THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Thomas K. Burdette and Angie Burdette,
Appellants,
v.
Carl J. Turner, Odell Short, Baron Agency, Inc., Steve Conner & Rhonda
Conner, Respondents.
Appeal From Anderson County
Alexander S. Macaulay, Circuit Court
Judge
Unpublished No. 2004-UP-059
Submitted October 6, 2003 Filed January
29, 2004
AFFIRMED
Michael F. Mullinax, of Anderson for Appellants.
Reginald M. Gay and Robert P. Lusk, both of Anderson and
Rodney M. Brown, of Fountain Inn, for Respondents.
PER CURIAM: Thomas and Angie
Burdette (Buyers) appeal the circuit courts grant of summary judgment to
the defendants on their claims for breach of contract, violation of the Unfair
Trade Practices Act (UTPA), violation of the covenant of good faith and fair
dealing, and tortious interference with a contract. Buyers also appeal the
circuit courts grant of a directed verdict on their claims for conspiracy and
for punitive damages under Buyers cause of action for conversion. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Buyers contracted to purchase real property from
Carl J. Turner (Seller). The contract provided Seller would convey marketable
title to Buyers at a closing to occur between October 8, 1999 and October 23,
1999. Additionally, the contract required Buyers to deposit $500 in earnest
money with Sellers agent, the Baron Agency.
On October 13, 1999, Sellers broker, Odell Short
(Broker), met with Buyers to close on the property. However, Buyers stated
they believed the adjacent landowners, Steve and Rhonda Conner (Neighbors),
were in violation of the subdivisions restrictive covenants. Thus, Buyers
refused to close until Broker obtained assurance from Neighbors that they would
abide by the restrictive covenants.
To accommodate Buyers, Broker offered to speak
with Neighbors in attempt to obtain their written assurance. However, Broker
and Buyers did not discuss an extension of the closing deadline.
On October 15, 1999, Broker met with Neighbors
to discuss the restrictive covenants. During the meeting, Neighbors offered
to purchase the property in the event Buyers did not close. Broker then negotiated
a back-up contract, clearly marked as such, by which Neighbors agreed to purchase
the property from Seller in the event Buyers failed to close.
On October 23, 1999, Buyers contract expired. Thereafter,
the Baron Agency informed Buyers their failure to close constituted a breach
of contract entitling Seller to keep the $500 earnest money. Subsequently,
Neighbors purchased Sellers property pursuant to the back-up contract.
Buyers sued for: 1) breach of contract
against Seller; 2) violation of the UTPA against Seller, Broker and the Baron
Agency; 3) violation of the covenant of good faith and fair dealing against
Seller, Broker, the Baron Agency, and Neighbors; 4) tortious interference with
a contract against Broker, the Baron Agency, and Neighbors; 5) intentional interference
with a prospective contract against Broker, the Baron Agency, and Neighbors;
6) civil conspiracy against Seller, Broker, the Baron Agency, and Neighbors;
and 7) conversion against Seller and the Baron Agency.
The circuit court granted summary judgment in favor
of all of the defendants on the causes of action for breach of contract, violation
of the UTPA, violation of the covenant of good faith and fair dealing, tortious
interference with a contract, and intentional interference with a prospective
contract. [1]
The case proceeded to trial on the civil conspiracy
claim against Seller, Broker, the Baron Agency, and Neighbors and on the conversion
claim against Seller and the Baron Agency. At the close of Buyers case, the
circuit court granted the Baron Agencys motion for directed verdict on the
conversion action. Thereafter, at the close of the trial, the circuit court
granted Neighbors motion for directed verdict on the civil conspiracy action
and struck the claim for punitive damages against Seller in the conversion cause
of action. The jury returned a verdict in favor of Buyers on the conversion
action against Seller in the amount of $500 and found for the defendants on
the remaining causes of action. Buyers appeal.
LAW/ANALYSIS
Summary judgment is appropriate where
there is no genuine issue of material fact and it is clear the moving party
is entitled to judgment as a matter of law. Rule 56(c), SCRCP. If further
inquiry into the facts is necessary to clarify application of the law, summary
judgment is not appropriate. Tupper v. Dorchester County, 326 S.C. 318,
325, 487 S.E.2d 187, 191 (1997). Summary judgment should not be granted even
when there is no dispute as to evidentiary facts if there is dispute as to the
conclusion to be drawn from those facts. Id. The evidence and the
inferences drawn therefrom must be viewed in a light most favorable to the non-moving
party. Id.
I. Breach of Contract
Buyers argue the circuit court erred
by granting summary judgment on their breach of contract claim because questions
of fact exist. We disagree.
Where a contracts language is plain and
unambiguous, the language used by the parties determines the instruments force
and effect. Jordan v. Sec. Group, Inc., 311 S.C. 227, 230, 428 S.E.2d
705, 707 (1993). The judicial function of a court of law is to enforce a contract
as made by the parties, and not to rewrite or to distort, under the guise of
judicial construction, contracts, the terms of which are plain and unambiguous.
Hardee v. Hardee, 355 S.C. 382, 387, 585 S.E.2d 501, 503 (2003). It
is not the province of the courts to construe contracts broader than the parties
have elected to make them or to award benefits where none was [sic] intended.
Stewart v. State Farm Mut. Auto. Ins. Co., 341 S.C. 143, 151, 533 S.E.2d
597, 601 (2000).
The language utilized in the contract required
Seller to convey marketable title at a closing to occur between October 8, 1999
and October 23, 1999, with time being of the essence. However, at the closing
scheduled pursuant to the contract, Buyers refused to complete the transaction,
stating they would not close on the property without written assurance from
Neighbors they would abide by the subdivisions restrictive covenants. Broker
agreed to talk with Neighbors. However, no evidence exists indicating Broker
guaranteed he would satisfy Buyers concerns. Furthermore, no evidence exists
indicating the parties discussed altering provisions of Buyers contract with
Seller. Subsequently, the contract expired, and Seller sold the property to
Neighbors.
Brokers conversation with Buyers, indicating he would
speak to Neighbors, without more, is insufficient to alter the time provisions
of Buyers contract with Seller. See Sauner v. Pub. Serv. Auth. of
South Carolina, 354 S.C. 397, 405-06, 581 S.E.2d 161, 166 (2003) (holding
the necessary elements of a contract are an offer, acceptance, and valuable
consideration, and a written contract may be modified by a subsequent agreement
of the parties, provided the subsequent agreement contains all the requisites
of a valid contract). Thus, Buyers claim for breach of contract, if cognizable,
must be based on the terms of the written contract.
The written contract provided Seller must convey
marketable title to Buyers at a closing to occur between October 8, 1999, and
October 23, 1999, with time being of the essence. Buyer provides no argument
or authority, nor are we aware of any, to support the proposition that marketable
title includes an obligation on the part of a seller to force an adjoining landowner
to comply with restrictive covenants on the adjoining landowners property.
Additionally, Buyers claim Broker, as developer
of the subdivision and in his capacity as signatory to the restrictive covenants,
had a duty to enforce the covenants. As authority supporting this claim, Buyers
cite to the restrictive covenants. However, nowhere in the covenants document
is this duty imposed upon Broker, nor is the duty to enforce the covenants imposed
upon any specific individual. The covenants merely provide a legal right to
enforce the restrictions against anyone violating or attempting to violate a
covenant. [2]
It is undisputed that Seller was ready, willing,
and able to perform in accordance with the contract at all times between October
8 and October 23. However, Buyers, at the scheduled closing, refused to perform
and attempted to unilaterally alter provisions of the contract. Because the
contract states time was of the essence, and Seller was ready, willing, and
able to perform pursuant to the contract, Buyers cannot claim Seller breached
the contract merely because Seller sold the property to another following the
contracts expiration. See 17A Am. Jur. 2d Contracts § 716 (2003)
([B]reach[] . . . [of a contract] is . . . a failure . . . to perform any
promise which forms a whole or a part of a contract, including the refusal of
a party to recognize the existence of the contract or the doing of something
inconsistent with its existence.); see also Stewart, 341 S.C.
at 151, 533 S.E.2d at 601 (It is not the province of the courts to construe
contracts broader than the parties have elected to make them or to award benefits
where none was [sic] intended.). Thus, the circuit court did not err by granting
summary judgment.
II. Breach of Covenant of Good Faith and Fair Dealing
Buyers argue the circuit court erred by
granting summary judgment to Seller, Broker, the Baron Agency, and Neighbors
on the action for breach of covenant of good faith and fair dealing. We disagree.
Although implied covenants are not favored
in the law, . . . there exists in every contract an implied covenant of good
faith and fair dealing. Commercial Credit Corp. v. Nelson Motors, Inc.,
247 S.C. 360, 366-67, 147 S.E.2d 481, 484 (1966); Williams v. Riedman,
339 S.C. 251, 267, 529 S.E.2d 28, 36 (Ct. App. 2000). Thus,
whenever the cooperation of the promisee is necessary for
the performance of the promise, there is a condition implied that the cooperation
will be given. [Furthermore,] [w]hen one undertakes to accomplish a certain
result he agrees by implication to do everything to accomplish the result intended
by the parties . . . . Moreover, there is an implied undertaking in every contract
on the part of each party that he will not intentionally and purposely do anything
to prevent the other party from carrying out his part of the agreement, or do
anything which will have the effect of destroying or injuring the right of the
other party to receive the fruits of the contract.
17A Am. Jur. 2d Contracts § 380 (2003).
Initially, because no evidence exists
within the record indicating Neighbors had a contract with Buyers or were in
privity of contract with Seller in relation to the contract with Buyers, Neighbors
cannot be liable for a breach of a covenant of good faith and fair dealing.
See Commerical Credit, 247 S.C. at 368, 147 S.E.2d at 484 (holding
the covenant of good faith and fair dealing is implied in contractual relationships
and exists between the contracting parties). Thus, as to Neighbors, the circuit
court properly granted summary judgment.
As to Seller, Broker, and the Baron Agency, Broker
told Buyers he would speak with Neighbors concerning the violation of the restrictive
covenants. However, no evidence exists indicating Broker either guaranteed
he would remedy the violation or that the contract would be extended.
Broker spoke to Neighbors and they offered to buy
the property if Buyers did not close. Seller, Broker, and the Baron Agency
did not alert Buyers to the fact they signed a back-up contract. Furthermore,
they did not alert Buyers the time for performance under the contract was expiring.
Buyers contract expired without a closing, and, pursuant to the back-up contract,
Seller sold the property to Neighbors.
This evidence is insufficient, without more, to
establish a breach of the covenant of good faith and fair dealing, as it does
not indicate Seller, Broker, or the Baron Agency either: 1) engaged in some
act to prevent Buyers from performing under the contract; or 2) failed to do
some act, thus hindering Buyers ability to perform. Consequently, the circuit
court did not err by granting summary judgment.
III. Violation of the UTPA
Buyers argue the circuit court erred by
granting summary judgment to Seller, Broker, and the Baron Agency on Buyers
claim for violation of the UTPA. We disagree.
Under the UTPA, [u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or commerce
are . . . declared unlawful. S.C. Code Ann. § 39-5-20(a) (1985). Mere breach
of contract does not constitute a violation of the UTPA. South Carolina
Natl Bank v. Silks, 295 S.C. 107, 111, 367 S.E.2d 421, 423 (Ct. App. 1988).
To bring a private action under the UTPA, a party must prove the defendants
actions adversely affected the public interest. Daisy Outdoor Adver. Co.
v. Abbott, 322 S.C. 489, 493, 473 S.E.2d 47, 49 (1996). Unfair or deceptive
acts or practices have an impact upon the public interest if the acts or practices
have the potential for repetition. Crary v. Djebelli, 329 S.C. 385,
387, 496 S.E.2d 21, 23 (1998). The potential for repetition is demonstrated
by showing: (1) the same type of actions occurred before, making it likely the
actions will continue; or (2) the organizations policies or procedures create
a potential for repetition of the unfair and deceptive acts. Id. These
are not the only means of showing the potential for repetition, however, and
each case must be evaluated on its own merits. deBondt v. Carlton Motorcars,
Inc., 342 S.C. 254, 270, 536 S.E.2d 399, 407 (Ct. App. 2000).
In a light most favorable to Buyers, no
evidence exists within the record indicating the actions of Seller, Broker,
or the Baron Agency, if unfair or deceptive, had a public impact or a potential
for repetition. See Crary, 329 S.C. at 387, 496 S.E.2d at 23.
Thus, the circuit court properly granted summary judgment.
IV. Tortious Interference with Contractual Relations
Buyers argue the circuit court erred by granting
summary judgment on their claim for tortious interference with a contract.
We disagree.
To sustain an action for tortious interference
with a contract, a party must show (1) a contract; (2) the wrongdoers knowledge
thereof; (3) his intentional procurement of its breach; (4) the absence of justification;
and (5) the damage resulting therefrom. Kinard v. Crosby, 315 S.C.
237, 240, 433 S.E.2d 835, 837 (1993). A third party is liable for tortious
interference with a contract where one intentionally induces a party to the
contract not to perform. Threlkeld v. Christoph, 280 S.C. 225, 227,
312 S.E.2d 14, 16 (Ct. App. 1984). Generally, there can be no finding of intentional
interference with . . . contractual relations if there is no evidence to suggest
any purpose or motive by the defendant other than the proper pursuit of its
own contractual rights with a third party. United Educ. Distrib., LLC,
v. Educ. Testing Serv., 350 S.C. 7, 14, 564 S.E.2d 324, 328 (Ct. App. 2002).
As the circuit court properly held there was no
breach of contract in this case, there can be no intentional procurement of
a breach on the part of Neighbors, Broker, or the Baron Agency. Thus, the circuit
court properly granted summary judgment.
V.
Civil Conspiracy
Buyers argue the circuit court erred by
granting a directed verdict to Neighbors on the civil conspiracy cause of action.
[3] We disagree.
In reviewing a denial of motions for directed verdict,
the evidence and reasonable inferences that can be drawn therefrom must be viewed
in the light most favorable to the non-moving party. Brady Dev. Co. v. Town
of Hilton Head Island, 312 S.C. 73, 78, 439 S.E.2d 266, 269 (1993); Evans
v. Taylor Made Sandwich Co., 337 S.C. 95, 99, 522 S.E.2d 350, 352 (Ct. App.
1999). The motion should not be granted where the evidence yields more than
one inference or its inference is in doubt. Evans, 337 S.C. at 99,
522 S.E.2d at 352. When considering the motion, neither the appellate court
nor the circuit court has authority to decide credibility issues or to resolve
conflicts in the testimony and evidence. Reiland v. Southland Equip. Serv.,
Inc., 330 S.C. 617, 634, 500 S.E.2d 145, 154 (Ct. App. 1998).
In order to establish a claim for civil
conspiracy, a plaintiff must demonstrate a combination of two or more persons
joining for the purpose of injuring the plaintiff and causing special damage
to the plaintiff. LaMotte v. Punch Line of Columbia, Inc., 296 S.C.
66, 69, 370 S.E.2d 711, 713 (1988). Lawful acts may become actionable as a
civil conspiracy when the object is to ruin or damage the business of another.
Gynecology Clinic, Inc., v. Cloer, 334 S.C. 555, 556, 514 S.E.2d 592,
592 (1999).
The evidence within the record indicates
Neighbors were unaware Buyers adjacent lot was for sale until they received
a telephone call from Broker concerning the violation of the restrictive covenants.
Furthermore, the evidence indicates that even after creating the back-up contract
with Seller, Neighbors had no expectation the contract would become effective.
Moreover, entering into a backup contract does not infer the parties conspired
to ruin or damage Buyers opportunity to close. As no other evidence exists
within the record indicating Neighbors acted in conjunction with any party to
interfere with Buyers contract, the circuit court properly granted Neighbors
motion for directed verdict.
CONCLUSION
Based on the foregoing, the circuit courts
decision is
AFFIRMED.
STILWELL, HOWARD, and KITTREDGE, JJ., concurring.
[1] Appellants did not appeal the grant of summary
judgment on the claim for intentional interference with a prospective contract.
[2] Additionally, Buyers failed to provide any legal
authority supporting this position. Therefore, we deem it abandoned.
[3] Additionally, Buyers argue the circuit court erred by granting a
directed verdict to Neighbors and Broker on the issue of punitive damages
after raising the issue on its own motion. However, Buyers failed to object
to the circuit courts sua sponte ruling on punitive damages, and therefore,
this issue is not preserved for appellate review. See Bryant v.
Waste Mgmt, Inc., 342 S.C. 159, 172, 536 S.E.2d 380, 387 (Ct. App. 2000)
(holding appellant must object on contested ground during trial to preserve
the ground for appellate review); see also Staubes v. City of Folly
Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (holding that issues
not raised and ruled upon by the circuit court will not be considered on
appeal).