King v. Island Club

• Court: Court of Appeals of South Carolina
• Decided: February 10, 2005
• Docket: 2005-UP-107
• Status: Unpublished

Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Charles W. King, Plaintiff, v. Island Club Apartments, a South Carolina Limited Partnership, and Finlay Properties, Inc., its general partner, Defendants, Island Club Apartments, a South Carolina Limited Partnership, and Finlay Properties, Inc., its general partner, Third-Party Plaintiffs, Mark du Mas and The Paces Foundation, Inc., a Georgia Corporation, Third-Party Defendants, Of Whom Island Club Apartments, a South Carolina Limited Partnership, and Finlay Properties, its general partner, are,

Appellants,

And Mark du Mas and The Paces Foundation, Inc., a Georgia Corporation, are,

Respondents.

---

Appeal From Beaufort County
Thomas Kemmerlin, Special Circuit Court Judge

---

Unpublished Opinion No.  2005-UP-107
Heard January 10, 2005 – Filed February 10, 2005

---

AFFIRMED

---

Stephen A. Husman and Vernon F. Dunbar, of Columbia, for Appellants.

Gregory F. Harley and Marvin H. Dukes, III, of Beaufort, for Respondents.

PER CURIAM: Island Club Apartments, a South Carolina Limited Partnership, and Finlay Properties, Inc., its general partner (collectively Island Club), filed a third-party complaint against Mark du Mas and The Paces Foundation, Inc. (collectively du Mas), alleging du Mas: intentionally interfered with the contractual relationship between Island Club and Charles King, intentionally interfered with Island Club’s prospective relationships regarding future development and construction contracts, and engaged in a civil conspiracy to extort an ownership interest in Island Club’s project.  Island Club appeals from the trial court’s grant of summary judgment in favor of du Mas on all claims.  We affirm.

FACTS

King and Island Club entered into a contract on April 22, 1999, for Island Club to purchase a tract of land from King for $450,000.00. Island Club planned to develop a low-income apartment complex on the property utilizing state tax credit financing. In order to obtain the financing, Island Club had to close on the project no later than November 15, 1999, which was provided in the contract.  Additionally, the contract required Island Club to immediately pay $2,500.00 and deposit $27,500.00 into escrow.  The balance of the purchase price was to be paid at the closing. 

Following the execution of the contract, Island Club had difficulty obtaining the required permits for the project.  The delay led Island Club to seek amendments to the purchase contract, which would allow for the closing to occur without simultaneous payment of the remainder of the purchase price.  King accepted changes to the original contract by letter.  Pursuant to these changes, King would receive a payment of $15,000 towards the purchase price at the closing on November 12, 1999; Island Club would pay $1,500 to defray any fees incurred by King; and Island Club would provide a promissory note for the remainder of the purchase price due, payable on February 15, 2000. 

According to Island Club, King agreed to further changes to the contract during a telephone call on November 11, 1999.  The alleged oral agreement extended the date of the promissory note until April 30, 2000, applied the $15,000 payment to closing costs, and increased the purchase price to $460,000. 

Although the letter changed the closing date to November 12, 1999, the parties met on November 15, 1999 to close the transaction. Prior to closing, King met with du Mas, seeking advice regarding the transaction and its structure because du Mas was familiar with tax credit financing. At the closing, du Mas asked questions on behalf of King regarding the real estate deal and Island Club’s plans. 

Island Club presented closing documents which reflected the alleged oral agreement rather than the written contract or the modifications made in the letter.  King refused to proceed under the terms of the oral contract and required the parties to close pursuant to the original written contract, including the $450,000 payment. Subsequently, King offered to sell the property if he received $100,000 at closing.  Island Club presented testimony that du Mas offered to loan the money to Island Club in exchange for an equity share of the project, though du Mas denied making such an offer.   

Regardless of what du Mas did or did not do, it is undisputed that Island Club never tendered closing documents reflecting the original contract or the terms of the written modification.  Additionally, Island Club was not prepared to abide by the contract or the modification, which required additional monies at the time of closing.  Because the parties could not agree on the terms of the sale, the closing never took place.

King brought a declaratory judgment action seeking a determination of the parties’ respective rights under the written contracts.  Island Club filed counterclaims against King for breach of contract and civil conspiracy, among other claims. [1]   Island Club also brought a third party action against du Mas.  The third-party complaint alleged du Mas interfered with the contractual relations between King and Island Club and prohibited the closing from proceeding according to the oral agreement.  Additionally, the complaint alleged du Mas interfered with the prospective relationships Island Club would form and would benefit from in the development and construction of the project.  Finally, the complaint asserted du Mas and King conspired to change the terms of the contract to Island Club’s detriment and du Mas attempted to extort an ownership interest in the project by changing the terms on the date of the closing. 

The trial court granted du Mas’s motion for summary judgment as to all claims in Island Club’s third-party complaint.  The court found Island Club presented no evidence that King breached any enforceable contract or that du Mas induced any breach.  The court found du Mas did not interfere with prospective relations between Island Club and Finlay because Finlay is Island Club’s general manager and the two integrally related entities would not cease doing business simply because this particular real estate closing did not occur.  Additionally, the court found there was no evidence du Mas was the reason the real estate closing was not consummated.  Finally, the court found the evidence did not support the remaining substantive claim of a civil conspiracy, and in addition, Island Club failed to plead special damages.      This appeal followed.

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, this court applies the same standard which governs the trial court:  summary judgment is proper when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”  Rule 56(c), SCRCP; Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 114-15, 410 S.E.2d 537, 545 (1991).  “On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non‑moving party below.”  Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).

LAW/ANALYSIS

I.       Enforceable Contract

Island Club first asserts the trial court erred in finding the oral modifications were not enforceable or that the closing documents submitted were not sufficient evidence of the contract between King and Island Club.  We disagree and find the trial court properly held the oral modifications were unenforceable. 

The trial court properly relied upon the Statute of Frauds in determining:  “Under South Carolina law, a contract for the sale of land must be in writing to be enforceable.” S.C. Code Ann. § 32-3-10 (Supp. 2003).  Pursuant to Camp v. Springs Mortgage Corp., 310 S.C. 514, 517, 426 S.E.2d 304, 305 (1993), the claim may only be based on the existence of a valid contract.  Island Club’s attorney admitted in his deposition that none of the oral modifications were ever placed in writing.  

Island Club also seems to contend the closing documents it provided for signature on November 15, 1999, are evidence of the alleged modifications encompassed in their phone conversation. The documents do not appear in the record on appeal, and therefore, they may not be considered by this court.  See Rule 210, SCACR.  Furthermore, just as the oral modifications themselves fail to satisfy the Statute of Frauds, so too would the closing documents because there is no indication the documents were signed by King.  If King did not sign them, he cannot be held to their contents under section 32-3-10.  Accordingly, we must look solely to the written, original contract and the letter modifying the terms of the original contract, which were both signed by King, to determine whether there was any interference by du Mas.

II.      Intentional Interference with Contractual Relations

Island Club next contends the trial court erred in finding there was no evidence of interference by du Mas in enticing King not to go forward with the real estate closing on November 15.  Additionally, Island Club contends the court erred in finding du Mas was not a stranger to the contract, but was instead a consultant or agent of King.  We disagree.

As found by the trial court:

Under South Carolina law, a plaintiff must establish the following elements to prevail on a claim for intentional interference with contractual relations: (1) the existence of a valid contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) resulting damages. Camp v. Springs Mortgage Corp., 310 S.C. 514, 517, 426 S.E.2d 304, 305 (1993).

The trial court found that du Mas was entitled to summary judgment on the intentional interference with contractual relations cause of action because, among other reasons, there was no evidence that King breached an enforceable contract.  We agree.

As found above, the only enforceable contract was the original written contract as modified by the letter signed by King on November 1, 1999.  Accordingly, Island Club must show evidence that King breached this contract to support its claim.

Island Club never presented any evidence of a breach of the written contract by King.  It is well-settled that “[o]ne who seeks to recover damages for breach of a contract, to which he was a party, must show that the contract has been performed on his part, or at least that he was, at the appropriate time, able, ready, and willing to perform it.”  Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 487, 514 S.E.2d 126, 135 (1999) (quoting Parks v. Lyons, 219 S.C. 40, 48, 64 S.E.2d 123, 126 (1951)).  Here, Island Club came to the closing prepared only to close in accordance with the oral modifications to the agreement.  The promissory note Island Club produced was due April 30th and not February 15th.  The HUD-1 statement indicated the monies were in accordance with the oral modifications and not the written agreements.  It was only after Island Club sought to close pursuant to the oral modifications that King required the agreement to be completed pursuant to the original contract, which called for a $450,000 cash payment at closing.

Because Island Club provided no evidence that it attempted to close in accordance with the written agreements, it cannot now complain that King breached the contract.  See id.  Accordingly, we find the trial court properly determined Island Club failed to present sufficient evidence of a genuine issue of material fact regarding whether King breached the written contracts and du Mas intentionally interfered with the contract. [2]

III.    Intentional Interference with Prospective Relations

Island Club contends the trial court erred in granting du Mas summary judgment on its claim of intentional interference with the prospective contract between Island Club and Finlay.  We disagree and find the trial court properly granted summary judgment to du Mas.

The tort of intentional interference with prospective contractual relations was first recognized in the case of Crandall Corp. v. Navistar [Intern.] Transp. Corp., 302 S.C. 265, 395 S.E.2d 179 (1990).  The elements of the cause of action are (1) the intentional interference with the plaintiff's potential contractual relations, (2) for an improper purpose or by improper methods, (3) causing injury to the plaintiff.

 Love v. Gamble, 316 S.C. 203, 214, 448 S.E.2d 876, 882 (Ct. App. 1994).

The Love case also explains what is required to show improper methods necessary to support such a claim. 

Methods of interference considered improper are those means that are illegal or independently tortious, such as violations of statutes, regulations, or recognized common-law rules.  Improper methods may include violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship. 

Methods also may be improper because they violate an established standard of a trade or profession, or involve unethical conduct.  Sharp dealing, overreaching, or unfair competition may also constitute improper methods. 

Id., at 215, 448 S.E.2d at 882-83 (quoting Duggin v. Adams, 360 S.E.2d 832, 836-37 (1987) (citations omitted)).

The trial court specifically found du Mas could not possibly interfere with the relations between Finlay and Island Club because they were essentially the same entity – Finlay was Island Club’s general partner.  The court also concluded there was no evidence of wrongdoing on the part of du Mas. We agree there was no evidence of wrongdoing.  In the deposition testimony of representatives of Island Club, no representative could point to any specific method used or anything said by du Mas which caused King to back out of the sale of land, which is the basis for the prospective relationship between Finlay and Island Club.  The only contention raised was the offer by du Mas to loan $100,000 in exchange for an equity interest.  However, the parties admitted it occurred after Island Club sought to close pursuant to the oral modifications and King demanded a cash payment in order to close on November 15.

Additionally, it was admitted by attorneys representing Island Club and Finlay that they did not recall anything du Mas said at the closing that was not true or was a misrepresentation.  Accordingly, the trial court properly concluded there was no genuine issue of material fact as to whether du Mas intentionally interfered with the prospective relations between Island Club and Finlay.

IV.    Civil Conspiracy

Island Club’s final claim is that the trial court erred in finding there was no evidence of a civil conspiracy between King and du Mas.  We disagree.

The trial court found:

[I]n order for a claim for conspiracy to go forward, the plaintiff must plead and prove special damages, not simply reallege conduct and damages arising from other torts.  See Vaught v. Waites, 300 S.C. 201, 208, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989).  In this case, Third Party Plaintiffs have done neither. The facts and damages asserted appear to be identical to the facts and damages alleged in support of their other contract and claims.

Island Club does not appeal this finding in its brief.  Accordingly, Island Club is bound by this unappealed ruling.   See Charleston County Sch. Dist. v. South Carolina State Dairy Comm’n, 274 S.C. 250, 252, 262 S.E.2d 901, 902 (1980) (a party who does not appeal from an adverse decision is bound by the decision); Dwyer v. Tom Jenkins Realty, Inc., 289 S.C. 118, 120, 344 S.E.2d 886, 888 (Ct. App. 1986) (unchallenged alternative findings can support a judgment).  Additionally, there is ample evidence to support the finding of the trial court because the complaint merely realleges the same damages, which were caused by the claims of interference with contractual and prospective relations.   Thus, we affirm the trial court’s grant of summary judgment in favor of du Mas on this issue.

CONCLUSION

We find the trial court properly granted summary judgment to du Mas on Island Club’s claim that he intentionally interfered with the contract between King and Island Club because Island Club failed to provide evidence of a breach of an enforceable contract between the parties.  We also conclude the court properly found Island Club failed to provide evidence to support its claim that du Mas intentionally interfered with the prospective relationship between Island Club and Finlay.  Finally, we find the trial court properly granted summary judgment to du Mas on Island Club’s claim that he entered a civil conspiracy with King to injure Island Club. [3]   Accordingly, the decision of the trial court is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.

---

[1] These claims are not the subject of this appeal.  The sole claims on appeal arise from Island Club’s third-party complaint against du Mas.

[2] Because we find that no breach of contract occurred, we need not address Island Club’s argument that the trial court erred in finding du Mas was a stranger to the contract.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining that the appellate court need not address remaining issues when disposition of prior issues is dispositive). 

[3] Because we find the trial court properly granted summary judgment to du Mas on all claims raised by Island Club, we need not address the issue regarding the limitation of damages to $50,000.  See Futch, 335 S.C. at 613, 518 S.E.2d at 598 (explaining that the appellate court need not address remaining issues when disposition of prior issues is dispositive).