THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Baird Pacific West,
Appellant,
v.
Blue Water Sunset Park, Inc.,
Respondent.
Appeal From Beaufort County
John M. Milling, Circuit Court Judge
Perry M. Buckner, Circuit Court Judge
Thomas Kemmerlin, Jr., Special Circuit
Court Judge
Unpublished Opinion No.2004-UP-011
Heard December 10, 2003 Filed January
14, 2004
AFFIRMED
Michael S. Seekings, of Charleston, for Appellant.
Joseph R. Baker, of Hilton Head Island, for Respondent.
PER CURIAM: Baird Pacific West, Inc. (Baird),
brought this action against Blue Water Sunset Park, Inc. (Blue Water), alleging
breach of contract, fraud, and negligent misrepresentation in connection with
an agreement entered between the parties for the sale of land. The circuit
court granted summary judgment in favor of Blue Water and awarded attorney
fees to Blue Water. Baird appeals, arguing (1) summary judgment was improper;
and (2) the award of attorney fees was improper because Blue Water failed to
request attorney fees in its pleadings and Blue Waters request for a hearing
concerning its motion for attorney fees was untimely, thus divesting the trial
court of subject matter jurisdiction. We affirm.
FACTS
In December 1996, the parties entered
into a contract in which Baird agreed to purchase and Blue Water agreed to sell
approximately eight acres of waterfront property on the north end of Hilton
Head Island. The agreement set the purchase price at $1,725,000.
The parties were unable to consummate
the original contract due to difficulties in obtaining approval from the state
environmental agency. However, this approval was eventually obtained, and
in March 1998, Baird and Blue Water entered into an agreement to reinstate and
amend the earlier contract. The parties agreed Baird would have until May 4,
1998 to conduct additional due diligence investigations. They also agreed that
Baird was to waive its right to purchase an extension of the due diligence period,
as had been allowed under the terms of the original contract. Baird could,
however, elect to withdraw from the contract at the end of the due diligence
period and receive a full refund of its earnest-money deposit.
Prior to the expiration of the new due
diligence period, Baird informed Blue Water of three problems Baird was unable
to resolve: a title defect, a discrepancy in the acreage of the property, and
an instability in some of the filled portions of the land. Baird requested
an extension of the due diligence period in order to resolve these issues, and
if Blue Water was not amenable to that request, Baird alternatively suggested
they cancel the contract. Blue Water declined to extend the due diligence review,
opting instead to terminate the contract. The contract was cancelled, and Bairds
earnest money was refunded.
In March 1999, Baird brought the present
action, alleging Blue Water was liable to Baird for breach of contract, fraud,
and negligent misrepresentation due to Blue Waters inability to convey marketable
title to the property. Baird also sought to recover actual and consequential
damages.
Pursuant to Blue Waters motion for summary judgment,
the circuit court concluded there were no genuine issues of material fact and
found Blue Water was entitled to judgment as a matter of law on all of Bairds
claims in a June 15, 2001 order, reserving Blue Waters claim for attorney fees.
The circuit court granted Blue Water leave to move for an award of attorney
fees and Court costs upon thirty (30) days notice to [Baird]. Following a
hearing, the circuit court awarded attorney fees and costs to Blue Water in
an October 2001 order. This appeal follows.
STANDARD OF REVIEW
A trial court should grant a motion for summary
judgment when the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Rule 56(c), SCRCP; see also Fleming v.
Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether
any triable issues of fact exist, the evidence and all inferences which can
be reasonably drawn from the evidence must be viewed in the light most favorable
to the nonmoving party. Strother v. Lexington County Recreation Commn,
332 S.C. 54, 61, 504 S.E.2d 117, 121 (1998). If triable issues of fact exist,
those issues must go to the jury. Young v. South Carolina Dept of Corr.,
333 S.C. 714, 717, 511 S.E.2d 413, 415 (Ct. App. 1999).
LAW/ANALYSIS
I. Breach of Contract, Fraud, and Negligent
Misrepresentation
Bairds claims for breach of contract,
fraud, and negligent misrepresentation all rest upon its assertion that Blue
Water was not able to convey marketable title as required by the terms of the
contract. We find no merit to Bairds position.
In construing the terms of a written contract
upon a motion for summary judgment, the question is one of law if the language
contained in the contract is plain and unambiguous. MGC Mgmt. of Charleston,
Inc. v. Kinghorn Ins. Agency, 336 S.C. 542, 546, 520 S.E.2d 820, 822 (Ct.
App. 1999). In such a case, summary judgment is proper and a trial unnecessary
where the intention of the parties as to the legal effect of the contract may
be gathered from the four corners of the instrument itself. First Citizens
Bank & Trust Co. v. Conway Natl Bank, 282 S.C. 303, 305, 317 S.E.2d
776, 777 (Ct. App. 1984). It is well settled that, in construing a contract,
the court must ascertain and give effect to the intention of the parties. BP
Oil Co. v. Federated Mut. Ins. Co., Inc., 329 S.C. 631, 640, 496 S.E.2d
35, 40 (Ct. App. 1998) (citing D.A. Davis Constr. Co. v. Palmetto Properties,
Inc., 281 S.C. 415, 315 S.E.2d 370 (1984)). When the intention of the parties
to a written agreement is at issue, the court must first look to the language
of the agreement. C.A.N. Enterprises, Inc. v. South Carolina Health and
Human Servs. Fin. Commn, 296 S.C. 373, 377, 373 S.E.2d 584, 586 (1988);
Warner v. Weader, 280 S.C. 81, 83, 311 S.E.2d 78, 79 (1983). If the
agreement is unambiguous, the court must construe it according to the terms
the parties chose. Id. These terms are to be understood in their ordinary
and popular sense. Id.
With respect to title, the contract in
the present case provided:
TITLE. Seller shall convey marketable
title to the property to purchaser in fee simple by proper deed in recordable
form with stamps affixed and with covenants of general warranty subject to normal
utility easements, applicable restrictive covenants, governmental regulations
and assessments. If an owners title binder can be issued by an ALTA [1] title insurance company at standard rates with
standard exceptions for Hilton Head Island, South Carolina, title shall be deemed
to marketable.
(emphasis added).
In compliance with these explicit terms, Blue Water
obtained and held at all pertinent times a title binder from the Chicago Title
Insurance Company (Chicago Title), an ATLA title insurance company. The policy
was issued at standard rates with standard exceptions for Hilton Head Island.
We find these facts uncontroverted by the evidence contained in the
record.
However, Baird attempts to redirect the
attention of this Court from the plain language of the contract in an effort
to convince us Blue Water failed to honor its promise to convey marketable title.
We find these efforts unpersuasive.
For instance, Baird devotes substantial energies
to explaining why the title Blue Water was willing to convey would not be clear
or marketable under general principles of real property law. While this may
or may not be true, it is of little concern to the present inquiry. Where the
parties have freely and knowingly entered into a contract as they did in the
present case our charge is only to give effect to the parties intentions
as memorialized in the contract language. We see no reason, and none is alleged,
why we should veer from this mandate.
Baird also claims that it could not obtain
title insurance with standard rates and exceptions due to the outstanding claims
on the title by a third party. This third party claim, however, was clearly
contemplated and fully indemnified under the policy issued by Chicago Title.
This fact is amply demonstrated by a letter received from the insurance companys
underwriting council, which confirms the insurers obligation under the policy.
This letter reads, in relevant part:
Since Chicago Title has an outstanding
Owners Policy, we would be willing to insure over this [third-party claim]
problem in the policies for this property. We would prefer to take exception
to the problem and provide affirmative coverage over it rather than issue a
clean policy. We prefer to reveal the problem and provide protection.
However, regardless of the existence or disposition
of the alleged cloud on the title of the subject property, the fact remains
uncontroverted by the evidence in the record before us that Blue Water was able
at all times to provide adequate title insurance under the clear terms of the
contract language.
We conclude that Blue Water fully complied
with its obligation to convey marketable title to Baird as agreed to by the
parties. Accordingly, Bairds claims that Blue Water breached the contract
terms regarding title and that Blue Water fraudulently or negligently misrepresented
its ability to convey title are manifestly without merit. The circuit court
correctly granted summary judgment in disposing of Bairds specious claims.
II. Attorney Fees
Baird also argues the trial court erred in awarding
Blue Water attorney fees. Specifically, it asserts two procedural defects concerning
Blue Waters request for fees: first, that Blue Water failed to make its request
for attorney fees in its pleadings, and, second, that the circuit court lacked
subject matter jurisdiction to consider the issue of attorney fees. We find
these arguments unavailing.
A. Request of Attorney Fees
We first find that, although Blue Water did not
make its request for attorney fees in its pleadings, its claim is not barred
under the circumstances of this case. To be sure, the general rule is that
a party is entitled to seek only that relief set forth in its pleadings. See
Premium Inv. Corp. v. Green, 283 S.C. 464, 474, 324 S.E.2d 72, 78 (Ct.
App. 1984). In this case, however, the record reveals Blue Water raised the
issue of attorney fees in the affidavit accompanying its October 2000 summary
judgment motion. Subsequently, during the May 2001 hearing on its motion for
summary judgment, Blue Water again sought the circuit courts consideration
of the attorney fees issue. Baird did not object, but rather stated: I just
wanted to make sure that if the court takes up that issue, that I have time
to respond to it. The circuit court acquiesced to Bairds request and granted
Blue Water leave to move for award of attorney fees upon thirty days notice
to Baird.
A hearing on the request for attorney
fees was held, during which Baird objected, for the first time, that the claim
was barred for failure to plead. The trial court ruled the request was allowed
under Rule 15(b), SCRCP, which allows amendment of the pleadings by express
or implied consent of the parties. See Rule 15(b), SCRCP (stating [w]hen
issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised
in the pleadings.) The decision to allow amendments under Rule 15(b) is entrusted
to the sound discretion of the trial judge, and the party opposing the amendment
bears the burden of establishing prejudice. Harvey v. Strickland, 350
S.C. 303, 313, 566 S.E.2d 529, 535 (2002). We are unable to discern any prejudice
to Baird in light of the fact that the issue of attorney fees was raised months
earlier. We find the issue of attorney fees was properly before the circuit
court.
B. Subject Matter Jurisdiction [2]
Baird argues the circuit court lacked jurisdiction
to entertain Blue Waters request for attorney fees. Specifically, Baird claims
that Blue Water failed to seek attorney fees in a timely manner because it did
not file a motion within the ten-day time period prescribed by Rule 54, SCRCP.
The rule provides in pertinent part that a motion for costs, supported by an
affidavit that the costs are correct and were necessarily incurred in the action,
may be filed by the prevailing party within 10 days of the receipt of written
notice of the entry of final judgment. Rule 54(d), SCRCP. Additionally, Rule
54(b), SCRCP, partially provides:
[w]hen more than one claim for relief is presented in an action
the court may direct the entry of a final judgment as to one or more but fewer
than all of the claims
upon an express determination that there is no just
reason for delay and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the claims or
the rights and liabilities of fewer than all of the parties shall not terminate
the action as to any of the claims or parties, and the order or other form of
decision is subject to revision at any time before the entry of judgment adjudicating
all the claims and the rights and liabilities of all the parties.
Here, the circuit courts order expressly recognized that
it reserved the matter of attorney fees for future determination. Under these
circumstances, the circuit courts continuing jurisdiction was in no manner
contingent upon Blue Water filing an additional motion within ten days following
the grant of summary judgment. Moreover, the order granting summary judgment
contained no Rule 54(b) express determination that there is no just reason
for delay of the formal entry of judgment. Thus, since the matter of attorney
fees was reserved, we find that the trial courts June 15, 2001 order cannot
be construed as an order disposing of all claims before the circuit court.
Accordingly, Bairds reliance on the ten-day filing period provided in Rule
54(d) is misplaced, and the circuit court had subject matter jurisdiction to
award attorney fees and costs to Blue Water.
AFFIRMED.
HEARN, C.J., HOWARD and KITTREDGE, JJ., concur.
[1] American Land Title Association.
[2] Blue Water argues that the issue
of subject matter jurisdiction is not properly before this court because Baird
raised it neither in the circuit court nor in its brief. It is true that,
[a]s a general rule, an issue may not be raised for the first time on appeal.
McKissick v. J.F. Cleckly & Co., 325 S.C. 327, 343, 479 S.E.2d
67, 75 (Ct. App. 1997). However, issues related to subject matter jurisdiction
may be raised at any time. Bunkum v. Manor Properties, 321 S.C. 95,
100, 467 S.E.2d 758, 761 (Ct. App. 1996). Thus, we find that the issue of
subject matter jurisdiction is properly before this court.