Air First Aviation Companies, Inc. v. Midwest Aviation Center, Inc.

• Court: Court of Appeals of South Carolina
• Decided: January 28, 2003
• Docket: 2003-UP-075
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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Air First Aviation Companies, Inc., a Georgia corporation registered to do business in South Carolina,        Appellant,

v.

Midwest Aviation Center, Inc., an Ohio corporation not registered to do business in South Carolina, Commercial Aircraft Services, Inc., an Ohio corporation not registered to do business in South Carolina, Michael J. Fricker and Fred Arthur Calvert,        Defendants,

Of whom Fred Arthur Calvert is,        Respondent.

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Appeal From Aiken County
J. C. Nicholson, Jr., Circuit Court Judge

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Unpublished Opinion No. 2003-UP-075
Submitted June 3, 2002 - Filed January 28, 2003

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AFFIRMED

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Richard E. Miley, of N. Augusta; and Charles C. Stebbins, III of Augusta, GA, for appellant.

John A. Hodge, of Columbia, for respondent.   

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PER CURIAM:  In this dispute involving a contract for the inspection and service of two airplanes, Air First Aviation Co., Inc. appeals the grant of summary judgment to defendant Fred Calvert.  We affirm. 

FACTS/PROCEDURAL HISTORY

In 1996, Air First Aviation purchased two used Fokker F27 turboprop airplanes in "as is" condition from Hawaii's Mahalo Airlines, ferrying them from Honolulu to Aiken, South Carolina.  Several months later, Air First contacted Midwest Jet Center, an aircraft repair and maintenance business located in Cincinnati, Ohio, to see if the company could inspect and service the aircraft, including swapping their engines.  In the course of negotiations, Fred Calvert, Midwest's Vice-President and Director of Maintenance, made two trips to South Carolina.  Based on Calvert's assertion that Midwest was authorized to perform A, B, C, and D aircraft inspections, Air First and Midwest entered into a contract on June 30, 1997, whereby Air First agreed to pay Midwest $125,000 to perform a "D" inspection on one of the planes and swap the engines as previously discussed. 

Part way through the inspection process, Midwest began preparing for the engine swap.  In so doing, Calvert contacted Rolls Royce, the manufacturer of the aircraft engines, to inquire about leasing some specialized testing equipment.  At that time, he was surprised to learn Rolls Royce considered the engines unserviceable because they previously had been stored improperly in a hot and salty Hawaiian environment.  Rolls Royce officials informed Calvert that the engines would need a complete overhaul and corrosion assessment before they could be recertified as airworthy, a complicated mechanical undertaking for which Calvert and Midwest were not rated.  Because federal regulations require the company to adhere to the engine manufacturer's recommendations, Midwest was unable to meet its contractual obligations. 

Air First subsequently filed the instant action alleging breach of contract accompanied by a fraudulent act, violation of the South Carolina Unfair Trade Practices Act, and civil conspiracy, premising each cause of action on allegedly false and misleading statements by Calvert and another Midwest representative in South Carolina concerning Midwest's ability to perform the contract.  In May 2000, Calvert filed a motion for summary judgment, which the trial court granted on August 25, 2000.  This appeal followed. 

LAW/ANALYSIS

Standard of Review

Summary judgment is proper when it is clear there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  West v. Gladney, 341 S.C. 127, 533 S.E.2d 334 (Ct. App. 2000); see Rule 56, SCRCP.  Such relief can be granted "when plain, palpable, and undisputed facts exist on which reasonable minds cannot differ."  Trico Surveying, Inc. v. Godley Auction Co., Inc., 314 S.C. 542, 544, 431 S.E.2d 565, 566 (1993).  When deciding a motion for summay judgment, the trial court "must view the evidence and the inferences which can be drawn therefrom in the light most favorable to the non-moving party."  West, 341 S.C. at 132, 533 S.E.2d at 336. 

Air First initially contends Calvert=s summary judgment motion was premature, alleging it was not allowed adequate time for discovery.  This issue is not preserved for appellate review. 

The record reveals the following statement by Air First counsel at the motion hearing:  

And then there's a motion for summary judgment that's been made by the defendant, Fred Calvert.  And Mrs. Campano's office informed me that that motion was going to be heard today.  I did not receive notification from the court, but I have no objection to it being heard today.  We're prepared to argue that motion also in addition to our default judgment motion. 

At no time during the hearing did Air First assert an objection to the motion based on a failure to obtain outstanding discovery.  The issue, therefore, is not preserved for our review.  See Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991) (finding plaintiffs= argument that outstanding discovery should preclude summary judgment not preserved where plaintiffs failed to  raise the issue to the trial court). 

Air First next argues the trial court erred in granting summary judgment because "[t]here is a jury issue as to whether representations made by Calvert were false so as to support a claim for fraud."  What Air First fails to note, however, is that it never asserted a claim for fraud-neither its original or amended complaint, nor the trial court's summary judgment order references a cause of action for fraud.  Accordingly, there is no issue for this Court to address in this regard. ^[1]  

Air First further asserts the trial court improperly granted summary judgment on its civil conspiracy claim.  We disagree. 

Civil conspiracy in South Carolina is a common law tort consisting of three elements:  (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage.  Swinton Creek Nursery v. Edisto Farm Credit, ACA, 326 S.C. 426, 483 S.E.2d 789 (Ct. App. 1997), rev'd in part on other grounds, 334 S.C. 469, 514 S.E.2d 126 (1999).  The crux of the tort is a combined action whose "object is to ruin or damage the business of another."  See id. at 438, 483 S.E.2d at 795 (quoting  LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 70, 370 S.E.2d 711, 713 (1988)).

Notwithstanding the fact that Air First's amended complaint more closely approximates a cause of action for fraudulent inducement rather than civil conspiracy, we find Air First presented no facts tending to rebut Calvert's deposition testimony explaining Midwest's failure to perform.  We therefore agree with the trial court that the record contains no evidence Calvert made a false statement or misrepresentation, much less that such was done for the purpose of injuring Air First's business. 

Viewing the evidence in a light most favorable to Air First, there is no issue of material fact concerning the alleged falsity of Calvert's representations regarding Midwest's ability to handle the contract.  The record clearly reflects that Midwest and Calvert were certified by the Federal Aviation Administration to perform A, B, C, and D inspections on Fokker F27 aircraft.  Such certification is tangible evidence that both were qualified and capable of performing the work  required by the contract.  Contrary to Air First's assertions, the record evidence indicates the sole reason Midwest failed to perform was the revelation, previously unknown to Calvert and Midwest, that Rolls Royce had declared the aircraft engines unserviceable.

Moreover, the document entitled "Contract and Payment Terms" states on its face that "[n]o parts or outside services will be purchased without the written consent of Air 1^st." (emphasis added)  This language contemplates assistance to Midwest from other companies, subject only to the requirement of prior written approval from Air First, and negates any inference that Midwest and only Midwest was to perform work on the aircraft. 

Air First additionally argues the trial court erred in finding the South Carolina Unfair Trade Practices Act (UTPA) inapplicable to the facts as alleged.  Again, we disagree. 

First and foremost, the UTPA "is unavailable to redress private wrongs if the public interest is unaffected."  Ardis v. Cox, 314 S.C. 512, 518, 431 S.E.2d 267, 271 (Ct. App. 1993); see Noack Enters., Inc. v. Country Corner Interiors of Hilton Head Island, Inc., 290 S.C. 475, 479, 351 S.E.2d 347, 350 (Ct. App. 1986) ("To be actionable under the UTPA, therefore, the unfair or deceptive act or practice in the conduct of trade or commerce must have an impact upon the public interest.").  Thus, unfair or deceptive acts or practices that affect only the parties to a commercial transaction are beyond the UTPA's embrace.  Ardis, 314 S.C. at 518-19, 431 S.E.2d at 271.  Even a deliberate or intentional breach of contract, without more, does not constitute a violation of the UTPA.  See id. at 519, 431 S.E.2d at 271.

As with Air First's other claims, the alleged UTPA violation is based upon

the purported misrepresentations regarding Midwest's ability to perform under the contract.  Because Air First failed to rebut Midwest=s evidence showing the statements in question were not false, as noted above, we also find the trial court properly granted summary judgment on this cause of action.  Furthermore, as it is quite clear the underlying contract involves private parties only and in no way implicates the public interest, we agree with the trial court that the UTPA simply does not apply. 

Finally, since we conclude Air First has no viable cause of action against Calvert, we need not address its remaining argument concerning personal jurisdiction. 

AFFIRMED.

CURETON, STILWELL, and SHULER, JJ., concur.

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^[1]   Of course, Air First did initiate an action for breach of contract accompanied by a fraudulent act.  However, according to the trial court=s order, this cause of action was dismissed with Air First=s consent Ainsofar as Defendant Calvert was not a party to the Contract.@