competent jurisdiction."). "The concept of 

privity rests not on the relationship between the parties asserting it, but rather on 

each party's relationship to the subject matter of the litigation." Yelsen Land Co. v. 

State, 397 S.C. 15, 22, 723 S.E.2d 592, 596 (2012). "The term 'privy,' when 

applied to a judgment or decree, means one so identified in interest with another 

that he represents the same legal right. One in privity is one whose legal interests 

were litigated in the former proceeding." Roberts v. Recovery Bureau, Inc., 316 

S.C. 492, 496, 450 S.E.2d 616, 619 (Ct. App. 1994). 

"A guaranty of payment is an absolute or unconditional promise to pay a particular 

debt if it is not paid by the debtor at maturity. Under an absolute guaranty of 

payment, the creditor may maintain an action against the guarantor immediately 
upon default of the debtor." Citizens & S. Nat'l Bank of S.C. v. Lanford, 313 S.C. 

540, 543, 443 S.E.2d 549, 550 (1994) (citation omitted). 

A guaranty is a contract and is to be construed by the 

principles governing contracts. The construction of a 

guaranty calls for a reasonable interpretation of the 

language used in the instrument, and a court has the duty 

to ascertain the intention of the parties at the time the 

contract was made. The intention of the parties as 

expressed in the guaranty should guide the court. 

Peoples Fed. Sav. & Loan Ass'n v. Myrtle Beach Ret. Grp., Inc., 300 S.C. 277, 280, 

387 S.E.2d 672, 673 (1989) (citation omitted). 

This action and the foreclosure action involved the same subject matter: Springs 

North Augusta's debt to the Trust and the foreclosure sale. In addition, both 

actions arose from Springs North Augusta's default on the note and mortgage. The 

master held a foreclosure sale, and no one challenged the foreclosure proceedings. 

Following the sale, the master entered the deficiency judgment, which determined 

Springs North Augusta's remaining debt to the Trust. Therefore, the master 

decided the issue of the amount of the unpaid debt in the prior foreclosure action. 

Although the Trust did not name Guarantors in the foreclosure action, Guarantors 

were privies with Springs North Augusta. Both parties had a shared interest in 

obtaining the lowest deficiency judgment possible because Guarantors were 

responsible for any unpaid debt of Springs North Augusta. See Lanford, 313 S.C. 

at 543, 443 S.E.2d at 550 ("A guaranty of payment is an absolute or unconditional 

promise to pay a particular debt if it is not paid by the debtor at maturity."). Green 

and Redd owned Redd Green Investments, and Redd Green Investments was one 

of two companies that owned Springs North Augusta. Moreover, Green 

acknowledged he was aware that Springs North Augusta defaulted on the loan and 

that there was a pending foreclosure action. As direct or indirect owners of 

Springs North Augusta, Guarantors had notice of the foreclosure action yet failed 

to participate in those proceedings. Guarantors could have challenged Second 

Avenue's participation in the bidding process in the prior action but did not do so. 

Res judicata bars Guarantors' attempt to challenge the process by way of a defense 

in this action. Because Guarantors cannot collaterally attack the foreclosure sale, 

we conclude the trial court did not err in directing the verdict in favor of the Trust. 

Further, even assuming a violation, Guarantors have failed to show the alleged 

violation of the bidding process prejudiced them when no evidence shows what the 
winning bid would have been had Second Avenue not placed the highest bid. 

Guarantors concede they did not challenge the amount of the judgment in the 

foreclosure suit and do not seek to undo the sale. The express terms of the 

guaranty provided it was an absolute guaranty of payment and that Guarantors 

waived their right to an appraisal. See Peoples Fed. Sav. & Loan Ass'n, 300 S.C. at 

280, 387 S.E.2d at 673 ("A guaranty is a contract and is to be construed by the 

principles governing contracts. The construction of a guaranty calls for a 

reasonable interpretation of the language used in the instrument, and a court has 

the duty to ascertain the intention of the parties at the time the contract was made. 

The intention of the parties as expressed in the guaranty should guide the court." 

(citation omitted)). Although Green testified the Property was worth about $30 

million in 2009, there is no evidence—other than the amount of the highest bid at 

the foreclosure sale—of the fair market value of the Property at the time of the 

foreclosure sale. Guarantors argue evidence shows the Trust valued the Property at 

$15 million following the foreclosure sale and it was therefore reasonable to 

conclude the Trust would have bid the full debt amount of $9.5 million if it had 

acted in compliance with the bidding statute. Guarantors mentioned this $15 

million figure during the parties' pretrial discussions with the trial court, but no 

evidence in the record supports this value. The original loan was for $7,590,000, 

which Springs North Augusta used to purchase the Property. The winning bid of 

$7,160,000 demonstrated no party was willing to bid more than $7,160,000 for the 

Property and there was no evidence Guarantors would have been in a better 

position had a third party purchased the Property. See Peoples Fed. Sav. & Loan 

Ass'n v. Myrtle Beach Ret. Grp., Inc., 302 S.C. 223, 234 n.1, 394 S.E.2d 849, 855 

n.1 (Ct. App. 1990) (Cureton, J., concurring) (noting "it is assumed that because a 

third party did not buy the property at the foreclosure sale no one else was 

interested in purchasing the property at the price paid by the lender"). Even 

assuming the Trust violated the statute, Guarantors failed to demonstrate the sale 

price would have been higher but for Second Avenue's actions and thus failed to 

show the alleged violation prejudiced them. We therefore conclude the trial court 

did not err in determining that even assuming the Trust violated section 15-39-720, 

such violation could not serve as a defense to the enforcement of the guaranty. 

Thus, the trial court did not err in granting the Trust's motion for a directed verdict. 

CONCLUSION 

For the foregoing reasons, we affirm the trial court's grant of a directed verdict in 

favor of the Trust. 

AFFIRMED. 
HUFF and HEWITT, JJ., concur.