Ray Thomas Petroleum v. David Reza Kaveh Petroleum ( 2012 )

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

Ray Thomas Petroleum, Inc., a North Carolina Corporation, Appellant,

v.

David Reza Kaveh Petroleum Co., a South Carolina corporation, Express Mart, Inc., a South Carolina cCorporation, Alliance Consulting Group, Inc., a South Carolina corporation, Petroleum Marketing Group, LLC, a South Carolina Corporation; Meca Petroleum, LLC, a South Carolina limited liability company; Respondents.

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Appeal From York County
Lee S. Alford, Circuit Court Judge

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Unpublished Opinion No. 2012-UP-019
Heard November 16, 2011 – Filed January 25, 2012

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AFFIRMED

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Douglas Gay, of Rock Hill, George Hamlin O'Kelley, III, of Mount Pleasant and William L. Taylor, of Alexandria, Virginia, for Appellant.

Brian Scott McCoy, of Rock Hill, for Respondents.

PER CURIAM:  Ray Thomas Petroleum Company, Inc, (RTP) contends the trial court erred in failing to pierce the corporate veil of Kaveh Petroleum Company (KPC) and the connected business ventures of David Kaveh.  On appeal, RTP argues the trial court erred in (1) failing to find Kaveh and his various business entities are one and the same under the alter ego theory, thereby justifying the piercing of the corporate veil; (2) failing to apply the trust fund doctrine; and (3) awarding Kaveh damages for the attachment placed on his personal property.  We affirm.

1.  KPC was formed as a statutory close corporation, and its primary purpose was to manage the business relationship between RTP and Kaveh's separate business venture, Express Mart, Inc.  RTP argues the trial court erred in failing to recognize Kaveh as the sole actor for KPC, Express Mart, and Petroleum Marketing Group, LLC.  We find the trial court properly applied the two-prong test in Sturkie v. Sifly and RTP failed to meet its burden of proof in asserting that KPC's corporate veil should be pierced.  See 280 S.C. 453, 457, 313 S.E.2d 316, 318-19 (Ct. App. 1984) (finding our courts should apply a two-prong test to determine whether a corporate veil should be pierced); Mid-South Mgmt. Co. v. Sherwood Dev. Corp., 374 S.C. 588, 597, 649 S.E.2d 135, 140 (Ct. App. 2007) ("The burden of proof is on the party asserting that the corporate veil should be pierced.").

2.  RTP asserts Kaveh, as a shareholder of Express Mart, owed a fiduciary duty to RTP under the trust fund doctrine.  We affirm the trial court's determination that the trust fund doctrine was not properly before it in RTP's post-trial brief because RTP did not plead the trust fund doctrine in the original complaint or amended complaint, did not make a motion to amend its complaint to include it, and the issue was not tried by either express or implied consent of the parties.  See Rule 15(a), SCRCP ("A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served . . . .  Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; . . . ."); Rule 15(b), SCRCP ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."); Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 334-35, 391 S.E.2d 868, 871 (Ct. App. 1990) ("Express consent may be demonstrated by a stipulation but implied consent depends on whether the parties recognized an issue not raised by the pleadings entered the case during the trial.").

3.  RTP abandoned the issue of damages arising from the attachment on Kaveh's property because it failed to cite any statute, rule, or legal authority for this issue in its brief.  An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory.  See Pack v. S.C. Dep't of Transp., 381 S.C. 526, 532, 673 S.E.2d 461, 464 (Ct. App. 2009) (holding appellant abandoned issue when she cited no legal authority to support her argument). 

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.