Midland Parkway v. Touras

• Court: Court of Appeals of South Carolina
• Decided: February 6, 2008
• Docket: 2008-UP-083
• Status: Unpublished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

Midland Parkway Associates, LLP, Appellant,

v.

George Touras, Equity Properties and Development Company, Wilmington Trust Company, as Trustee for Southland-Summerville W. D. Delaware Business Trust, and Principal Mutual Life Insurance Company, Respondents.

---

Appeal From Dorchester County
 James C. Williams, Jr., Circuit Court Judge

---

Unpublished Opinion No. 2008-UP-083
Submitted December 1, 2007 – Filed February 6, 2008

---

AFFIRMED

---

William C. Cleveland, of Charleston, for Appellant.

Michael A. Scardato, Robert L. Widener, both of Charleston; Michael Sher, of Chicago, for Respondents.

PER CURIAM:  Midland Parkway Associates, LLP (Midland) brought this action against George Touras, Equity Properties and Development Company, Wilmington Trust Company, as Trustee for Southland-Summerville W. D. Delaware Business Trust, and Principal Mutual Life Insurance Company (collectively Wilmington).  Midland sought specific performance of an alleged oral agreement to convey real estate between Midland and Wilmington.  The trial court granted summary judgment in favor of Wilmington on Midland’s causes of action for breach of contract, fraudulent misrepresentation, violation of the South Carolina Unfair Trade Practices Act (UTPA), and promissory estoppel.  We affirm.[1]

FACTS

Robert Irick is the managing partner of Midland.[2]  In July of 1999, Midland purchased a parcel of land located in Summerville, South Carolina (Midland Parcel).  Following the closing, Midland constructed an apartment complex on the Midland Parcel.

During construction, Midland discovered a water problem on the Midland Parcel.  According to Midland, water migrated onto the Midland Parcel from an adjacent property leased by Winn-Dixie and owned by Wilmington.  The migrating water allegedly caused damage to the Midland Parcel including a snake infestation and “bubbling” of the asphalt parking lot.

On September 27, 2001, Irick sent a letter to Wilmington’s counsel, Douglas Lubelchek, proposing: (1) Wilmington deed Midland .878 acres of property leased by Winn-Dixie; (2) Midland accept the drainage and bear any expense of additional drainage construction; (3) Midland ensure zoning would not be adversely affected; and (4) Midland indemnify Wilmington for any damage.  Midland sent a similar letter to a Winn-Dixie representative, who orally agreed to “encourage [Wilmington] to cooperate with [Midland].”  Irick and Lubelchek engaged in several phone calls, and according to Irick, they reached an oral agreement to the conveyance of the property.  Irick allegedly asked Lubelchek, “to make [it] clear . . . what needs to be done, [to] put [it] in writing and . . . [Lubelcheck] said that he would.”  Irick believed this conversation occurred sometime in February of 2002.  The only writing evidencing the alleged agreement is a February 19, 2002 letter from Lubelchek to Irick stating:   

[p]ursuant to our conversations regarding the wetland area owned by [Wilmington] . . . this letter will confirm the parties’ understanding regarding the conveyance of a portion of the wetland area to Midland.

Owner will consider conveying . . . .878 acres . . . provided the following conditions are satisfied prior to the conveyance, all at Midland’s sole cost and expense; if any . . . .

(emphasis added).  In the letter, Wilmington enumerated conditions precedent to any conveyance including: (1) Wilmington obtains all necessary consents from its lender; (2) Wilmington obtains necessary waivers from Winn-Dixie; (3) Midland prepares and submits all plans and plats; (4) Midland prepares an easement; (5) Midland obtains all permits or approvals; (6) Midland cooperates with regard to any zoning changes; (7) Midland bears all costs, including attorney fees; and (8) Midland obtains approval from the City of Summerville regarding zoning.

Irick believed this letter constituted a binding and enforceable agreement between Midland and Wilmington requiring Wilmington to convey the wetland and border parcels if the conditions precedent were met.

Following the Irick/Lubelchek telephone conversation, but prior to the February 19 letter, Irick informed his attorney, Lewis Horton, that Midland and Wilmington had resolved the drainage problem.  After Horton reviewed the February 19 letter, however, he told Irick the letter did not indicate an “unequivocal commitment” to convey and the letter did not “dovetail, so to speak” with Irick’s description of the agreement. 

Thereafter, Horton sent Lubelchek a letter requesting confirmation of the oral agreement.  In Horton’s August 28, 2002 letter, he requested Lubelchek “advise immediately of its intention” and to proceed to address the conditions precedent required to be performed by Wilmington.  Horton recalled one follow-up telephone conversation with Lubelchek, but received no responsive correspondence.

Subsequently, Horton communicated with Jennifer Desser, Lubelcheck’s associate.  By e-mail dated October 9, 2002, Dresser informed Lubelchek of her continuing conversations with Irick and described the February 19 letter as “setting forth conditions to [Wilmington’s] willingness to convey the property.” 

By later dated November 8, 2002, Horton requested a response from Wilmington within ten days.  The record does not reflect a response.  In a later e-mail to Lubelchek, Horton made no mention of Midland’s desire to obtain the wetland and border parcels, but requested a “letter [from Wilmington] committing to handle the surface water nuisance problem currently existing on [its] property.”[3]

After receiving no response from Wilmington’s counsel on either the proposed conveyance or the drainage problem, Horton e-mailed Lubelchek and requested an immediate response, asking whether Wilmington would: 

1. Convey the property in satisfaction of any and all claims as originally discussed.

2. Convey the property for consideration including satisfaction of any and all claims.

3. Give a commitment to handle the surface water drainage problem on [Wilmington’s] property so as to allow [Midland] to build a maximum of 48 additional units on their own property.

4. Ignore the problem . . . .

Once again Wilmington did not respond and Midland filed this action alleging, inter alia, breach of contract, fraudulent misrepresentation, violation of the UTPA, and promissory estoppel.  The trial court granted Wilmington summary judgment on all causes of action.  This appeal followed. 

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, appellate courts apply the same standard governing the trial court under Rule 56(c), SCRCP.  Walsh v. Woods, 371 S.C. 319, 324, 638 S.E2d 85, 88 (Ct. App. 2006).  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.  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.  Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004).

LAW/ANALYSIS

I.  Existence of Valid and Enforceable Agreement

Midland contends the trial court erred in finding as a matter of law that no valid, enforceable contract existed.  We disagree. 

The essential terms of a contract are offer, acceptance of the offer, and valuable consideration.  Sauner v. Pub. Serv. Auth. of South Carolina, 354 S.C. 397, 406, 581 S.E.2d 161, 166 (2003).  In order to have a valid and enforceable contract, there must be a meeting of the minds between the parties with regard to all essential and material terms of the agreement.  Patricia Grand Hotel v. MacGuire Enters., 372 S.C. 634, 638, 643 S.E.2d 692, 694 (Ct. App. 2007).  The “meeting of the minds” requirement cannot be met by the “secret purpose or intention on the part of one of the parties, stored away in his mind and not brought to the attention of the other party, but must be based on purpose and intention which has been made known or which, from all the circumstances, should be known.”  Player v. Chandler, 299 S.C. 101, 105, 382 S.E.2d 891, 894 (1989).    

The record before us evinces no meeting of the minds between Midland and Wilmington.  There is no indication essential terms were discussed. Instead, there is only Irick’s belief that a verbal understanding was reached and a letter from Wilmington’s counsel stating Wilmington would “consider” conveying the wetland parcel provided certain conditions were satisfied.  Furthermore, Midland’s own attorney counseled Irick that the February 19 letter was not an “unequivocal commitment” to convey.  We agree the February 19 letter does not contain the essential terms of a contract and find no error in the trial court’s legal finding that no contract existed.

II.  Statute of Frauds

Midland Parkway argues the trial court erred in finding the statute of frauds barred the enforcement of any oral agreement.  We disagree. 

A.  Sufficiency of Writings

Midland Parkway argues sufficient writings memorializing the alleged agreement exist.  We disagree.

Pursuant to the South Carolina Statute of Frauds, any contract for an interest in land must be in writing and signed by the party against whom enforcement is sought. S.C. Code Ann. § 32-3-10(4) (2007).  A writing sufficient to remove an oral agreement from the Statute of Frauds “must reasonably identify the subject matter of the contract, sufficiently indicate a contract has been made between the parties, and state with reasonable certainty the essential terms of the agreement.”  Smith v. McClam, 289 S.C. 452, 456, 346 S.E.2d 720, 723 (1986). 

In this case, no sufficient writing exists to satisfy the Statute of Frauds.  Midland contends the February 19 Letter from Lubelchek and the October 9, 2002 e-mail from Dresser together satisfy the writing requirement.  However, neither the letter nor the e-mail sufficiently describes the elements essential for a contract for the conveyance of land.  As previously discussed, the February 19 letter does not contain the essential terms of an agreement.  The e-mail merely explains Irick’s continued interest in the property and describes the status of the February 19 requirements.  These writings, individually or read together, fail to satisfy the writing requirement of the Statute of Frauds.   Accordingly, we find the trial judge did not err in granting summary judgment.

B.  Part Performance Exception to the Statute of Frauds

Midland argues its part performance of the contract is sufficient to avoid the Statute of Frauds.  We find this issue not preserved for our review.  An issue cannot be raised for the first time on appeal but must have been raised to and ruled upon by the trial court.  Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000).  In this case, the trial court did not rule on the part performance exception to the Statute of Frauds.  Accordingly, this issue is not preserved for our review.

III.  Promissory Estoppel

Next, Midland argues the court erred in not finding Wilmington estopped from denying the contract.  We disagree. 

The elements of promissory estoppel are: “(1) the presence of a promise unambiguous in its terms; (2) reasonable reliance upon the promise by the party to whom the promise is made; (3) the reliance is expected and foreseeable by the party who makes the promise; and (4) the party to whom the promise is made must sustain injury in reliance on the promise.”  Rushing v. McKinney, 370 S.C. 280, 295, 633 S.E.2d 917, 925 (Ct. App. 2006) (emphasis omitted).

Midland failed to show the existence of an unambiguous promise.  As discussed above, no evidence in the record indicates a meeting of the minds as to the alleged agreement.  The letter indicating Wilmington would “consider” conveying the wetland parcel is ambiguous, as explained to Irick by Midland’s counsel.  We find no error by the trial court in denying Midland recovery on its claim of promissory estoppel.

IV.  Fraudulent Misrepresentation

Midland argues the trial court erred in finding insufficient evidence to maintain a claim for fraudulent misrepresentation.  We disagree.

“The elements of an action for fraud based on a representation include:  1) a representation; 2) falsity; 3) its materiality; (4) knowledge of the falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance upon its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.”  Redwend Ltd. Partnership v. Edwards, 354 S.C. 459, 473, 581 S.E.2d 496, 503-04 (Ct. App. 2003).  All elements in an action for fraudulent misrepresentation must be met.  See O’Shields v. Southern Fountain Mobile Homes, Inc., 262 S.C. 276, 281, 204 S.E.2d 50, 52 (1974) (finding lack of any one of the elements of fraudulent misrepresentation fatal to recovery). 

In this case, even if we assume all other elements are met, Midland fails to establish the element of the right to rely on the alleged misrepresentation.  Whether reliance is justified requires the court to review the attendant circumstances.  Elders v. Parker, 286 S.C. 228, 233, 332 S.E.2d 563, 567 (Ct. App. 1985).  The general rule is that questions concerning reliance and its reasonableness are for the jury.  Unlimited Servs., Inc. v. Macklen Enters., 303 S.C. 384, 387, 401 S.E.2d 153, 155 (1991).  However, the trial court may rule on the reasonableness of the reliance as a matter of law where the party asserting the misrepresentation fails to provide evidence of a factual dispute on the issue.  See Moorhead v. First Piedmont Bank & Trust Co., 273 S.C. 356, 360, 256 S.E.2d 414, 416 (1979) (finding no jury issue on question of reasonableness of reliance).

We find the trial court did not err in finding Midland’s did not reasonably rely on a misrepresentation by Wilmington.  Even assuming Irick could reasonably rely on an oral representation by Libelcheck in a telephone conversation, the February 19 Letter and Midland’s counsel’s advice rendered any further reliance on the alleged agreement unreasonable as a matter of law. 

V.  South Carolina Unfair Trade Practices Act

Finally, Midland contends it is entitled to proceed on its claim under the UTPA.   We find Midland abandoned this issue.

An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.  Glasscock, Inc. v. United States Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001).  In the present case, Midland failed to cite any authority in support of its argument that it was entitled to proceed on its UTPA claim.  Accordingly, this court need not consider this issue on appeal.

CONCLUSION

For the foregoing reasons, we find the trial judge properly granted summary judgment on all of Midland’s causes of action.  Accordingly, the trial judge’s order is

AFFIRMED.

ANDERSON, SHORT, and WILLIAMS, JJ., concur.

---

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  His brother, Lawton Irick, is the only other partner. 

[3]  Midland intended to build additional units on its existing property and the number of units it could construct depended on whether Wilmington would handle the drainage problem on its own property or whether Midland would be required to construct a retention pond, thereby decreasing the amount of land available for construction.