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
Premier Holdings, LLC, a Utah Limited Liability Company, and
Premier Resorts, International, Inc., a Delaware corporation, Respondents,
v.
Barefoot Resort Golf Club II, LLC, a South Carolina Limited
Liability Company, Appellant.
Appeal
From Horry County
J.
Stanton Cross, Jr., Master-in-Equity
Unpublished
Opinion No. 2008-UP-336
Submitted
June 2, 2008 Filed July 2, 2008
AFFIRMED
C.
Mitchell Brown, of Columbia, and Ian S. Ford, of Charleston, for Appellant.
J.
Jackson Thomas, of Myrtle Beach, for Respondents.
PER
CURIAM:
Barefoot Resort Golf Club, II, LLC (Barefoot) appeals inter alia the
masters finding that it breached a valid contract with Premier Holdings, LLC
and Premier Resorts, International, Inc. (collectively Premier). We affirm.[1]
FACTS
Barefoot is owner and
operator of three golf courses at the Barefoot Resort in North Myrtle Beach, South Carolina.[2]
Premier manages large, condominium-resort properties throughout the United States and Mexico and manages properties at the Barefoot Resort. Legends Barefoot had borrowed
three million dollars from Premier in July of 2002 to pay for purchasing its
interest in the courses. The parties agreed to an extension of the loan in July
of 2003. They executed numerous documents in conjunction with the extension of
the loan. One of these documents was a Shared Services Agreement (SSA). The
SSA provided several benefits to Premier to help ensure the availability of
golf tee times for clients of Premier. These benefits included giving Premier
control of the tee time sheets for Barefoot, blocking certain tee times for
Premier customers and paying Premier a four percent commission on all golf tee
times booked by Premier.
In January of 2005,
Barefoot took control of the tee time sheets away from Premier. Premier filed
suit for breach of contract alleging Barefoot had violated the provisions of
the SSA. Barefoot answered alleging the SSA was not an enforceable contract
because it lacked material terms, specifically, a contract duration. The
master-in-equity found the contract was enforceable and the duration of the
contract was for as long as Premier continued doing business at Barefoot. The
master further held Barefoot had breached the SSA and awarded Premier damages
in the amount of $161,369. Barefoot appeals.
STANDARD OF
REVIEW
An action to construe a contract is an action at law. Likewise, [a]n
action for breach of contract seeking money damages is an
action at law. Silver v. Aabstract Pools & Spas, Inc., 376 S.C.
585, 590, 658 S.E.2d 539, 541-42. (Ct. App. 2008) (quoting R & G
Constr., Inc. v. Lowcountry Regl Transp. Auth., 343 S.C. 424, 430, 540
S.E.2d 113, 117 (Ct. App. 2000)). On appeal from a final judgment of the
master in a law case tried without a jury, we may not consider the case based
on our own view of the preponderance of the evidence, but must view the record
so as to support the masters findings of fact whenever reasonably possible. South Carolina Fed. Sav. Bank v. Thornton-Crosby Dev. Co., 303 S.C. 74, 78,
399 S.E.2d 8, 11 (Ct. App. 1990) (citing Sheek v. Crimestoppers Alarm Sys.,
297 S.C. 375, 377 S.E.2d 132 (Ct. App. 1989)). In other words, we must
consider the evidence in the light most favorable to the respondent,
eliminating from consideration evidence to the contrary. Id. at 79,
399 S.E.2d at 11.
LAW/ANALYSIS
I. Enforceability
of Contract/Duration of Contract[3]
Barefoot
argues the master erred in finding the SSA to be a valid and enforceable
contract where material terms were omitted. We disagree.
It
is well settled in South Carolina that in order for there to be a binding
contract between parties, there must be a mutual manifestation of assent to the
terms. Edens v. Laurel Hill, Inc., 271 S.C. 360, 364, 247
S.E.2d 434, 436 (1978). Some terms are considered indispensable to a binding
contract. Among these are price, time and place. Id. However,
as noted by the master in his order, the requirement of a specific duration for
the enforcement of a contract is not limited solely to a calendar date, but may
be provided upon the occurrence of a specific event. Prestwick Golf Club,
Inc. v. Prestwick Ltd. Pship, 331 S.C. 385, 392, 503 S.E.2d 184, 187-88
(Ct. App. 1998).
Although
the interpretation of a contract is generally a matter of law, the intent of
the parties becomes a question of fact . . . when the contract is ambiguous. Id. at 390, 503 S.E.2d at 187. An ambiguous contract is a contract capable of
being understood in more than one way or a contract unclear in meaning because
it expresses its purpose in an indefinite manner. HK New Plan Exchange
Prop. Owner I, LLC v. Coker, 375 S.C. 18, 24, 649 S.E.2d 181, 184 (Ct. App.
2007). When a contract is ambiguous, the courts primary objective must be to
discern the intent of the parties. Ecclesiastes
Prod. Ministries v. Outparcel Assocs., 374
S.C. 483, 497, 649 S.E.2d 494, 501 (Ct.
App. 2007). In ascertaining intent, the court will examine the
totality of the contract and the language used by the parties. The court will
also strive to discover the situation of the parties, along with their purposes
at the time they entered the contract. Id. at 498, 649 S.E.2d at 502. In
arriving at the intention of the parties . . . , the subject matter, the
surrounding circumstances, the situation of the parties, and the object in view
and intended to be accomplished by the parties at the time, are to be regarded. Id. at 499, 649 S.E.2d at 502 (quoting Brady v. Brady, 222 S.C. 242, 246-47, 72 S.E.2d 193, 195
(1952)).
We agree with the masters finding the duration of the SSA is
ambiguous as the parties intent is not clearly discernable from the language
of the SSA. We believe the testimony in the record reasonably supports the
masters finding the parties intended the SSA to be in effect for so long as
Premier was doing business at Barefoot. Bradley Goulding, part owner and chief
operating/financial officer of Premier Resorts International, testified Premier
would not have entered into the loan-extension agreement without the SSA. He further
testified Premier was making a long-term investment in the Myrtle Beach area
and would need the advantages offered by the SSA for as long as they were doing
business at Barefoot. Barbara Zimonja, co-owner and president of Premier
Resorts International, testified she understood the SSA would be in effect as
long as Premier was in business at Barefoot. Zimonja also stated Barefoot was
resistant to allowing Premier to have control of the tee time sheets, but
eventually Barefoot agreed to the SSA.
In an e-mail, Thomas Trefor, an attorney acting as general counsel
for Barefoot at the time the SSA was executed, acknowledged the payoff of the
loan did not affect the status of the SSA. He further testified as follows:
Q. Did you have any understanding as to how long the parties
intended --- Whether they were contractual obligations or not --- how long
these items mentioned in the Shared Services Agreement were to be enforced?
A. My understanding was the intention here was that it be in
perpetuity. Ill point out, however, that the reason that Barefoot --- or
actually Larry Young and Danny Young were willing to agree to this provision,
if it were contractually binding on them, was that they were really obligated
to do it to Bank of America and, if they had engaged in this business at
Barefoot, theyd be in default of the seventy-five million dollar loan.
Q. When you say, in perpetuity, do you mean, in
perpetuity, or do you mean, perpetuity, so long as Barefoot is in business at
the beach.
. . .
A. The way that its drafted, it would appear to be a claim
in true perpetuity. In practice, if Barefoot is no longer in business, it
becomes unenforceable.
Larry Young, one of the principal owners of Barefoot, admitted
the SSA was intended to help ensure the availability of golf tee times for
Premier clients. It logically follows Premier intended to accomplish this goal
by having control of the tee time sheets as set forth in Paragraph 3(c) of the
SSA for as long as they were doing business at Barefoot.
Larry Young and Danny Young, another principal owner in Barefoot,
testified the SSA was to be re-evaluated periodically to see if it continued to
be mutually beneficial to both parties. However, their testimony indicated
adjustments to the SSA were contemplated primarily with regard to the release
dates for the blocked tee times.[4] While Barefoot had little negotiating power in the agreement
considering the need for the loan extension, they ultimately, and perhaps
reluctantly, agreed to give control of the tee sheets to Premier. The
surrounding circumstances and the testimony in the record support the masters
finding that the agreement was to last so long as Premier was doing business
at Barefoot.
II. Barefoots
Breach of the SSA
Next, Barefoot
contends the master erred in finding it breached the SSA. We disagree.
Barefoots
argument on lack of breach goes hand in hand with its arguments regarding the
validity and duration of the SSA. Barefoot does not deny it took control of
the tee time sheets. Barefoot simply contends this action provided notice to
Premier that Barefoot intended to terminate the SSA. See Carolina
Cable Network v. Alert Cable TV, Inc., 316 S.C. 98, 102, 447 S.E.2d 199,
201 (1994) (holding when no intent can be gleaned from the circumstances
surrounding a contract, the court will find the contract to be terminable by
either party given reasonable notice). However, as previously discussed, we
find the master did not err in determining the SSA was to be in place so long
as Premier was doing business at Barefoot. Consequently, the SSA was not
terminable at will by either party, and Barefoots actions constituted a breach
of the agreement.
III. Grant of
Injunctive Relief
Barefoot also
appeals the masters issuance of a temporary injunction. The injunctive order allowed
Barefoot to retain control of the tee time sheets. It also prevented Premier
from booking any tee times outside of its blocked tee times until Premier had
booked at least eighty-five percent of its blocked tee times. Finally, the
order required Barefoot to leave the required tee times blocked until sixty
days prior at which time the time could be released.
Upon
the issuance of the masters final order, the temporary injunction expired
rendering this issue moot. Therefore, we decline to address it. See Curtis
v. State, 345 S.C. 557, 568, 549 S.E.2d 591, 597 (2001) (holding when a is moot).
IV. Damages
Next, Barefoot
contends the trial court erred in awarding Premier $161,369 in damages when
that award was not supported by the evidence. We disagree.
Barefoot appears
to argue because Premier was paid the four percent commission on all tee times
booked during the breach, Premier suffered no damages. However, a plaintiff is
allowed to offer evidence of lost profits so long as the circumstances indicate
lost profits would have been within the contemplations of the parties at the
time of the contract. Drews Co. v. Ledwith-Wolfe Assocs., 296 S.C. 207,
213, 371 S.E.2d 532, 535 (1988). In this case, all the parties understood the
control of the tee sheets would have substantial bearing on the success of
Premier at Barefoot. The parties would have also contemplated loss of control
of the tee sheets would reduce the number of bookings by Premier. The lost
profits need not be reduced to a mathematical certainty to be recoverable. Minter
v. GOCT, Inc., 322 S.C. 525, 528, 473 S.E.2d 67, 70 (Ct. App. 1996). However, the
damages cannot be left to conjecture, guess, or speculation. Id.
Here, Premiers
expert, Robert Mark Woodworth, testified he compared booking trends for Premier
both pre-breach and post-breach. He then compared those figures with Premier
bookings made during the breach when Barefoot had control of the tee time
sheets. Woodworth testified he then compared Premiers performance during the
breach against other similar businesses in the area. Using all of that data,
he arrived at the conclusion Premier lost package golf commission income in the
amount of $79,970 and non-package golf commission in the amount of $89,399. Woodworths
testimony established Premiers lost profits to a reasonable degree of
certainty providing evidence to support the masters award.
V. Retention
of Jurisdiction
Finally,
Barefoot argues the master erred in retaining jurisdiction for the purpose of
compliance with this Order and with the provisions of the Shared Services
Agreement, and for determining such issues as may arise thereunder. This
issue was not raised to the trial court in its motion to alter or amend the
judgment. Therefore this issue is not preserved for our review. See State v. Dunbar, 356
S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (holding
issues not raised and ruled upon in the trial court will not
be considered on appeal).
For all of the
foregoing reasons, the decision of the trial court is
AFFIRMED.
SHORT
and KONDUROS, J.J., and CURETON, A.J., concur.