Froneberger v. Smith

WILLIAMS, J. Ralph A. Froneberger and Anna M. Froneberger (collectively, the Fronebergers) appeal the circuit court’s order granting summary judgment in favor of Euro Mortgage Bankers, Inc. (Euro) on all but one of their causes of action. The Fronebergers argue the circuit court erred (1) in finding that Kirkland Smith was not Euro’s actual or apparent agent, (2) in finding that Janel Smith’s actions in furtherance of her husband’s investment scheme were outside of her scope of employment, and (3) in improperly dismissing two of their causes of action against Euro that did not relate to the alleged agency. We agree and reverse. FACTS The Fronebergers are a married couple who own a home in Rock Hill, South Carolina. Euro is a New York corporation with its principal place of business in Melville, New York. From 2007 through 2009, Euro was licensed as a mortgage loan broker in South Carolina and employed Janel Smith as a mortgage loan officer. During this time, Mrs. Smith was the sole employee of Euro for both its North Carolina and South Carolina offices. Mrs. Smith is married to Kirkland Smith. Until her retirement in 2008, Mrs. Froneberger was a counselor for the Catawba Mental Health Center. In March 2008, Mr. Smith was referred to Catawba for a mental health evaluation, and Mrs. Froneberger was assigned to conduct his evaluation. During this evaluation, Mr. Smith engaged Mrs. Froneberger in a discussion about her contemplated retirement. Mr. Smith explained that he was a mortgage broker for Euro and could provide Mrs. Froneberger with an investment plan to fund her retirement. During this discussion, Mr. Smith provided Mrs. Froneberger with a business card, which identified him as the branch manager for Euro’s Charlotte office. That evening, Mrs. Froneberger told her husband about her discussion with Mr. Smith and gave him Mr. Smith’s business card. Mr. Froneberger then contacted Mr. Smith and made an appointment to meet Mr. Smith in Charlotte, North Carolina. On March 27, 2008, the Fronebergers traveled to [42] Charlotte and met Mr. Smith at an office 1 located in a highrise building on Tryon Street. At this meeting, Mr. Smith suggested an investment plan that involved the Fronebergers taking out an equity loan from Euro against their home in Rock Hill, “so that [they] could use that money to make some investments” for Mrs. Froneberger’s retirement. Mr. Smith suggested that the Fronebergers could invest their loan proceeds with a large investment bank, such as “Merrill Lynch or AIG.” The investment plan was premised on the assumption that the returns from their investment portfolio would be greater than the cost of the interest on the mortgage, and the excess could be used for Mrs. Froneberger’s living expenses during retirement. The Fronebergers did not make any commitments at this March 27 meeting, indicating to Mr. Smith that they needed to talk about his recommendations before making a decision. The Fronebergers returned to Charlotte the following day and decided to go forward by applying for a mortgage refinancing through Euro. Mr. Smith and the Fronebergers were the only people present at this second meeting. Mr. Smith had the Fronebergers complete a Uniform Residential Loan Application. This form was later signed by Mrs. Smith as “interviewer” and submitted to Euro’s underwriting department in New York. On April 10, 2008, Euro approved the loan application, and Mr. Smith contacted the Fronebergers to convey Euro’s acceptance of their application. On April 11, 2008, both Mr. and Mrs. Smith accompanied the Fronebergers to a meeting with a Smith Barney investment advisor to determine if Smith Barney would invest and manage the funds secured from the refinance loan. Upon arriving at Smith Barney and prior to meeting with a representative, Mrs. Smith excused herself to care for the Smiths’ [43] child and did not return. Mr. Smith and the Fronebergers then met with a Smith Barney representative. This representative informed the Fronebergers that Smith Barney did not “do investments with equity home loans.” The Fronebergers and Mr. Smith then returned to Mr. Smith’s office. On the way back to the office, Mr. Smith informed the Fronebergers that AIG and Merrill Lynch no longer had programs that would invest mortgage loan proceeds for clients. Immediátely following this, Mr. Smith told the Fronebergers that he believed he could manage their money “about as well as” an investment bank. Mr. Smith then told the Fronebergers about several companies that he owned or operated, including his family’s trucking business. During this discussion, Mr. Smith would “refer back” to Euro, but never directly told the Fronebergers that Euro had any involvement with the proposed investments. Ultimately, the Fronebergers decided to go through with Mr. Smith’s proposed investment plan, and on April 18, 2008, the Fronebergers withdrew $20,000 from their savings account and delivered these funds to Mr. Smith to invest in the trucking company. Upon receipt of these funds, Mr. Smith executed a promissory note, promising to pay the Fronebergers “the sum of twenty thousand 00/100 dollars ($20,000.00) together with interest thereon in the sum of 5% of principal one thousand dollars ($1,000.00) per month.” The note identified “Kirkland Smith” as the “Borrower” and “Ralph A. Froneberger & Martina A. Froneberger” as the “Lender.” Later that day, the refinance loan from Euro was closed at a law office in Rock Hill. Both Mrs. and Mr. Smith went to the closing. However, Mr. Smith stayed in the car with the Smiths’ infant child during the closing. Mr. Froneberger testified that Mrs. Smith helped with the closing, but the Fronebergers “thought she was just being helpful [and] didn’t know she had anything to do with the business.” After paying the closing fees and the $1,083.43 remaining balance on their previous mortgage, the closing yielded $128,432.45. On May 7, 2008, the Fronebergers gave Mr. Smith a second payment of $20,000. Again, on June 18, 2008, the Fronebergers gave Mr. Smith a third payment for $20,000. Both of these additional payments were to be invested in Mr. Smith’s [44] family owned trucking business. Following each of these additional payments, Mr. Smith executed additional promissory notes. Initially, the Fronebergers received the promised payments from Mr. Smith as returns on their investments. However, beginning in July 2008, the checks from Mr. Smith began to bounce for having “insufficient funds.” Shortly thereafter, the payments stopped all together. Despite repeated efforts, the Fronebergers were unable to get Mr. Smith to make further payments or return the money they had invested with him. PROCEDURAL HISTORY As a result of their transactions with the Smiths, the Fronebergers brought suit against Mr. Smith, Mrs. Smith, Euro, and Bank of America,2 as successor in interest to Euro’s mortgage, on June 16, 2009. The Fronebergers filed an amended complaint on December 14, 2009. The Fronebergers sought recovery against the Smiths and Euro jointly for fraud, negligent misrepresentation, conversion, and breach of the South Carolina Unfair Trade Practices Act. The Fronebergers also sought recovery against Euro for negligent hiring and retention of the Smiths, for failure to comply with the attorney preference statute as required by section 37-10-102(a) of the South Carolina Code (2002), for rescission of the mortgage transaction based on common-law fraud, and for rescission or reformation of the mortgage under the South Carolina Consumer Protection Code. Euro timely answered both the original complaint and the amended complaint. The Smiths, who were pro se, each filed an answer to the original complaint, but they failed to timely answer the amended complaint.3 In their answers to the Fronebergers’ complaints, Mr. and Mrs. Smith admitted Mr. Smith was an employee of Euro.4 On February 2, 2010, the [45] circuit court found the Smiths in default for their failure to respond to the amended complaint. On November 2, 2010, Euro filed a motion for summary-judgment with the circuit court. In support of this motion, Euro presented an affidavit from Lisa Vitale, Euro’s president and sole stock holder, which stated that (1) Euro did not permit its employees to provide investment advice; (2) Mrs. Smith was employed as a loan originator from mid-2007 through mid-2009; and (3) Euro never employed Mr. Smith or authorized him to hold himself out as its agent. On December 16, 2010, a hearing was held before the circuit court to address this motion. On December 28, 2010, the circuit court granted the motion for summary judgment on all of the Fronebergers’ causes of action against Euro, except their attorney preference claim, finding that (1) Euro was not liable for the acts of Mr. Smith under a theory of either actual or apparent authority; (2) Euro was not liable for the actions of Mrs. Smith because any actions relating to her husband’s solicitation of money were outside the scope of her authority; and (3) the Fronebergers’ damages arose solely from their loans to Mr. Smith and were unrelated to the mortgage loan transaction with Euro. On January 12, 2011, the Fronebergers filed a Rule 59(e), SCRCP, motion for reconsideration, arguing that (1) sufficient evidence had been presented to preclude summary judgment as to the issues of actual or apparent agency; and (2) Euro’s [46] motion for summary judgment solely addressed agency and therefore should not have affected the Fronebergers’ causes of action for rescission and negligent hiring and retention. On January 20, 2011, a second hearing was held before the circuit court to address the Fronebergers’ motion to reconsider. On March 10, 2011, the circuit court issued a Form 4 order denying the motion for reconsideration. This appeal followed. STANDARD OF REVIEW “When reviewing a grant of summary judgment, appellate courts apply the same standard applied by the [circuit] court pursuant to Rule 56(c), SCRCP.” Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011). “Summary judgment is appropriate when the pleadings, depositions, affidavits, and discovery on file show there is no genuine issue of material fact such that the moving party must prevail as a matter of law.” Id. at 122, 708 S.E.2d at 769; see also Rule 56(c), SCRCP. “To determine whether any triable issues of fact exist, the reviewing court must consider the evidence and all reasonable inferences in the light most favorable to the non-moving party.” McLaughlin v. Williams, 379 S.C. 451, 455-56, 665 S.E.2d 667, 670 (Ct.App.2008). To withstand a motion for summary judgment in cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence. Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). “The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact.” Miller v. Blumenthal Mills, Inc., 365 S.C. 204, 220, 616 S.E.2d 722, 730 (Ct.App.2005). “Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, ... the nonmoving party must come forward with specific facts showing there is a genuine issue for trial.” Id. (citation omitted). LAW/ANALYSIS I. Agency The Fronebergers first contend that the circuit court erred in granting summary judgment because sufficient evidence was presented to create genuine issues of material fact regarding the existence of an actual or apparent agency between [47] Mr. Smith and Euro. Additionally, the Fronebergers argue that the circuit court erred in granting summary judgment based on its finding that the actions of Mrs. Smith were outside the scope of her employment. While we agree with the circuit court’s treatment of the alleged apparent agency between Mr. Smith and Euro, we find sufficient evidence exists to withstand summary judgment as to the issue of an actual agency relationship between Mr. Smith and Euro. Further, we find that sufficient evidence exists in the record to withstand summary judgment on the question of whether Mrs. Smith’s actions were within the scope of her employment. A. Mr. Smith’s Apparent Agency Under South Carolina law, “[t]he elements which must be proven to establish apparent agency are: (1) that the purported principal consciously or impliedly represented another to be his agent; (2) that there was a reliance upon the representation; and (3) that there was a change of position to the relying party’s detriment.” Graves v. Serbin Farms, Inc., 306 S.C. 60, 63, 409 S.E.2d 769, 771 (1991). “Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe the principal consents to have the act done on his behalf by the person purporting to act for him.” Frasier v. Palmetto Homes of Florence, Inc., 323 S.C. 240, 244-45, 473 S.E.2d 865, 868 (Ct.App.1996). “Either the principal must intend to cause the third person to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such belief.” Id. at 245, 473 S.E.2d at 868. “Moreover, an agency may not be established solely by the declarations and conduct of an alleged agent.” Id. The first element of apparent agency can be established by either: (1) affirmative conduct or (2) conscious and voluntary inaction. See Watkins v. Mobil Oil Corp., 291 S.C. 62, 67, 352 S.E.2d 284, 287 (Ct.App.1986) (discussing the elements of apparent agency and finding the first element may be established “by either affirmative conduct or conscious and voluntary inaction”); Graves, 306 S.C. at 63, 409 S.E.2d at 771 (the first element of apparent agency requires “that the purported principal consciously or impliedly represented an [48] other to be his agent.” (emphasis added)). Under the first of these two scenarios, the principal makes direct representations to a third party that another has authority to act on his behalf. See Frasier, 323 S.C. at 244, 473 S.E.2d at 868 (apparent agency is created by “written or spoken words or any other conduct of the principal” showing consent to allow another to act on a principal’s behalf). Under the second, the principal implies authority by passively permitting another to appear to third parties to have authority to act on his behalf. See R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 434, 540 S.E.2d 113, 118 (Ct.App.2000) (“Such authority is implied where the principal passively permits the agent to appear to a third person to have the authority to act on his behalf.”); Fernander v. Thigpen, 278 S.C. 140, 143, 293 S.E.2d 424, 426 (1982) (“[A]gency may be implied or inferred and may be circumstantially proved by the conduct of the purported agent exhibiting a pretense of authority with the knowledge of the alleged principal.”). In the instant case, we hold that the Fronebergers have failed to satisfy the first element of apparent agency, which requires “that the purported principal consciously or impliedly represent [ ] another to be his agent.” Graves, 306 S.C. at 63, 409 S.E.2d at 771 (emphasis added). There is no evidence that Euro, through conduct or manifestations, ever made any direct representation that Mr. Smith was an employee or agent of its company. The Fronebergers stated in their deposition testimony that no one “other than Kirkland Smith ever [told them] that he was employed by Euro Mortgage Bankers.” The Fronebergers did not testify to having any contact with Euro’s New York office and had little contact with Mrs. Smith. In fact, the Fronebergers testified that they did not even realize Mrs. Smith was an employee of Euro.5 Consequently, the only remaining way for the Fronebergers to establish the first element of apparent agency is to demon [49] strate Euro knowingly permitted Mr. Smith to appear to others to be its agent. See R & G Constr., 343 S.C. at 433, 540 S.E.2d at 118 (requiring “acts or conduct” demonstrating a principal “has knowingly ... permitted another to appear to be his agent”). If Euro knew Mr. Smith was holding himself out as its Charlotte office branch manager, was using its office space, and was handing out business cards containing its logo but consciously decided not to stop or correct this behavior, then that inaction could serve as conduct to satisfy the first element. However, we find that the Fronebergers have failed to demonstrate evidence indicating Euro knew Mr. Smith was acting in this manner. Without knowledge of Mr. Smith’s conduct, Euro cannot have permitted this behavior with conscious inaction. See Fernander, 278 S.C. at 143, 293 S.E.2d at 426 (“[Ajgency may be ... proved circumstantially by the conduct of the purported agent exhibiting a pretense of authority with the knowledge of the alleged principal.” (emphasis added)). Accordingly, the record contains no evidence that Euro, by any acts or conduct, knowingly caused or passively permitted Mr. Smith to appear to be its agent. Because this first element fails, we need not consider the remaining elements required to prove apparent agency. We find there is no genuine issue of material fact regarding an apparent agency relationship between Mr. Smith and Euro. Accordingly, the circuit court properly found Euro was entitled to judgment as a matter of law on the apparent agency issue. B. Mr. Smith’s Actual Agency Although we agree with the circuit court’s treatment of the apparent agency issue, we find that there is evidence in the record creating a genuine issue regarding an actual agency relationship between Euro and Mr. Smith, sufficient to survive a motion for summary judgment. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control.” Restatement (Third) of Agency § 1.01 (2006). Generally, “[a]gency is a question of fact.” Gathers v. Harris Teeter Supermarket, [50] Inc., 282 S.C. 220, 226, 317 S.E.2d 748, 752 (Ct.App.1984). “[(Questions of agency ordinarily should not be resolved by summary judgment where there are any facts giving rise to an inference of an agency relationship.” Fernander v. Thigpen, 278 S.C. 140, 142, 293 S.E.2d 424, 425 (1982) (internal quotation marks omitted). “If there are any facts tending to prove the relationship of agency, it then becomes a question for the jury[,]” and the grant of summary judgment is inappropriate. Gathers, 282 S.C. at 226, 317 S.E.2d at 752. When ruling on a motion for summary judgment, the circuit court should examine the “pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits” to determine if “there is no genuine issue as to any material fact.” Rule 56(c), SCRCP; see also Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 134, 638 S.E.2d 650, 655 (2006). In the case at hand, the circuit court granted summary judgment to Euro based on its finding that it was “undisputed that Mr. Smith was never an employee of Euro.” However, Mr. and Mrs. Smith both indicate in their answers to the Fronebergers’ complaints that Mr. Smith was in fact an employee of Euro. These admissions in the Smiths’ answers are contrary to Euro’s president’s affidavit submitted with Euro’s motion for summary judgment. It is well settled in South Carolina that a party “may not rest upon the mere allegations or denials of his pleading” to defeat a motion for summary judgment. Rule 56(e), SCRCP; see also Strickland v. Madden, 323 S.C. 63, 68, 448 S.E.2d 581, 584 (Ct.App.1994) (stating “an adverse party may not rely on the mere allegations in his pleadings to withstand a summary judgment motion”). However, in the instant case, the Fronebergers are not merely relying on the allegations of their own pleadings. Instead, they point to the pleadings provided by adverse parties containing admissions that indicate the existence of an agency relationship between Mr. Smith and Euro. The dissent argues that the Fronebergers failed to present any evidence of an agency relationship because the Smiths’ answers “contain only the bare conclusion that [Mr. Smith] was an agent” while failing to provide evidence to support this conclusion. We disagree. Rule 56 of the South Carolina Rules of Civil Procedure requires the circuit court to consider [51] the submitted pleadings, along with depositions, answers to interrogatories, admissions, and affidavits, when ruling on summary judgment. The Fronebergers directed the circuit court’s attention to the Smiths’ pleadings as evidence of an actual agency in both their return to summary judgment and their motion for reconsideration. We believe the admissions in the Smiths’ pleadings satisfy the mere scintilla of evidence required to withstand summary judgment.6 Accordingly, the issue of actual agency is a question for the jury. See Gathers, 282 S.C. at 226, 317 S.E.2d at 752 (“If there are any facts tending to prove the relationship of agency, it then becomes a question for the jury.” (emphasis added)); Fernander, 278 S.C. at 142, 293 S.E.2d at 425 (“[Questions of agency ordinarily should not be resolved by summary judgment where there are any facts giving rise to an inference of an agency relationship.” (internal quotation marks omitted)). In reaching this conclusion, we do not suggest that the Fronebergers have presented sufficient evidence to establish an agency relationship at trial. Ultimately, evidence may demonstrate that Euro and Mr. Smith never entered into an agency relationship. However, given the minimal amount of discovery the parties had conducted at the time summary judgment was granted,7 we find the Smiths’ answers created a mere scintilla of evidence that precluded summary judgment. Utilizing the mere scintilla of evidence burden, the inconsistencies among the Smiths’ answers create a genuine issue of [52] material fact that precludes summary judgment.8 Accordingly, we find the circuit court erred in concluding that the Fronebergers could not proceed under a theory of actual agency. C. Mrs. Smith’s Scope of Employment The Fronebergers also contend that the circuit court erred in granting summary judgment based upon its finding that the actions of Mrs. Smith in furtherance of her husband’s investment scheme were outside the scope of her employment with Euro. “The modern doctrine of respondeat superior makes a master hable to a third party for injuries caused by the tort of his servant committed within the scope of the servant’s employment.” S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 179, 348 S.E.2d 617, 621 (Ct.App.1986). “An act falls within the scope of the servant’s employment if it was reasonably necessary to accomplish the purpose of the servant’s employment, and it was done in furtherance of the master’s business.” Wade v. Berkeley Cnty., 330 S.C. 311, 319, 498 S.E.2d 684, 688 (Ct.App.1998). Accordingly, “the master is liable for the torts of his servant even when the servant acts against the express instructions of his master, so long as the servant acts to further the master’s business.” Id. “What is within the scope of employment may be determined by implication from the circumstances of the case.” Id. “Any doubt as to whether the servant was acting within the scope of his authority when he injured a third person must be resolved against the master, at least to the extent of requiring that the question be submitted to the jury.” Id. In the instant case, the proper question for the circuit court was whether Mrs. Smith’s acts facilitating her husband’s [53] investment scheme were: (1) in furtherance of Euro’s business and (2) reasonably necessary to accomplish the purpose of her employment. We believe that several of Mrs. Smith’s actions, particularly allowing her husband access to Euro’s office and signing the loan application that was submitted to Euro’s underwriting office, served to further her master’s business of lending money and obtaining mortgages and were reasonably necessary to accomplish the purpose of her employment. These actions were also integral in facilitating the transaction between the Fronebergers and her husband. The dissent argues that the circuit court properly held that the Fronebergers’ damages arose solely from the investment transactions with Mr. Smith and were unconnected to the mortgage loan from Euro. However, there is evidence in the record that shows these two transactions were closely related. The Fronebergers’ testified at their depositions that their sole purpose in obtaining this mortgage was to fund the investment plan provided by Mr. Smith. This contention is supported by the fact that their prior mortgage with Wells Fargo only had a remaining balance of $1,086.43 at the time they closed on the mortgage. Accordingly, we find the circuit court inappropriately concluded that Mr. Smith’s investment scheme and the mortgage loan from Euro were separate and unrelated. Instead, under Wade, we find this determination was a question for the jury. 330 S.C. at 319, 498 S.E.2d at 688 (“Any doubt as to whether the servant was acting within the scope of his authority when he injured a third person must be resolved against the master, at least to the extent of requiring that the question be submitted to the jury.”). Based on the foregoing, we find that there are genuine questions of material fact regarding whether the actions of Mrs. Smith were within the scope of her employment that are sufficient to withstand summary judgment. See Hancock, 381 S.C. at 330, 673 S.E.2d at 803 (requiring only “a mere scintilla of evidence” to withstand summary judgment in cases applying the preponderance of the evidence burden of proof); Wade, 330 S.C. at 319, 498 S.E.2d at 688 (“Any doubt as to whether the servant was acting within the scope of his authority when he injured a third person must be resolved against the master, at least to the extent of requiring that the [54] question be submitted to the jury.”). Therefore, we find that the circuit court erred in granting summary judgment. Due to the circuit court’s errors regarding the grant of summary judgment on the existence of an actual agency with Mr. Smith and the scope of Mrs. Smith’s employment, we reverse the circuit court’s grant of summary judgment on the Fronebergers’ causes of action for fraud, negligent misrepresentation, conversion, and breach of the South Carolina Unfair Trade Practices Act. II. Negligent Hiring and Consumer Protection Code Claims The Fronebergers additionally argue that the circuit court improperly dismissed their causes of action for (1) negligent hiring and retention and (2) rescission based upon unconscionability under Section 37-10-105 the South Carolina Code (2002) (the “Consumer Protection Code”) because the circuit court provided no reasoning for dismissing these claims. Furthermore, because these causes of action are separate and distinct from agency, the Fronebergers contend that the court’s ruling on agency was not dispositive on the viability of their negligent hiring and Consumer Protection Code claims. We agree. “[A circuit] court’s order on summary judgment must set out facts and accompanying legal analysis sufficient to permit meaningful appellate review.” Bowen v. Lee Process Sys. Co., 342 S.C. 232, 237, 536 S.E.2d 86, 88 (Ct.App.2000). “Such an order must include those facts which the circuit court finds relevant, determinative of the issues and undisputed.” Id. at 237-38, 536 S.E.2d at 88-89 (internal quotation marks omitted). The order should also “provide clear notice to all parties and the reviewing court as to the rationale applied in granting ... summary judgment.” Id. at 38, 536 S.E.2d at 89 (alteration in original) (internal quotation marks omitted). In this case, Euro moved for summary judgment on all of the Fronebergers’ causes of action. However, their memorandum in support of summary judgment focuses on the nonexistence of an agency relationship between Mr. Smith and Euro. At the hearing for this motion, the Fronebergers argued to the circuit court that at least one of their causes of actions did [55] not depend on the finding of an agency relationship.9 The circuit court’s order granting summary judgment on six of the seven causes of action brought by the Fronebergers does not contain specific findings or reasoning for the dismissal of any particular cause of action. Instead, the order, under a section entitled “Discussion,” generally finds that there was no agency relationship between Mr. Smith and Euro and that the Fronebergers’ losses arose solely from their loans to Mr. Smith and were unrelated to their mortgage transaction with Euro. With their motion for reconsideration, the Fronebergers argued that the order failed to address all of their causes of action, specifically pointing out the negligent hiring and consumer protection code claims. The circuit court denied the motion for reconsideration in a Form 4 order. We find the circuit court has failed to provide adequate reasoning for its grant of summary judgment as to the Fronebergers’ claims for negligent hiring and rescission. See Bowen, 342 S.C. at 237, 536 S.E.2d at 88 (stating that the circuit court “must set out facts and accompanying legal analysis” to support its grant for summary judgment). The circuit court did not discuss either the undisputed material facts or applicable law which support its grant of summary judgment in relation to Mrs. Smith’s hiring and retention or the alleged unconscionable inducement regarding their loan. Neither of these claims turn on the existence of an agency relationship between Mr. Smith and Euro. The circuit court failed to provide either further findings of fact relating to these claims or more defined rationale explaining the grant of summary judgment. We therefore vacate the circuit court’s grant of summary judgment for the Fronebergers’ claims for negligent hiring and violation of the Consumer Protection Code and remand the matter to the circuit court for an order “identifying the facts and accompanying legal analysis on which it relied in granting Defendants’ summary judgment motion” as to these two causes of action. CONCLUSION The Fronebergers have presented at least a mere scintilla of evidence that there was an actual agency relationship [56] between Mr. Smith and Euro. Further, there are genuine questions of fact regarding whether the actions of Mrs. Smith were within the scope of her employment. Hence, the grant of summary judgment based on the court’s findings that there was no agency relationship with Mr. Smith and that the acts of Mrs. Smith were outside the scope of her employment was improper. Additionally, the circuit court failed to provide adequate reasoning for its dismissal of the Fronebergers’ claims for negligent hiring and rescission under the Consumer Protection Code. Therefore, we reverse the grant of summary judgment on the Fronebergers’ causes of action for fraud, negligent misrepresentation, conversion, and breach of the South Carolina Unfair Trade Practices Act. Further, we vacate the circuit court’s grant of summary judgment for the Fronebergers’ claims for negligent hiring and violation of the Consumer Protection Code and remand the matter to the circuit court for an order identifying the facts and accompanying legal analysis on which it relied in granting Euro’s motion for summary judgment as to these two causes of action. Based on the foregoing, the circuit court’s order is REVERSED IN PART and VACATED IN PART and REMANDED. PIEPER, J., concurs. Footnotes [1] The record is unclear as to whether this office was in fact the office for Euro's Charlotte branch. The Fronebergers assert that this office was the office maintained by Euro for their Charlotte branch. Euro does not deny this assertion, but instead highlights that "Mr. Smith’s office was not marked with any signs, placards, or other indicia that the office was operated by Euro, and Mr. Smith did not wear any nametag or logo reflecting that he was affiliated with Euro.” Throughout the Fronebergers' deposition testimony, they refer to this office as "Mr. Smith’s office.” [2] Bank of America was replaced by Countrywide Bank, who is the actual current holder of the Fronebergers' Mortgage, in the amended complaint. [3] Mrs. Smith also provided an untimely answer to the Fronebergers’ amended complaint. [4] On three separate occasions in his answer to the Fronebergers’ original complaint, Mr. Smith indicates that he acted as an agent or employee of Euro. [45] Answering the allegations of Paragraph 8 of the Complaint, Defendant Kirkland Smith admits that Kirkland Smith represented Euro Mortgage at the closing of the loan in Rock Hill, South Carolina. Answering the allegations of Paragraph 10 of the Complaint, Defendant Kirkland Smith admits that he was an employee of Euro Mortgage. Answering the allegations of Paragraph 16 of the Complaint, Defendant Kirkland Smith admits that his actions towards accomplishing the mortgage loan transaction were made in his capacity as a[sic] office manager and consultant agent of Euro Mortgage. Additionally, Mrs. Smith provided a similar statement in her untimely answer to the amended complaint when she stated: “Responding to Paragraph 10, Janel Smith admits she was an employee of Euro Mortgage Bankers. Janel Smith is of the opinion or belief that Kirkland Smith was an employee, agent, or representative of Euro.” [5] Mr. Froneberger stated, "[w]e just saw [Mrs. Smith] only as [Mr. Smith’s] wife. We didn’t even know that she was involved at all." Mrs. Froneberger provided a similar view when she said, "I thought [Mrs. Smith] was just [Mr. Smith’s] wife just coming in talking to him in his office.” [6] Additionally, the instant case is distinguishable from the case law cited by the dissent. The admissions in the Smiths' answers were before the circuit court as pleadings of Euro’s co-defendants, and not in the pleadings of the party resisting summary judgment. Cf. Shape v. Settle, 315 S.C. 510, 516-17, 445 S.E.2d 651, 655 (Ct.App.1994) (finding an affidavit submitted by the party resisting summary judgment that contained a ’’conclusory statement as to the ultimate issue in [that] case [was] not sufficient to create a genuine issue of fact for purposes of resisting summary judgment"). We also note that the only evidence that conflicts with the admissions in the Smiths’ pleadings is a similar conclusory statement in the affidavit from Euro’s president stating that Euro never employed Mr. Smith or authorized him to hold himself out as its agent. [7] The record indicates that at the time summary judgment was granted, the only discovery before the circuit court was the Fronebergers’ depositions and the affidavit of Euro's president. [8] We recognize that one of the Fronebergers' causes of action is fraud, which requires a heightened standard of proof at the summary judgment stage. See Turner, 392 S.C. at 125, 708 S.E.2d at 770 (finding that "more than a mere scintilla of evidence must be presented to withstand a motion for summary judgment” when fraud is the cause of action). However, because the circuit court’s summary judgment order focused solely on the existence of agency and did not address the merits of the underlying fraud claim, we find it appropriate to apply the mere scintilla burden to the agency question for all causes of action. [9] Counsel for the Fronebergers stated: “There is one other, your honor, .., that’s not affected by agency or apparent agency and that’s the negligent hiring and retention.”