Miller v. Dillon ( 2020 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Peter Miller, Mary Alice Miller, Mary Alice Miller, as
Trustee of Mary Alice Miller Living Trust, Miller Group
Properties, LLC, and C-Miller Properties, LLC,
Plaintiffs,
Of whom C-Miller Properties, LLC, is the Appellant.
v.
Marilyn L. Dillon and JLJ, LLC, Respondents,
and
Marilyn L. Dillon, Third-Party Plaintiff, Respondent,
v.
PMC, LLC, Third-Party Defendant.
Appellate Case No. 2018-000084
Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity
Opinion No. 5777
Submitted June 1, 2020 – Filed October 21, 2020
AFFIRMED
Beth B. Richardson and Jasmine Denise Smith, both of
Robinson Gray Stepp & Laffitte, LLC, of Columbia, for
Appellant.
Carmelo Barone Sammataro and Ian Douglas McVey,
both of Turner Padget Graham & Laney, PA, of
Columbia, for Respondents.
KONDUROS, J.: This appeal arises from a declaratory judgment action that
resulted in a mediated settlement agreement between family members to resolve a
dispute about the amount of debt on a loan. C-Miller Properties, LLC contends the
master erred in denying its motion to enforce the settlement agreement. We affirm.
FACTS/PROCEDURAL HISTORY
Peter Miller and Mary Alice Miller (Parents) have three daughters, Cynthia Miller,
Petrease Clarkson, and Marilyn Dillon. Cynthia Miller is the sole owner of both
C-Miller Properties, LLC and CRM Agency, LLC. Petrease Clarkson is the sole
owner of PMC, LLC. Marilyn Dillon and her husband, Joe Dillon, together own
JLJ, LLC.
Parents originally owned real property in the Hollywood/Ravenel area of
Charleston County. When Parents faced financial challenges in 2006, daughter
Marilyn, a resident of Maryland, loaned $360,000 to Parents, memorialized in a
promissory note dated June 1, 2006. The note indicated Marilyn was the lender,
and the borrowers were "Peter Miller, Mary Alice Miller, Mary Alice Miller as
Trustee of Mary Alice Miller Living Trust, and Miller Group Properties, LLC."
The terms of the note mandated the principal and interest were due to Marilyn
three years later, on May 31, 2009. The borrowers did not meet this obligation.
Over time the family members entered into additional agreements. The Record
indicates, on February 5, 2008, Miller Group Properties and C-Miller Properties
LLC, executed a mortgage securing the 2006 note with Marilyn as the mortgagee.
In 2012, Mary Alice Miller executed, on behalf of Miller Group Properties, a
modified promissory note in the amount of $434,059 and a modified mortgage
agreement. A warranty deed was also executed in 2012 in which Miller Group
Properties transferred its remaining fifty percent interest in the property as follows:
forty percent to JLJ, LLC—Marilyn and Joe Dillon's company—and ten percent to
PMC, LLC—Petrease's company.
Ultimately, a dispute arose as to the amount of debt still owed to Marilyn. The
family members disagreed whether certain conveyances of property were partial
payments on the outstanding loan and disagreed as to the balance due on the loan.
On June 15, 2015, Parents, Miller Group Properties, and C-Miller Properties
(collectively, Plaintiffs) brought a declaratory judgment action against Marilyn and
JLJ, LLC (collectively, Defendants), alleging certain conveyances Plaintiffs made
were partial satisfactions of the loan and should be credited to Plaintiffs, and
seeking a determination of the remaining balance by the court.
Defendants answered, counterclaimed and cross-claimed against Plaintiffs, and
made a third-party complaint against Petrease, asserting the total debt owed to
Marilyn, secured by note and mortgage, for principal, interest, and late fees was
$543,958.05.
The parties then entered into mediation, which resulted in a consensual settlement.
The settlement agreement and subsequent order consisted of eighteen detailed
terms, beginning with the following mandate:
Within one hundred and eighty (180) days of the date of
the filing of this Consent Order described below,
[Plaintiffs] must provide [Defendants] with one of the
following:
a. A ratified contract to sell the property . . . for Eight
Hundred Fifty Thousand [dollars] ($850,000.00) or
higher; or
b. An unqualified loan commitment letter from a
reputable lender licensed by the state or federal
government for a loan on commercially reasonable
terms in an amount sufficient to pay the debt [owed]
[to Marilyn and JLJ] . . . .
The settlement agreement expressly stated that if Plaintiffs failed to provide one of
these two options to Marilyn by the deadline, Plaintiffs would be in default.
"Failure to obtain a ratified contract or a loan commitment within one hundred
eighty (180) days of the date of entry of this consent order shall be considered a
default hereunder." Furthermore, the settlement agreement established Marilyn
could record a deed to the property in lieu of foreclosure if Plaintiffs defaulted.
"Said Deed in Lieu of Foreclosure will be held in trust by counsel for
Defendants/Third-Party Plaintiff and will not be recorded unless Plaintiffs breach
the terms hereof."
The agreement and subsequent order further detailed additional terms, including
1. specifying the ratified contract or loan commitment letter must be closed within
270 days from the date of the settlement agreement, 2. designating Reid Davis as
the listing agent, 3. directing Plaintiffs to manage the property and to pay the
expenses, property taxes, and insurance on the property until the sale or refinance
closed, 4. and requiring Petrease, Marilyn, and JLJ, LLC to contribute specified
funds to assist Plaintiffs in paying for the expenses, taxes, and insurance on the
property.
All parties acknowledged Saturday, March 11, 2017, was the deadline to provide
either the ratified contract or an unqualified loan commitment letter. On
Wednesday, March 8, 2017, three days before the deadline, Cynthia sent a
document entitled Real Estate Purchase Agreement to Marilyn offering to purchase
the property for $850,000. However, Cynthia's signatures, as signatory for the
proposed buyer, CRM Agency, LLC, and as one of the three sellers, C-Miller
Properties, LLC, were the only signatures on the document. The signature lines for
the two other sellers listed on the document, JLJ, LLC—Marilyn and Joe—and
PMC, LLC—Petrease—were blank, as was a blank for "Seller's Spouse." The
offer was not made with the involvement of the designated real estate agent and
was contingent upon Cynthia obtaining financing "on or before June 2, 2017."
On Friday, March 10, 2017, via their counsel's correspondence, JLJ, LLC rejected
Cynthia's offer, questioning Cynthia's financial ability to purchase the property,
contending the property insurance had lapsed and the 2016 property taxes had not
been paid, noting the settlement agreement required the use of Davis as the listing
broker, and pointing out the offer did not include earnest money. The
correspondence concluded: "That is simply unfair and a clear attempt to
circumvent the terms and the intent of the Settlement Order."
The Record contains another signature page with Cynthia's signature as signatory
authority for CRM Agency, LLC, as the buyer, and Cynthia, Petrease, and Parents,
all signing as sellers on March 13, 2017. The signature lines for Marilyn, as one of
the sellers, and Joe, as seller's spouse, were blank. Marilyn ultimately recorded the
deed in lieu of foreclosure and then conveyed the property to another LLC.
On April 28, 2017, Plaintiffs filed a motion to enforce the settlement agreement,
asking the master to require Marilyn and JLJ, LLC to "comply with the [settlement
agreement] by executing the Real Estate Purchase Agreement . . . so that the Real
Estate Purchase Agreement may proceed to closing." The master denied the
motion, finding Cynthia's offer did not comply with the settlement agreement,
Plaintiffs were not entitled to enforce the agreement because they did not perform
their required obligations pursuant to the agreement, and enforcing the agreement
would prejudice Defendants.
Plaintiffs thereafter moved to amend the order under Rule 52(b), SCRCP, and to
alter or amend the judgment under Rule 59(e), SCRCP, asserting the master erred
in its findings. A reconsideration hearing was held on December 18, 2017, and the
master denied the motion. This appeal followed.1
STANDARD OF REVIEW
"Our scope of review for a case heard by a Master-in-Equity who enters a final
judgment is the same as that for review of a case heard by a circuit court without a
jury." Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543
(1989).
"Declaratory judgment actions are neither legal nor equitable and, therefore, the
standard of review depends on the nature of the underlying issues." Judy v. Martin,
381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009). "Further, '[w]hen a suit involves
both legal and equitable issues, each cause of action retains its own identity as
legal or equitable for purposes of the applicable standard of review on appeal.'"
Lollis v. Dutton, 421 S.C. 467, 477, 807 S.E.2d 723, 728 (Ct. App. 2017) (quoting
Holly Woods Ass'n of Residence Owners v. Hiller, 392 S.C. 172, 180, 708 S.E.2d
787, 792 (Ct. App. 2011)).
"In South Carolina jurisprudence, settlement agreements are viewed as contracts."
Byrd v. Livingston, 398 S.C. 237, 241, 727 S.E.2d 620, 621 (Ct. App. 2012)
(quoting Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802
(Ct. App. 2009)). "An action to construe a contract is an action at law. In an
action at law, tried without a jury, the trial court's findings of fact will not be
disturbed unless found to be without evidence which reasonably supports the
court's findings." McGill v. Moore, 381 S.C. 179, 185, 672 S.E.2d 571, 574 (2009)
(citations omitted).
1
We refer to C-Miller Properties, LLC, the appellant, and to CRM Agency, LLC,
the buyer in Cynthia's offer, as "Cynthia" herein, at times, for ease. We refer to
Marilyn L. Dillon and JLJ, LLC, the respondents, as "Marilyn" herein, at times, for
ease.
"This [c]ourt reviews all questions of law de novo." Lollis, 421 S.C. at 477, 807
S.E.2d at 728 (quoting Fesmire v. Digh, 385 S.C. 296, 302, 683 S.E.2d 803, 807
(Ct. App. 2009)).
"An action for specific performance is one in equity." Campbell v. Carr, 361 S.C.
258, 262, 603 S.E.2d 625, 627 (Ct. App. 2004).
"On appeal from an action in equity, [the appellate court]
may find facts in accordance with its view of the
preponderance of the evidence." Walker v. Brooks, 414
S.C. 343, 347, 778 S.E.2d 477, 479 (2015). "However,
this broad scope of review does not require this court to
disregard the findings at trial or ignore the fact that the
[circuit court] was in a better position to assess the
credibility of the witnesses." Laughon v. O'Braitis, 360
S.C. 520, 524-25, 602 S.E.2d 108, 110 (Ct. App. 2004).
Further, "this broad scope does not relieve the appellant
of [the] burden to show that the trial court erred in its
findings." Ballard v. Roberson, 399 S.C. 588, 593, 733
S.E.2d 107, 109 (2012).
Lollis, at 477-78, 807 S.E.2d at 728.
LAW/ANALYSIS
I. Preservation
As an initial matter, Marilyn argues Cynthia makes arguments on appeal that are
beyond the scope of the issues raised to the master, including asserting the master
erred in considering affidavits admitted into evidence and in disfavoring undoing
the filing of a deed in lieu of foreclosure.
It is axiomatic that an issue cannot be raised for the first
time on appeal, but must have been raised to and ruled
upon by the trial judge to be preserved for appellate
review. Moreover, an objection must be sufficiently
specific to inform the trial court of the point being urged
by the objector.
Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (citation
omitted).
"Error preservation requirements are intended 'to enable the lower court to rule
properly after it has considered all relevant facts, law, and arguments.'" Staubes v.
City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (quoting I'On,
LLC v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)).
"A party need not use the exact name of a legal doctrine in order to preserve it, but
it must be clear that the argument has been presented on that ground. A party may
not argue one ground at trial and an alternate ground on appeal." State v. Dunbar,
356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (citations omitted).
"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." State v. Howard, 384
S.C. 212, 217, 682 S.E.2d 42, 45 (Ct. App. 2009).
We find Cynthia's overarching issue on appeal, whether the master erred in
denying her motion to enforce the settlement agreement, is preserved for appeal,
and the majority of her arguments were raised to the master and addressed by the
master. However, we find the record contains no evidence the master's use of the
affidavits were objected to at the hearing. Rather, Cynthia raised this argument for
the first time in the motion for reconsideration. Because this is an argument not
specifically made at the trial, to the extent it is used to support her argument the
master erred, we find this particular issue is not preserved on appeal.
We also find several arguments Cynthia raises on appeal abandoned because they
are arguments made without reference to jurisprudence. Namely, Cynthia fails to
cite precedent for her argument the master erred in denying her motion because the
closing could have occurred by the second deadline in the settlement agreement.
Nor does Cynthia provide precedent for two of her three arguments contending the
master erred in "balancing the equities in favor of Marilyn." While Cynthia
contends in her brief the master considered certain facts and not others, she does
not provide this court with legal authority on which she relies. To the extent
unsubstantiated arguments are used, we find these arguments are abandoned on
appeal. We turn to the merits of the appeal.
II. Enforcement of the Settlement Agreement
Cynthia contends the master erred in denying Plaintiffs' motion to enforce the
settlement agreement, asserting three issues that sound in law. First, Cynthia
contends the master erred in finding her offer was not a ratified contract because
the only missing signature was that of Marilyn. Second, she contends the master
erred in finding her offer failed to comply with the settlement agreement because it
did not include earnest money. Finally, Cynthia argues the master erred in finding
the offer violated the settlement agreement, asserting her offer could close by the
second deadline set forth in the agreement. We disagree.
Cynthia provided a document to Marilyn before the deadline entitled Real Estate
Purchase Agreement, establishing in the opening paragraph the agreement was
between sellers, "C-Miller Properties[,] LLC, JLJ[,] LLC, [and] PMC[,]LLC," and
[buyer], "CRM Agency[,] LLC." Signature lines for two of the three sellers were
not executed and left blank in her offer. Cynthia expressly listed Petrease (PMC,
LLC) and JLJ, LLC as owners; however, they did not sign the offer.
"The necessary elements of a contract are an offer, acceptance, and valuable
consideration." S. Glass & Plastics, Co. v. Kemper, 399 S.C. 483, 491, 732 S.E.2d
205, 209 (Ct. App. 2012) (quoting Sauner v. Pub. Serv. Auth. of S.C., 354 S.C.
397, 406, 581 S.E.2d 161, 166 (2003)).
Black's Law Dictionary defines "ratification" as:
1. Adoption or enactment, esp[ecially] where the act is
the last in a series of necessary steps or consents. . . . 2.
Confirmation and acceptance of a previous act, thereby
making the act valid from the moment it was done . . . .
3. Contracts. A person's binding adoption of an act
already completed but either not done in a way that
originally produced a legal obligation or done by a third
party having at the time no authority to act as the person's
agent . . . .
Black's Law Dictionary (11th ed. 2019).
"Where an agreement is clear on its face and
unambiguous, the court's only function is to interpret its
lawful meaning and the intent of the parties as found
within the agreement." Where the contract language is
plain and capable of legal construction, that language
alone determines the instrument's force and effect.
Stevens & Wilkinson of S. C., Inc. v. City of Columbia, 409 S.C. 568, 577, 762
S.E.2d 696, 700 (2014) (citation omitted) (quoting Miles v. Miles, 393 S.C. 111,
117, 711 S.E.2d 880, 883 (2011)).
In McGill v. Moore, 381 S.C. 179, 672 S.E.2d 571 (2009), our supreme court
provided guidance in a determination of whether an offer to purchase property
constituted a contract. In that case the appellant asserted because eight of the nine
owners signed the purchase agreement, the appellant had substantially complied
with the agreement. Id. at 187, 672 S.E.2d at 575. Our supreme court stated:
We hold that the master correctly found that the contracts
contained a condition precedent that all owners sign the
contract agreeing to sell their interests before any
contract could be enforced. Reading all of the provisions
as a whole, we find that the contract assumes that all
owners would sell their interests in the property and that
Appellant would subsequently be the sole owner of the
property. . . .
....
Had Appellant intended to purchase the interests of an
individual owner without regard to the other owners'
interest, he could have easily drafted a contract to reflect
this intent. In our view, to construe the contract
according to Appellant's interpretation would not be
faithful to the entire document and would not reflect the
parties' intentions. Accordingly, we hold that the
contract contained a condition precedent which was not
satisfied.
Id. at 186, 672 S.E.2d at 574-75 (citation omitted).
The opinion further explains:
If a contract contains a condition precedent, that
condition must either occur or it must be excused before
a party's duty to perform arises. In this case, before the
closing could occur, the contract required all of the
owners to sign the contract. This condition has not been
met and has not been excused. Therefore, we hold that
Appellant may not circumvent the contract[']s condition
precedent by arguing substantial compliance.
Id. at 187-88, 672 S.E.2d at 575.
We affirm the decision of the master that Cynthia did not comply with the
settlement agreement. The offer she made was not the required ratified contract,
nor the loan commitment letter, by the deadline. We find Cynthia's representation
to the master during the hearing noteworthy as it acknowledges a discrepancy
between what she was required to provide under the agreement and what she did
provide. Her counsel stated:
Anticipating a little bit of what [counsel for Marilyn] is
going to say, it took another day to get the signature of
[Petrease] on the contract that [Cynthia] submitted. It
was a Saturday. The deadline was a Saturday. I told her,
["w]e need to get another signature.["] It didn't come
until Monday. I know he was going to make an issue of
that. Your Honor, in substance they lived up to the term
of the agreement. We simply want an opportunity to try
to purchase the property. If it doesn't work then we're out
of here and the Dillons have it, and that's the end of the
case.
The offer made was not compliant with the mandate of the settlement agreement.
The agreement required a ratified contract or a loan commitment letter, by a date
certain, not an "opportunity to try to purchase."
As this court noted in Galloway v. Regis Corp., memorializing the terms of a
settlement agreement is important so the parties have clarity. 325 S.C. 541, 546,
481 S.E.2d 714, 716-17 (Ct. App. 1997) ("We hope our decision here underscores
the importance of putting a settlement agreement on the record or immediately
reducing the agreement to writing, and including in the writing all material terms
and conditions of the agreement."). The parties here followed this directive and
filed the consent settlement agreement as an order of the court. Neither the parties,
the master, nor this court may now disregard that order and its terms. We find the
master correctly found the offer Cynthia proposed did not comply with the
settlement agreement and denied the motion.
We next address the argument Cynthia raises that the master erred in finding her
offer to purchase did not comply with the settlement agreement in part because it
failed to provide consideration in the form of earnest money. The master's ruling
specifically stated: "The [c]ourt also finds the Real Estate Purchase Agreement is
not supported by valuable consideration which is a necessary element of contract
formation. . . . As a result, the Real Estate Purchase Agreement lacks
consideration and does not comply with the terms of the Settlement Order."
While consideration is an element of contract formation, we do not find a
requirement in the settlement agreement mandating earnest money must serve as
that consideration. We note earnest money likely would have been a part of a
ratified contract to purchase the property had the listing broker been used as
required, but the settlement agreement did not address earnest money. Therefore,
to the extent the master reasoned the failure to provide earnest money to Marilyn in
the offer factored into the ruling Cynthia failed to comply with the settlement
agreement as a matter of law, we do not believe the language of the agreement
supports that reasoning. However, because the master's finding Cynthia's failure to
provide a ratified contract by the deadline supports denial of her motion, any error
regarding the issue of earnest money is harmless. In the words of Chief Judge
Alex Sanders, "whatever doesn't make any difference, doesn't matter." McCall v.
Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987).
We further find unpersuasive Cynthia's argument she complied with the settlement
agreement because she contends the closing on her offer to purchase could occur
by the second deadline set forth in the settlement agreement. We note the
settlement agreement established two deadlines for action, but the second date
comes into play only if the first date is met. The agreement mandated Plaintiffs
must provide a ratified contract to sell the property within 180 days from the date
of the filing of the order. The order subsequently required: "[i]f Plaintiffs obtain a
ratified contract," the sale "must be closed" within 270 days "of the entry of this
consent order." We find the master did not err in denying Cynthia's motion to
enforce the settlement agreement because Cynthia's offer was not a ratified
contract or a loan commitment letter, provided within 180 days, regardless of her
contention she could close on her offer by the second deadline.
Cynthia's offer failed to comply with the terms of the settlement agreement. We
are cognizant of the fact another family may have chosen to negotiate further after
receiving the offer, but the settlement agreement expressly validates Marilyn's
decision to file the deed in lieu of foreclosure. Accordingly, we affirm the decision
of the master.
III. Specific Performance
The appropriate review called for in this appeal is based in law. Because
"settlement agreements are viewed as contracts," Byrd, 398 S.C. at 241, 727 S.E.2d
at 621 (quoting Pee Dee Stores, Inc., v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799,
802 (Ct. Ap. 2009)), and because "[a]n action to construe a contract is an action at
law," we affirm the decision of the master in finding the purchase offer did not
comply with the requirements of the settlement agreement, and find evidence
"reasonably supports the [master's] findings," McGill, 381 S.C. at 185, 672 S.E.2d
at 574. However, we also find no error in the master's findings that sound in
equity, to wit: Plaintiffs could not compel enforcement of the settlement agreement
because of Plaintiffs' own non-performance under the agreement, and enforcement
of the settlement agreement would prejudice Defendants inequitably.
We recognize the motion made by Plaintiffs' seeking enforcement of the agreement
could be considered, in essence, a motion to seek specific performance, requiring
Marilyn to sell the property to Cynthia based upon the offer she made. In Standard
Federal Sav. & Loan Ass'n v. Mungo, 306 S.C. 22, 410 S.E.2d 18 (Ct. App. 1991),
this court affirmed the decision of the master to consider that a motion for a rule to
show cause was in substance a petition to amend the judgment. This court found
the rules of civil procedure work "to secure the just, speedy, and inexpensive
determination of every action," and "[t]he court at every stage of the proceeding
must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties." 306 S.C. at 25, 26, 410 S.E.2d at 20 (quoting
Rule 7(b), SCRCP). This court found the master did not err in considering the
motion for a rule to show cause as a motion to amend the judgment.
Cynthia argues on appeal the master erred in finding she was not entitled to
specific performance because she satisfied all the elements for a specific
performance award, and she contends the master erred in "balancing the equities"
in favor of Marilyn. We disagree.
Our supreme court has established defined requirements a court must find to order
a party to specifically perform a contract.
In order to compel specific performance, a court of
equity must find: (1) there is clear evidence of a valid
agreement; (2) the agreement had been partly carried into
execution on one side with the approbation of the other;
and (3) the party who comes to compel performance has
performed his or her part, or has been and remains able
and willing to perform his or her part of the contract.
Ingram v. Kasey's Assocs., 340 S.C. 98, 106, 531 S.E.2d 287, 291 (2000).
"In order to compel specific performance, a court of equity must find . . . that the
party who comes to compel performance has performed on his part, or has been
and remains able and willing to perform his part of the contract." Shirey v. Bishop,
Op. No. 5718 (S.C. Ct. App. refiled Sept. 16, 2020) (Shearouse Adv. Sh. No. 36 at
20, 24) (quoting Gibson v. Hrysikos, 293 S.C. 8, 13-14, 358 S.E.2d 173, 176 (Ct.
App. 1987)). "Equity will not decree specific performance unless the contract is
fair, just, and equitable." Campbell v. Carr, 361 S.C. 258, 263, 603 S.E.2d 625,
627 (Ct. App. 2004). "The discretion to grant or refuse specific performance is a
judicial discretion to be exercised in accordance with special rules of equity and
with regard to the facts and circumstances of each case." Id. (quoting Guignard v.
Atkins, 282 S.C. 61, 64, 317 S.E.2d 137, 140 (Ct. App. 1984)).
Our jurisprudence also supports the discretion of the court to consider all the facts
and circumstances before it. "The rule is well settled that the granting of specific
performance is not a matter of absolute right, but rests in the sound or judicial
discretion of the [c]ourt, guided by established principles, and exercised on a
consideration of all the circumstances of each particular case." Bishop v. Tolbert,
249 S.C. 289, 298, 153 S.E.2d 912, 917 (1967). In Bishop, our supreme court
included reasoning from an 1871 opinion of the court:
Among the established principles by which the court is
guided and governed in the exercise of the sound
discretion is that laid down in the early case of Cureton v.
Gilmore, 3 S.C. 46:
[]* * * He, therefore, who demands the execution
of an agreement, ought to show that there has
been no default in him in performing all that was
to be done on his part; for, if either he will not, or
through his own negligence cannot perform the
whole on his side, he has no title in equity to the
performance of the other party, since such
performance could not be mutual. And, upon this
reasoning, it is that where a man has trifled or
shown a backwardness in performing his part of
the contract, equity will not decree a specific
performance in his favor, * * *.[]
Bishop, 249 S.C. at 298, 153 S.E.2d at 917 (quoting Cureton v. Gilmore, 3 S.C. 46,
51 (1871)).
Cynthia did not perform her required obligations under the agreement, including
using Davis as the listing broker and paying the expenses due on the property, to
which her family members contributed. The Record indicates Cynthia managed
the property for Parents and had access to needed information regarding the
property's leases and tenants, an important element of the sale. However, the
affidavits of Joe Dillon and Reid Davis indicate Cynthia did not act in a manner
consistent with the requirement that Davis serve as listing agent. While Cynthia
asserts she was not required to cooperate with Davis and did not prevent him from
listing the property, he was not part of the offer she made. Rather, she made the
offer as sole owner of her own company. Accordingly, we find no error in the
master's ruling. As noted in Ingram, "[w]e rely on the equity maxim: 'He who
seeks equity must do equity.'" 340 S.C. at 107, 531 S.E.2d at 291 (quoting Norton
v. Matthews, 249 S.C. 71, 80, 152 S.E.2d 680, 684 (1967)).
Cynthia cites Clardy v. Bodolosky, 383 S.C. 418, 679 S.E.2d 527 (Ct. App. 2009),
in support of her argument she sufficiently complied with the settlement
agreement, as did the buyers in that case, and thus, she should be entitled to require
Marilyn to specifically perform the agreement. We find the buyers' actions in
Clardy distinguishable from the facts here. In Clardy, the seller argued on appeal
the trial court erred in finding the buyers entitled to specific performance because
the buyers wrote a check to the seller's attorney's trust account and not the seller,
even though there was no plan to put the funds in escrow. Id. at 426, 679 S.E.2d at
531. This court, however, affirmed the specific performance award to the buyers.
Id. at 428, 679 S.E.2d at 532. The court provided:
We find the [buyers] satisfied the elements of the Ingram
test: there is evidence of a valid agreement, the [buyers]
performed their part of the contract with [seller's]
consent, and the [buyers] remain able and willing to buy
the real estate. Additionally, the [buyers] substantially
performed their part of the contract and gave [seller]
substantially all that he bargained for even if we assume
the contract required the [buyers] write the earnest
money check directly to [seller] rather than to [the
attorney's] trust account. Furthermore, the express
provisions of the contract do not make strict compliance
essential; therefore, substantial compliance is sufficient.
Id. at 427, 679 S.E2d at 531. Here, Cynthia likens her offer to purchase to the
performance of the buyers in Clardy. We disagree. The buyers in Clardy fully
performed and met their obligations under the agreement, with the only variance
being they addressed the payment check to counsel for the seller, instead of the
seller. Cynthia provided neither document the settlement agreement expressly
required by the deadline; she failed to perform other obligations she was
specifically required to perform under the settlement agreement; and she in essence
acted as the broker, contrary to the agreement. Accordingly, we agree with the
decision of the master to deny Cynthia's motion.
Finally, Cynthia asserts the master erred in balancing the equities between
Plaintiffs and Marilyn. We find two of Cynthia's arguments abandoned. "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." Howard, 384 S.C. at 217, 682
S.E.2d at 45. To the extent she preserved her argument the master erred in finding
the equities favored Marilyn filing the deed in lieu of foreclosure, we find no error
in the master's decision denying Cynthia's motion. The master's order included
evidence of the inequity of the outstanding loan, and noted:
[T]he loan which was the subject of this matter matured
in May 1, 2013 . . . It originated in June of 2006.
Therefore, [Marilyn] has been without payment of her
funds since at least May 1, 2013[,] and, according to the
arguments at the hearing, long before that time.
[Marilyn] bargained for foreclosure of the property if no
payment was made. She then agreed to accept a Deed-in-
Lieu of Foreclosure after giving the Plaintiffs adequate
time to sell the property to a third party under the
Settlement Order. No sale materialized despite her
efforts, and[] she is entitled to the remedy provided: the
recordation of the Deed-in-Lieu and title to the Property.
Accordingly, we find no error in the master's ruling.
CONCLUSION
We find the master did not err in denying the motion to enforce the settlement
agreement. Accordingly, the master's decision is
AFFIRMED.2
WILLIAMS and HILL, JJ., concur.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.