Denton v. Denmark Technical College ( 2013 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Dr. Robert W. Denton and Dr. John May, D/B/A
Edusystems, a general partnership, Appellants,
v.
Denmark Technical College, Respondent,
v.
Dr. John K. Waddell, Third-Party Defendant.
Appellate Case No. 2012-207846
Appeal From Bamberg County
Doyet A. Early, III, Circuit Court Judge
Unpublished Opinion No. 2013-UP-485
Heard September 11, 2013 – Filed December 23, 2013
AFFIRMED
Timothy G. Quinn, of Quinn & Mason, LLC, of
Columbia, for Appellants.
David T. Duff and Joseph Daniel Dickey, Jr., both of
Duff, White & Turner, LLC, and Thornwell F. Sowell,
III and Robert E. Tyson, Jr., both of Sowell Gray Stepp
& Laffitte, LLC, all of Columbia, for Respondent.
PER CURIAM: Dr. Robert W. Denton and Dr. John May, doing business as
Edusystems, appeal the circuit court's grant of summary judgment to Denmark
Technical College (the College) in their action against the College for terminating
their consulting contract and refusing to pay the remainder of the contract. The
circuit court found the contract was not a valid sole source procurement and was
not approved by the Budget and Control Board as was required because it was over
$50,000. We affirm.
1. We affirm the circuit court's order granting summary judgment in favor of
the College. Denton and May claim the Consolidated Procurement Code divested
the circuit court of jurisdiction over contract disputes involving a state entity.
However, we find the circuit court had subject matter jurisdiction over the contract
dispute. See S.C. Code Ann. § 15-77-50 (2005) (stating the "circuit courts of this
State are hereby vested with jurisdiction to hear and determine all questions,
actions and controversies"); Skinner v. Westinghouse Elec. Corp., 380 S.C. 91, 93,
668 S.E.2d 795, 796 (2008) (defining subject matter jurisdiction as "the power to
hear and determine cases of the general class to which the proceedings in question
belong" (internal quotation marks omitted)). Moreover, Denton and May chose to
file this case in circuit court. Their argument on appeal that the forum they chose
does not have jurisdiction to hear the case is not only incorrect, but if accepted
would necessarily result in the dismissal of the entire lawsuit. This case is
distinguishable from Unisys Corp. v. South Carolina Budget & Control Board
Division of General Services Information Technology Management Office, 346
S.C. 158, 551 S.E.2d 263 (2001). In Unisys, the State invoked the remedy
provided in the Consolidated Procurement Code, 346 S.C. at 164, 551 S.E.2d at
267, and because of that the supreme court held the circuit court did not have
jurisdiction to hear the same dispute over the same contract. Id. at 176-77, 551
S.E.2d at 273. Here, neither party invoked the procedures in the Consolidated
Procurement Code. Thus, Unisys does not control. Therefore, the circuit court had
the power to hear the case, and its jurisdiction was proper.
2. Additionally, Denton and May claim they should not have been required to
comply with the Consolidated Procurement Code. Instead, they argue the College,
as the governmental entity, is responsible for compliance with the Code. However,
we find Denton and May were obligated to meet the terms of the Consolidated
Procurement Code. See Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174,
177-78, 420 S.E.2d 843, 846 (1992) (providing that the Procurement Code "is
applicable to every expenditure of funds by the state acting through a
governmental body"); S.C. Code Ann. § 11-35-310 (2011) (defining a
governmental body to include state colleges, universities, and technical schools);
Ahrens v. State, 392 S.C. 340, 353, 709 S.E.2d 54, 60-61 (2011) (warning that "[a]
public officer derives his authority from statutory enactment, and all persons are in
law held to have notice of the extent of his powers, and therefore, as to matters not
really within the scope of his authority, they deal with the officer at their peril"
(internal quotation marks omitted)).
3. Furthermore, Denton and May claim on appeal there was a valid emergency
procurement under the Consolidated Procurement Code because the College was in
danger of missing its audit deadline. This is insufficient to justify the contract as
an emergency procurement. See S.C. Code Ann. § 11-35-1570 (2011) (declaring
emergency procurements are proper "only when there exists an immediate threat to
public health, welfare, critical economy and efficiency, or safety under emergency
conditions as defined in regulations promulgated by the board; and provided, that
such emergency procurements shall be made with as much competition as is
practicable under the circumstances"). Moreover, the issue is not properly
preserved for review by this court. See Pye v. Estate of Fox, 369 S.C. 555, 564,
633 S.E.2d 505, 510 (2006) (maintaining "[i]t is well settled that an issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the trial court to be preserved"); Bochette v. Bochette, 300 S.C. 109, 112, 386
S.E.2d 475, 477 (Ct. App. 1989) (stating "[a]n appellant may not use either oral
argument or the reply brief as a vehicle to argue issues not argued in the appellant's
brief").
4. Finally, summary judgment was properly granted in this case. See Sloan v.
Dep't of Transp., 379 S.C. 160, 167, 666 S.E.2d 236, 239 (2008) (stating summary
judgment is appropriate "when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law"). We agree with the
circuit court that a verdict for Denton and May was not reasonably possible under
the facts presented.
Accordingly, the circuit court order granting summary judgment in favor of the
College is
AFFIRMED.
FEW, C.J., and PIEPER and KONDUROS, JJ., concur.