Crescent Homes SC, LLC v. CJN, LLC ( 2024 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Crescent Homes SC, LLC, Appellant,
v.
CJN, LLC, Respondent.
Appellate Case No. 2022-000897
Appeal From Greenville County
Charles B. Simmons, Jr., Master-in-Equity
Opinion No. 6093
Heard May 9, 2024 – Filed November 20, 2024
AFFIRMED
Ellis Reed-Hill Lesemann and Benjamin Houston Joyce,
both of Lesemann & Associates, LLC, of Charleston, for
Appellant.
John T. Crawford, Jr. and Francis James Warmoth, both
of Kenison Dudley & Crawford, LLC, of Greenville, for
Respondent.
KONDUROS, J.: Crescent Homes SC, LLC (Crescent) appeals the master-in-
equity's determination that a right of first refusal (ROFR) contained in a contract
between Crescent and CJN, LLC was unenforceable. Crescent asserts that because
no offer to purchase the property was pending at the time of the hearing, the master
erred in finding the matter presented a justiciable controversy. It further maintains
the master erred in finding the ROFR created an unreasonable restraint on the
alienation of an interest in land based on the master's finding the ROFR lacked
specific terms. Crescent also contends the master improperly refused to consider
evidence of the conduct of the parties. Finally, Crescent argues the master should
have addressed whether the ROFR violated the rule against perpetuities (RAP) and
if the master determined the ROFR violated the RAP, reformed the ROFR. We
affirm.
FACTS/PROCEDURAL HISTORY
CJN was an LLC that purchased, owned, and developed property, and Nicholas
Franchina, Charles Howard, and Jeff Howard were its three members. Crescent
was a homebuilding company owned by Edward Terry. 1 Terry's companies and
CJN have had multiple property dealings with each other. In 2017, the parties
discussed developing land CJN owned in Greenville County into a subdivision and
signed a Letter of Intent generally setting forth an intent for Crescent to buy sixty-
five lots from CJN in River Springs Subdivision, Phase 1 and Phase 2.
In October of 2018, the parties entered into an "Agreement for Purchase and Sale
of Developed Lots" (the Agreement). (capitalization omitted). The Agreement
provided CJN would develop thirty-two lots in Phase 1 and sell them to Crescent
as individual lots; Crescent would then build single-family homes on these lots and
sell them to homebuyers. The Agreement referenced a "Future Phase"2 on
property CJN owned that was adjacent to Phase 1. Paragraph 19 of the Agreement
provided the ROFR for the Phase 2 Property:
Right of First Refusal: At the Initial Closing, [CJN] will
grant to [Crescent] a right of first refusal with respect to
the lots cross-hatched and shown on Exhibit "A-2" as
"Future Phase" and any additional lots that may from
time to time may be annexed or otherwise included in the
Subdivision. A memorandum of such right of first
refusal in a form reasonabl[y] acceptable to the Parties
will be recorded in the public records of Greenville
County at the Initial Closing.
Apart from the ROFR and its reference to Exhibit A-2, which is labeled Future
Phase, the Agreement did not otherwise specifically mention the Future Phase or
1
Terry also owned a residential development company.
2
The Letter of Intent referred to a Phase 2, but the Agreement used the term Future
Phase. These terms refer to the same parcel of land (Phase 2 Property).
Phase 2. The parties later attempted to set the terms for the ROFR but could not
agree on multiple details. Attorneys for both sides sent proposals for the
memorandum "back and forth," but the parties never recorded a separate
memorandum setting the terms of the ROFR.
CJN did not start development of Phase 2 at the time the parties signed the Letter
of Intent or afterwards based on cost concerns.3
Crescent sent CJN a written notice dated September 5, 2019, asserting CJN had
breached and defaulted on the Agreement in several manners. Subsequently,
Crescent filed a complaint against CJN for breach of contract. Crescent asserted
CJN caused the Initial Closing to be delayed by not complying with the terms of
the Agreement—most significantly, by failing to maintain the lots free from trash
and debris. Crescent sought specific performance of the Agreement and other
remedies.
On June 26, 2020, Douglas Clark, who owned property neighboring the Phase 2
Property and whose family had once owned CJN's property, offered to purchase
the Phase 2 Property from CJN for $775,000 (Clark Offer). CJN entered into a
"Purchase and Sale Agreement" with Clark. (capitalization omitted). That
agreement included a provision acknowledging the ROFR: "1.5 Contingencies.
The obligations of [CJN] to sell the Property [are] contingent upon Crescent . . .
terminating any and all rights of first refusal for the Property pursuant to that
Agreement . . . ." (bolding and underlining omitted).
CJN provided a copy of the Clark Offer to Crescent, inquiring if Crescent wanted
to exercise the ROFR on the Phase 2 Property. According to Franchina, Crescent
responded by offering $700,000 to purchase the Phase 2 Property. Crescent then
filed a lis pendens on the Phase 2 Property. Crescent also notified CJN that even
though the ROFR was binding, Crescent was not required to exercise or waive the
ROFR at that time because the Initial Closing had not yet occurred. Thus,
Crescent asserted the ROFR had not been delivered and was not capable of being
validly exercised at that time. Clark withdrew his offer because he had been
attempting to buy the Phase 2 Property as a like-kind exchange and the closing
could not occur in the legally required amount of time due to the lis pendens.4
3
At the time of trial, the Phase 2 Property remained undeveloped.
4
Clark had previously sold property for a purchase of the Phase 2 Property to
qualify as a like-kind exchange. Like-kind exchanges are governed by I.R.C.
In August of 2020, the Initial Closing occurred and the parties continued thereafter
to go through the process of CJN preparing the lots and Crescent buying them5 in
Phase 1.6
On September 18, 2020, CJN filed a lawsuit against Crescent asserting causes of
action for declaratory judgment and abuse of legal process. CJN alleged in its
complaint the ROFR was invalid and Crescent had filed four lis pendens for the
ulterior purpose of preventing the sale of the Phase 2 Property to third parties.
CJN also asserted Crescent had continually failed to conduct the Initial Closing.
Additionally, on October 9, 2020, CJN answered Crescent's complaint, asserting
counterclaims of breach of contract and quantum meruit/unjust enrichment and
seeking remedies of specific performance and monetary damages.
On March 19, 2021, CJN filed a motion for partial summary judgment on its cause
of action for declaratory judgment, seeking an order stating Crescent had no right
of first refusal or other rights to real property CJN owned. It asserted the ROFR
was void because it constituted an unreasonable restraint on the alienation of
property and it also violated the RAP. On April 20, 2021, the master denied CJN's
motion, finding there were "apparent factual disputes and novel issues that call[ed]
for further inquiry into the facts of the case 'to clarify the application of the law.'" 7
CJN continued to seek offers on the Phase 2 Property as a whole parcel. In April
2021, CJN received an offer from Opus Petrus, LLC 8 to purchase the Phase 2
Property as a complete parcel for $1.25 million (Opus Offer). CJN tendered the
offer to Crescent on May 18, 2021, inquiring if Crescent wanted to exercise the
ROFR. Crescent notified CJN the offer was not bona fide and did not affect the
ROFR. Crescent indicated it believed the Opus Offer was an illegitimate offer
manufactured in an attempt to circumvent the ROFR and extract an unreasonable
purchase price from Crescent. Crescent asserted many of the offer's terms were
§ 1031, which sets out two different time constraints that both must be met for a
transaction to qualify for the tax benefit.
5
The parties used the term buy/sell to refer to this process.
6
The parties had substantially completed the buy/sell of lots in Phase 1 at the time
of trial.
7
The master conducted a hearing on the motion, but the record does not contain a
transcript of that hearing.
8
Bouharoun was the primary owner of Opus. Franchina and Bouharoun had
bought and sold real estate to each other beginning in 1996 and currently owned
rental properties together.
not commercially reasonable including the purchase price, the amount of earnest
money, the provision for seller financing, the financing terms and maturity date,
and the omission of standard contingencies. Crescent also contended Opus did not
conduct any due diligence on the Phase 2 Property or make any efforts to resolve
the contingency set forth in the Opus Offer relating to septic permits. Crescent
filed a new lis pendens on the Phase 2 Property in response to the Opus Offer,
maintaining the offer was not bona fide. After postponing the closing date to
provide CJN and Crescent an opportunity to resolve their issues, Opus
subsequently withdrew its offer because of legal fees and an inability to perform
any due diligence as a result of Crescent's objection. CJN began actively
marketing the Phase 2 Property for sale including listing it on MLS and Costar, 9
which it had not done previously. 10
On August 11, 2021, Crescent filed a motion to consolidate and merge its action
with CJN's.11 On October 19, 2021, CJN filed an amended complaint reiterating
its previous causes of action and adding causes of action for tortious interference
with a contractual relationship and unfair and deceptive trade practices. It added
allegations related to the Opus Offer and contended Crescent's failure to make an
offer better or equal to Opus's extinguished Crescent's rights under the ROFR. On
October 22, 2021, the master granted Crescent's motion to consolidate the two
cases. The master also determined the ROFR issue CJN raised in its complaint
should be bifurcated for trial and set a date for that proceeding.
The master presided over the initial portion of the bifurcated proceedings, trying
only CJN's cause of action for a declaration the ROFR was void and
unenforceable. At the beginning of the trial, Crescent moved to dismiss that cause
of action, arguing no justiciable controversy existed as the matter was not ripe
9
Costar provides commercial real estate listings.
10
As of the date of trial, despite the listing receiving some interest, CJN did not
have an active contract for sale for the Phase 2 Property due to the ongoing
litigation. The Phase 2 Property remained an undeveloped, single parcel, and CJN
had no current plan to develop it into lots.
11
The record does not include this motion. The record contains a letter from
Crescent to CJN stating it will seek to consolidate the cases and a response from
CJN stating it did not consent to that request.
because the previous offers 12 had been withdrawn. 13 The master denied the motion
to dismiss without further argument.
Following the hearing, the master issued an order determining the ROFR was
unenforceable because it was an unreasonable restraint on the alienation of an
interest in land, stating "based on the language used in paragraph 19, the [c]ourt is
unable to interpret and/or give meaning to the parties' agreement without
substantially and significantly creating terms and conditions that the parties
themselves could have and should have included."
Crescent filed a motion to alter or amend pursuant to Rule 59(e), SCRCP, arguing
the master erred in granting a declaratory judgment that stated the ROFR was
unenforceable. Crescent argued the ROFR was valid and enforceable.
Alternatively, Crescent contended no justiciable controversy existed as to the
ROFR's enforceability. Subsequently, the master denied the motion. This appeal
followed.
STANDARD OF REVIEW
"[O]ur standard of review for a declaratory judgment is based on the issue raised
by the request for the judgment." J & W Corp. of Greenwood v. Broad Creek
Marina of Hilton Head, LLC, 441 S.C. 642, 664, 896 S.E.2d 328, 340 (Ct. App.
2023). "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). "To determine
whether an action is legal or equitable, this [c]ourt must look to the action's main
purpose as reflected by the nature of the pleadings, evidence, and character of the
relief sought." Lollis v. Dutton, 421 S.C. 467, 478, 807 S.E.2d 723, 728 (Ct. App.
2017) (alteration in original) (quoting Fesmire v. Digh, 385 S.C. 296, 303, 683
S.E.2d 803, 807 (Ct. App. 2009)). "These distinctions must be maintained even at
the finest levels of a case." J & W Corp. of Greenwood, 441 S.C. at 664, 896
S.E.2d at 340.
12
The parties made arguments about these third-party offers, but the master did not
address these claims because it found these offers were not dispositive of the
ultimate conclusion regarding enforceability of the ROFR. Crescent argued the
Clark Offer was made before the Initial Closing occurred and the Opus Offer was
not bona fide.
13
During a deposition, Franchina, testifying on behalf of CJN, stated "there's not a
pending contract right now. I had pending contracts . . . and they scared them off."
"An action to construe a contract is an action at law reviewable under an 'any
evidence' standard." Pruitt v. S.C. Med. Malpractice Liab. Joint Underwriting
Ass'n, 343 S.C. 335, 339, 540 S.E.2d 843, 845 (2001). "This [c]ourt reviews all
questions of law de novo." Lollis, 421 S.C. at 477, 807 S.E.2d at 728 (alteration in
original) (quoting Fesmire, 385 S.C. at 302, 683 S.E.2d at 807). "In an action at
law tried without a jury, an appellate court's scope of review extends merely to the
correction of errors of law." Temple v. Tec-Fab, Inc., 381 S.C. 597, 599-600, 675
S.E.2d 414, 415 (2009). "The [appellate] [c]ourt will not disturb the trial court's
findings unless they are found to be without evidence that reasonably supports
those findings." Id. at 600, 675 S.E.2d at 415. "In an action at law, 'we will affirm
the master's factual findings if'" any evidence in the record reasonably supports
them. Query v. Burgess, 371 S.C. 407, 410, 639 S.E.2d 455, 456 (Ct. App. 2006)
(quoting Lowcountry Open Land Tr. v. State, 347 S.C. 96, 101-02, 552 S.E.2d 778,
781 (Ct. App. 2001)). "[T]he trial court's findings are equivalent to a jury's
findings in a law action. Further, questions concerning credibility and the weight
to be accorded evidence are exclusively for the trial court." McCall v. IKON, 380
S.C. 649, 658, 670 S.E.2d 695, 700 (Ct. App. 2008) (citation omitted). "We may
not consider the case based on our view of the preponderance of the evidence, but
must construe the evidence presented to the [trial court] so as to support [its]
decision wherever reasonably possible." Jordan v. Judy, 413 S.C. 341, 348, 776
S.E.2d 96, 100 (Ct. App. 2015) (alterations in original) (quoting Sheek v.
Crimestoppers Alarm Sys., 297 S.C. 375, 377, 377 S.E.2d 132, 133 (Ct. App.
1989)). "We must look at the evidence in the light most favorable to the
respondents and eliminate from consideration all evidence to the contrary." Id.(quoting Sheek, 297 S.C. at 377, 377 S.E.2d at 133). "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 (1990).
LAW/ANALYSIS
I. Justiciability
Crescent argues the master erred in ruling on the enforceability of the ROFR when
no sale or offer of sale for the Phase 2 Property was pending. It contends the issue
of enforceability was not ripe and appropriate for judicial determination in the
absence of a real and substantial controversy. It asserts the master improperly
relied upon the Clark and Opus Offers in concluding a justiciable controversy
existed at the time of trial. Crescent maintains Peoples Federal14 requires a
pending offer for a right of first refusal to be justiciable. Crescent contends Clark
and Opus both withdrew their offers prior to trial and therefore, no offer was
pending at trial. Crescent asserts the evidence demonstrates these two offers did
not create a justiciable controversy. 15 We disagree.
14
Peoples Fed. Sav. & Loan Ass'n of S.C. v. Res. Plan. Corp., 358 S.C. 460, 596
S.E.2d 51 (2004) (per curiam).
15
Crescent also raises some concerns with the offers. For the Clark Offer, it
contends that because the Agreement provided CJN would grant Crescent the
ROFR "at the Initial Closing" and Clark allegedly proposed to purchase the Phase
2 Property before the Initial Closing had occurred, Crescent did not have at that
time the power to exercise the ROFR. For the Opus Offer, Crescent contends it
was not bona fide for multiple reasons including a lack of due diligence, the
previous dealings between some members, and its being made just after denial of
summary judgment. At the beginning of the trial, Crescent moved to dismiss on
the basis of justiciability, arguing the offers were no longer pending. The circuit
court summarily denied the motion at trial and in the order. The justiciability
argument may have been argued more at a prior stage, but the record does not
include the summary judgment transcript and the order denying summary
judgment did not reference it. See Solley v. Navy Fed. Credit Union, Inc., 397 S.C.
192, 213, 723 S.E.2d 597, 608 (Ct. App. 2012) ("The record must show that the
issue was raised in the trial court."); id. at 214, 723 S.E.2d at 608 ("[T]he appellant
has the burden of providing an adequate record on appeal."); see also Rule 210(h),
SCACR ("Except as provided by Rule 212 and Rule 208(b)(1)(C) and (2), the
appellate court will not consider any fact which does not appear in the Record on
Appeal."); Com. Credit Loans, Inc. v. Riddle, 334 S.C. 176, 186, 512 S.E.2d 123,
129 (Ct. App. 1999) (finding an argument was not preserved for review on appeal
because the transcript of the proceedings in front of the trial court was omitted
from the record on appeal and thus, according to the record, the first time the
appellant made the argument was in its motion for reconsideration). The master
declined to rule on the validity of the offers in the final order because it found they
were not dispositive of the enforceability of the ROFR. While Crescent's Rule 59
motion argues the master erred in finding the matter justiciable, it does not mention
the validity of the offers or the master's failure to address their validity.
Accordingly, these arguments as to the validity of the offers are not preserved. See
Caldwell v. Wiquist, 402 S.C. 565, 576, 741 S.E.2d 583, 589 (Ct. App. 2013)
("Issues and arguments are preserved for appellate review only when they are
raised to and ruled on by the [trial] court." (emphasis added) (quoting Elam v. S.C.
Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80 (2004))); id. at 576-77,
"A threshold inquiry for any court is a determination of justiciability, i.e., whether
the litigation presents an active case or controversy." Holden v. Cribb, 349 S.C.
132, 137, 561 S.E.2d 634, 637 (Ct. App. 2002) (quoting Lennon v. S.C. Coastal
Council, 330 S.C. 414, 415, 498 S.E.2d 906, 906 (Ct. App. 1998)). "Before any
action can be maintained, a justiciable controversy must be present. A justiciable
controversy is a real and substantial controversy appropriate for judicial
determination, as opposed to a dispute or difference of a contingent, hypothetical
or abstract character." Sloan v. Greenville County, 356 S.C. 531, 546, 590 S.E.2d
338, 346 (Ct. App. 2003) (citation omitted). "Our courts will not address the
merits of any case unless it presents a justiciable controversy." Jowers v. S.C.
Dep't of Health & Env't Control, 423 S.C. 343, 353, 815 S.E.2d 446, 451 (2018).
"This [c]ourt will not . . . make an adjudication where there remains no actual
controversy." Id. (omission in original) (quoting Byrd v. Irmo High Sch., 321 S.C.
426, 430-31, 468 S.E.2d 861, 864 (1996)).
"The concept of justiciability encompasses the doctrines of ripeness, mootness, and
standing." Sloan, 356 S.C. at 547, 590 S.E.2d at 346. "A justiciable controversy is
a real and substantial controversy [that] is ripe and appropriate for judicial
determination . . . ." Id. at 552, 590 S.E.2d at 349 (quoting Pee Dee Elec. Coop.,
Inc. v. Carolina Power Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983)).
Our supreme court has "explained ripeness by defining what is not ripe, stating 'an
issue that is contingent, hypothetical, or abstract is not ripe for judicial review.'"
Jowers, 423 S.C. at 353-54, 815 S.E.2d at 451 (quoting Colleton Cnty. Taxpayers
Ass'n v. Sch. Dist. of Colleton Cnty., 371 S.C. 224, 242, 638 S.E.2d 685, 694
(2006)).
CJN brought its action under South Carolina's Uniform Declaratory Judgment Act
(the Act). See S.C. Code Ann. §§ 15-53-10 to -140 (2005). "To state a cause of
action under . . . [the] Act, a party must demonstrate a justiciable controversy."
Consignment Sales, LLC v. Tucker Oil Co., 391 S.C. 266, 274, 705 S.E.2d 73, 77
741 S.E.2d at 589 ("[W]here an issue has not been ruled upon by the trial [court]
nor raised in a post-trial motion, such issue may not be considered on appeal."
(first alteration in original) (quoting Pelican Bldg. Ctrs. of Horry-Georgetown, Inc.
v. Dutton, 311 S.C. 56, 60, 427 S.E.2d 673, 675 (1993))); see also I'On, L.L.C. v.
Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ("If the
losing party has raised an issue [to] the [trial] court, but the court fails to rule upon
it, the party must file a motion to alter or amend the judgment in order to preserve
the issue for appellate review.").
(Ct. App. 2010) (footnote omitted). "A justiciable controversy exists when a
concrete issue is present, there is a definite assertion of legal rights and a positive
legal duty which is denied by the adverse party." Id. at 274, 705 S.E.2d at 77-78(quoting Graham v. State Farm Mut. Auto. Ins. Co., 319 S.C. 69, 71, 459 S.E.2d
844, 845 (1995)). "Declaratory judgment actions must involve an actual,
justiciable controversy that is ripe for determination." Waters v. S.C. Land Res.
Conservation Comm'n, 321 S.C. 219, 228 n.7, 467 S.E.2d 913, 918 n.7 (1996).
"The . . . Act provides that '[c]ourts of record within their respective jurisdictions
shall have power to declare rights, status, and other legal relations whether or not
further relief is or could be claimed.'" Sunset Cay, LLC v. City of Folly Beach, 357
S.C. 414, 423, 593 S.E.2d 462, 466 (2004) (alteration in original) (quoting S.C.
Code Ann. § 15-53-20). "Any person interested under a . . . written contract . . . or
whose rights . . . are affected by a . . . contract . . . may have determined any
question of construction or validity arising under the . . . contract . . . and obtain a
declaration of rights . . . thereunder." S.C. Code Ann. § 15-53-30.
"Despite the Act's broad language, it has its limits. . . . A declaratory judgment
should not address moot or abstract matters." Sunset Cay, LLC, 357 S.C. at 423,
593 S.E.2d at 466. "The . . . Act is a proper vehicle in which to bring a controversy
before the court when there is an existing controversy or at least the ripening seeds
of a controversy." Id.; but see Waters, 321 S.C. at 228 n.7, 467 S.E.2d at 918 n.7
("While some jurisdictions have made exceptions in declaratory judgment actions
where the 'ripening seeds' of an actual controversy exist, we decline to utilize such
exception here because the facts do not indicate an imminent violation of rights.").
"The basic purpose of the Act is to provide for declaratory judgments without
awaiting a breach of existing rights." Sunset Cay, LLC, 357 S.C. at 423, 593
S.E.2d at 466. "The Act should be liberally construed to accomplish its intended
purpose of affording a speedy and inexpensive method of deciding legal disputes
and of settling legal rights and relationships, without awaiting a violation of the
rights or a disturbance of the relationship." Id. at 423-24, 593 S.E.2d at 466.
"The principles of justiciability developed by South Carolina appellate courts have
grown out of the federal court's interpretation of 'the case or controversy'
requirement contained in Article III of the United States Constitution." Jean
Hoefer Toal et al., Appellate Practice in South Carolina 125 (3d ed. 2016). "In
determining a ripeness issue under the 'case or controversy' requirement of Article
III of the United States Constitution, federal courts use a two-factor test: (1) the
fitness of the issues for judicial decision, and (2) the hardship to the parties of
withholding court consideration." Waters, 321 S.C. at 227-28, 467 S.E.2d at 918
(quoting Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119 (4th Cir. 1977)); see
also Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461
U.S. 190, 201 (1983) ("[T]he question of ripeness turns on 'the fitness of the issues
for judicial decision' and 'the hardship to the parties of withholding court
consideration.'" (quoting Abbott Lab'ys v. Gardner, 387 U.S. 136, 149 (1967),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977))). "The
question of 'the fitness of the issues for judicial decision' in essence comes down to
a decision as to whether the court is presented with an abstract question or a
concrete controversy." Browning-Ferris Indus. of Ala. Inc. v. Ala. Dep't of Env't
Mgmt., 799 F.2d 1473, 1478 (11th Cir. 1986).
"[T]he question in each case is whether the facts alleged, under all the
circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance
of a declaratory judgment." Id. (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941)). "The basic inquiry is whether the 'conflicting contentions
of the parties . . . present a real, substantial controversy between parties having
adverse legal interests, a dispute definite and concrete, not hypothetical or
abstract.'" Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)
(omission in original) (quoting Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93
(1945)).
"[R]ipeness is peculiarly a question of timing." Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580 (1985) (alteration in original) (quoting Reg'l Rail
Reorganization Act Cases, 419 U.S. 102, 140 (1974)). "[I]ts basic rationale is to
prevent the courts, through premature adjudication, from entangling themselves in
abstract disagreements." Id. (alteration in original) (quoting Abbott Lab'ys, 387
U.S. at 148). "A claim is not ripe for adjudication if it rests upon 'contingent future
events that may not occur as anticipated, or indeed may not occur at all.'" Texas v.
United States, 523 U.S. 296, 300 (1998) (quoting Thomas, 473 U.S. at 580-81).
"The difference between an abstract question and a 'case or controversy' is one of
degree, of course, and is not discernible by any precise test." Babbitt, 442 U.S. at
297. "[W]hether particular facts are sufficiently immediate and real to constitute
an actual controversy and thus present an issue fit for judicial decision is
something that must be worked out on a case-by-case basis." Browning-Ferris
Indus., 799 F.2d at 1478.
Although the determination of ripeness is a case-by-case decision, similar cases
can be helpful in determining if a matter is ripe. See id. at 1479 (explained
"examples of cases in some ways similar to the one under consideration" are
helpful in determining if a matter is ripe). A few South Carolina cases have
examined the doctrine of ripeness as it applies to rights of first refusal. Crescent
points to very specific language in one of them, Peoples Federal, to support its
position that the lack of a pending offer at the time of trial renders the
determination of the enforceability of the ROFR nonjusticiable. However, an
examination of Peoples Federal, and the cases on which it relies, demonstrates this
interpretation is too narrow. In Peoples Federal, the defendants asserted no
justiciable controversy surrounded a right of first refusal provision's enforceability
because the plaintiff had not received a bona fide offer to purchase its property. Id.
at 476-77, 596 S.E.2d at 60. Our supreme court agreed, noting "a case or
controversy regarding the validity of a pre-emptive right does not accrue until the
right has been asserted." Id. at 477, 596 S.E.2d at 60 (citing Webb v. Reames, 326
S.C. 444, 485 S.E.2d 384 (Ct. App. 1997)). The supreme court stated, "Absent a
pending sale or offer for sale, or purchase or offer to purchase, or the presence of a
third party challenging right of first refusal, there is no justiciable controversy." Id.(citing Parker v. Weed, 713 P.2d 535 (Mont. 1986)). The court explained,
"Because [the plaintiff] does not have a pending offer for the purchase of its
property, there is currently no justiciable controversy concerning the validity of the
preemptive right provision . . . ." Id.Although Peoples Federal stated the determination of whether a right of first
refusal was enforceable in that case was not ripe because no offer for purchase was
pending, the situation is different here. See id. In Peoples Federal, "there [wa]s no
justiciable controversy surrounding the right of first refusal provision because
Peoples ha[d] not received a bona fide offer to purchase its property." Id. at 476-
77, 596 S.E.2d at 60 (emphasis added). Here, CJN received two offers to
purchase. Additionally, Crescent filed multiple lis pendens once learning of the
offers.16
Furthermore, in Parker, the case to which Peoples Federal cited, the Montana
Supreme Court relied on a previous opinion, Hardy v. Krutzfeldt, which stated
16
"A properly filed lis pendens binds subsequent purchasers or encumbrancers to
all proceedings evolving from the litigation." Pond Place Partners, Inc. v. Poole,
351 S.C. 1, 16-17, 567 S.E.2d 881, 889 (Ct. App. 2002) (quoting S.C. Nat'l Bank v.
Cook, 291 S.C. 530, 532, 354 S.E.2d 562, 562 (1987)). "Generally, the filing of a
lis pendens places a cloud on title which prevents the owner from freely disposing
of the property before the litigation is resolved." Id. at 17, 567 S.E.2d 889.
"there has not been any intent by any party to sell property outside the preemptive
clause, nor any third party seeking to be relieved from the preemptive clause." 713
P.2d at 536 (emphasis added) (quoting Hardy v. Krutzfeldt, 672 P.2d 274, 276
(Mont. 1983)). In both Hardy and Parker, it seems no offer had been made at any
point. The same was true in Peoples Federal; no offer had ever been made.
Likewise, in Queen's Grant II Horizontal Property Regime v. Greenwood
Development Corp., this court "decline[d] to resolve [an] issue [concerning a right
of first refusal] because there [wa]s no justiciable controversy surrounding the right
of first refusal provision." 368 S.C. 342, 370, 628 S.E.2d 902, 917 (Ct. App.
2006). We found the "record [wa]s devoid of any attempt at any time by [the
developer] to exercise its right of repurchase." Id. (emphasis added).
In Webb, referenced by the supreme court in Peoples Federal, this court
determined, "A case or controversy regarding the validity of the pre-emptive right
at issue . . . accrue[d] [once the plaintiff] in her complaint notified the . . . heirs of
the grantor[] of another person's interest in purchasing the property and the [heirs]
responded by asserting the right of first refusal conferred upon the grantor's heirs in
the deed." Webb, 326 S.C. at 447, 485 S.E.2d at 385. In the present case, these
conditions have been met.
Based on the foregoing, we do not read Peoples Federal as requiring an offer to
currently be pending in order for a matter to be ripe. Once a bona fide offer has
been made the matter is ripe. Neither party has provided any similar cases
regarding ripeness in which offers were made and subsequently withdrawn.
Further, CJN's listing the Phase 2 Property for sale on real estate services also can
be interpreted as an offer for sale. Accordingly, the first prong from Waters, "the
fitness of the issues for judicial decision," has been met. See Waters, 321 S.C. at
227, 467 S.E.2d at 918.
The second prong of Waters, "the hardship to the parties of withholding court
consideration," is also met. See id. at 227-28, 467 S.E.2d at 918. CJN has shown
hardship through losing the Clark and Opus Offers and the likelihood of facing
similar obstacles as those it encountered with those offers if it receives an offer to
purchase the Phase 2 Property in the future. Therefore, the master did not err in
finding the matter presented a justiciable controversy.
II. Unreasonable Restraint on Alienation
Crescent maintains the master erred in determining the ROFR created an
unreasonable restraint on the alienation of an interest in land. It argues the
evidence in the record was inconsistent with the master's finding that the ROFR
created an unreasonable restraint because it lacked specific terms, including (1) the
terms and conditions of purchase by Crescent, (2) the time allowed for Crescent to
exercise the ROFR, (3) the procedures for exercising the ROFR, (4) the purchase
price of the lots, and (5) how long the ROFR would exist. It contends the master's
finding is inconsistent with evidence the parties intended for Crescent to purchase
the Phase 2 Property at the same price a third party offered. Crescent contends the
public policy concerns supporting the rule against unreasonable restraint on the
alienation as it relates to the reasonableness of time are not at issue in this case. It
contends that because the parties entered into the Agreement prior to the Initial
Closing, the ROFR does not include specific terms relating to timing and price. It
further asserts that although the ROFR does not provide a time period for the
duration of the ROFR, the record shows the parties believed a three-, five-, or ten-
year period would all be reasonable. It contends the master's finding contradicts
the parties' intentions. We disagree.
"Under South Carolina common law, any unreasonable limitation upon the power
of alienation [of land] is against public policy and must be construed as having no
force and effect." Wise v. Poston, 281 S.C. 574, 579, 316 S.E.2d 412, 415 (Ct.
App. 1984). "An absolute restraint upon the free and unlimited power of
alienation, annexed to a grant or devise in fee simple is void . . . ." Id.A right of first refusal is a pre-emptive right. See Webb, 326 S.C. at 446, 485
S.E.2d at 385. It "is a contingent, nonvested interest in that the [property owner]
might never choose to sell the property." Id. "It is an interest not conditioned on
an event certain to occur." Id. "In general, a right of first refusal requires the
property owner, when and if he decides to sell, to first offer the property to the
holder of the right of first refusal." Clarke v. Fine Hous., Inc., 438 S.C. 174, 180,
882 S.E.2d 763, 766, cert. denied, 143 S. Ct. 2584 (2023). "Accordingly, a right of
first refusal restrains an owner's power of alienation to a degree by requiring the
owner to offer the property first to the holder of the right." Id. at 180-81, 882
S.E.2d at 766-67.
"The question of whether a right of first refusal is enforceable turns upon whether
the right unreasonably restrains alienation." Id. at 181, 882 S.E.2d at 767. In
Clarke, our supreme court, agreeing with the Restatement of Property approach,
"h[e]ld the factors to be considered in assessing whether a right of first refusal
unreasonably restrains alienation include (1) the legitimacy of the purpose of the
right, (2) the price at which the right may be exercised, and (3) the procedures for
exercising the right." Id. (citing Restatement (Third) of Property: Servitudes § 3.4
(Am. Law Inst. 2000)). However, the court explained " th[o]se factors [we]re not
exclusive" and addressed an additional factor, "the lack of clarity as to what real
property the [r]ight encumbers." Id. The court analyzed the right of first refusal in
that case by looking in detail at three factors: (1) the clarity of what is encumbered;
(2) the price; and (3) the procedures to exercise the right. Id. at 181-87, 882 S.E.2d
at 767-70.
First, as to the question of the clarity of the property encumbered, the supreme
court observed: "Typically, the identity of the property encumbered by a right of
first refusal is obvious from a plain reading of the instrument." Id. at 182, 882
S.E.2d at 767. The supreme court noted that in that case, the right (the Right) was
contained in a lease of parking spaces. Id. The lease document included an
exhibit, Exhibit A, which was a written description of land that included
"buildings, the leased parking spaces, other parking spaces, and other land" (the
Subject Property). Id. In that case, the lessee brought an action for specific
performance after the lessor sold all of the Subject Property described by the
exhibit, including the leased parking spaces, to a buyer without first offering the
Subject Property to the lessee. Id. at 179-80, 882 S.E.2d at 766.
The lessee relied on one provision of the lease in arguing the Right unambiguously
applied to all of the Subject Property; that provision stated "Lessee hereby leases
from Lessor the property generally described in Exhibit 'A' attached hereto." Id. at
182-83, 882 S.E.2d at 768. The buyer argued the exhibit simply identified the
location of the parking spaces and nothing in the lease clarified what property the
Right encumbered. Id. at 183, 882 S.E.2d at 768. The supreme court agreed with
the buyer's argument that the uncertainty as to the property the Right encumbered
supported the conclusion that the Right unreasonably restrained the alienation of
property. Id. The supreme court found the lease was unclear as to whether the
Right encumbered all of the Subject Property or only the leased parking spaces.
Id. The Right stated in its entirety: "Lessor grants the Lessee the right of first
refusal should it wish to sell." The court noted this raised the question as to what
was being sold. Id. It found neither the provision relied on by lessee nor Exhibit A
supported the conclusion that the Right applied to all of the Subject Property. Id.
The court further determined "[o]ther provisions in the Lease strongly indicate the
Right encumbers only the leased parking spaces" as those provisions described the
parking spaces and one of those provisions "establishe[d] Exhibit A serve[d] solely
to identify the location of the parking lot and the parking spaces leased." Id. The
court concluded "a right of first refusal that does not identify the property it
encumbers can substantially restrain alienation of real property." Id. The court
held that "under the facts of th[at] case, the uncertainty as to what property is
encumbered by the Right supports the conclusion that the Right is an unreasonable
restraint on alienation." Id.
Next, the supreme court looked at the price factor. Id. at 184, 882 S.E.2d at 768. It
recognized that "[i]n general, provisions governing the price at which a right of
first refusal may be exercised are important in assessing the impact on alienation.
For example, a right of first refusal that may be exercised at a fixed price can
substantially restrain alienation." Id. (citing Selig v. State Highway Admin., 861
A.2d 710, 719 (Md. 2004) (explaining that with the passage of time, a fixed price
may bear no relationship to market value)). The court provided that in situations in
which "the holder of the right may match the offer of a third party, the restraint on
alienation may be lessened." Id.The supreme court determined the Right included no provision regarding price. Id.The lessee acknowledged the Right did not provide a fixed price but argued the
Right allowed the lessor to determine the sales price and simply required he match
any offer received. Id. Alternatively, the lessee asserted the exercise of the Right
would have started a bidding war, which would have benefited the lessor. Id.However, the buyer maintained the omission of a provision for a method to
determine the price created an unreasonable restraint on alienation. Id. The
supreme court agreed with the buyer. Id. The court noted that "[a]lthough a right
. . . that is silent as to price might not restrain alienation to the same degree as a
right . . . containing a fixed price, a right . . . should contain some method for
determining the price at which it may be exercised." Id. at 184, 882 S.E.2d at 769.
The court indicated that "[i]f the Right [had] provided that [the lessee] could
acquire the Subject Property by matching the terms of a third-party offer, the
restraint on [the lessor's] power of alienation would perhaps have been minimal."
Id.
The court explained that when a right "provides no price terms, a dispute may arise
as to whether the holder of the right may purchase the property by matching a
third-party offer or only after participating in a bidding war with other prospective
buyers." Id. at 185, 882 S.E.2d at 769. The court found that possibility did not
weigh in favor of a determination that such a right was not an unreasonable
restraint on alienation. Id. The Clarke court determined that in that case, "the
complete absence of any method for determining price weighs in favor of a finding
that the Right is an unreasonable restraint on alienation." Id.
Last, the Clarke court looked at the procedures provided for exercising the Right.
Id. The court found in that case the Right contained no procedures at all to govern
the exercise of the Right. Id.
The court noted that a comment to the Restatement provided:
The provisions governing exercise of the right of first
refusal are important in determining its impact on
alienability. Lack of clarity may cause substantial harm
by making it difficult to obtain financing and exposing
potential buyers to threats of litigation. Lengthy periods
for exercise of rights of first refusal will also
substantially affect alienability of the property.
Id. (quoting Restatement (Third) of Property: Servitudes § 3.4 cmt. f (Am. Law
Inst. 2000)).
The court noted that "[w]hen applying this factor, courts often examine the time
period within which the right can be exercised after the owner decides to sell." Id.
"Alienation can be substantially restrained when the holder of the right has an
extended time to decide whether he will purchase the property. However, when
the time allowed for the exercise of the right is reasonable, the right will generally
be enforced." Id. (citation omitted). The court found the lack of a "limitation on
the time within which [the lessee] could exercise the Right after being notified of
[the lessor's] desire to sell" "supports the conclusion that the Right is an
unreasonable restraint on alienation." Id.
The lessee argued the law would imply a "reasonable time" within which he could
exercise the Right, relying on Hobgood v. Pennington, which involved a closing
period for a real estate purchase agreement. Clarke, 438 S.C. at 186, 882 S.E.2d at
769-70 (citing Hobgood v. Pennington, 300 S.C. 309, 314, 387 S.E.2d 690, 693
(Ct. App. 1989) ("When the contract does not include a provision that time is of
the essence, the law implies that it is to be done within a reasonable time . . . .")).
The Clarke court disagreed with the lessee's argument that a reasonable time
should be implied, finding Hobgood did not support the lessee's argument because
(1) the case was "factually distinguishable because it had nothing to do with a right
of first refusal" and (2) the argument "misse[d] the point of the Restatement
approach by arguing a court can simply imply a reasonable time requirement in
which a right of first refusal must be exercised." Id. at 186-87, 882 S.E.2d at 770.
The court noted "[t]he whole point of the Restatement is to predetermine a limited
time within which a right of first refusal must be exercised to protect the owner's
power of alienation." Id. at 187, 882 S.E.2d at 770. The court further explained,
"A judicially implied 'reasonable time' requirement would do little to protect the
owner's power of alienation. Lengthy litigation over what is or is not a reasonable
time under the facts of any given case will necessarily restrain alienation." Id.
Ultimately, the supreme court in Clarke concluded "[t]he Right d[id] not identify
the property it encumbers, contain price provisions, or contain procedures
governing the exercise of the Right" and thus, "the Right [wa]s an unreasonable
restraint on alienation" and the court affirmed this court's "holding that the Right
[wa]s unenforceable." Id.
In the present case, the Clarke factors all support the same conclusion here—the
ROFR is an unreasonable restraint on the alienation of property. The amount of
time the ROFR lasted and the procedure for exercising the ROFR were both clearly
missing from the ROFR. The ROFR is unclear as to what property it encumbered
because it only spoke to lots. However, no lots yet existed; the lots would have
come from the tract of raw land. Accordingly, whether the ROFR would apply to
the land as a whole was unclear.
Even without this uncertainty, the lack of the amount of time the ROFR would
exist 17 and the procedures for executing the ROFR and determining price made the
ROFR an unreasonable restraint on alienation of property. Crescent, like the lessee
in Clarke, relies on Hobgood to assert a reasonable time should be implied.
Hobgood "addressed the issue of whether a real estate purchase and sale agreement
expired after the closing date contained in the agreement." Clarke, 438 S.C. at
186, 882 S.E.2d at 769-70 (citing Hobgood, 300 S.C. at 313-14, 387 S.E.2d at 692-
93). This court in Hobgood stated, "[T]ime is not of the essence of a contract to
convey land unless made so by its terms expressly or by implication from the
nature of the subject matter, the object of the contract or the situation or conduct of
the parties." 300 S.C. at 314, 387 S.E.2d at 693. "The Hobgood court held that
17
Terry, Crescent's owner, on cross-examination agreed the ROFR's language did
not contain a time limit. Crescent states in its appellant's brief that the ROFR does
not contain specific terms for timing and price but argues the record shows the
parties believed a three-, five-, or ten-year term would all be reasonable. The
paragraph that makes up the entire ROFR has no statement about time, but a
separate section of the Agreement, Paragraph 21, entitled Miscellaneous, included
a provision stating: "Time of Essence. Time is of the essence with respect to this
Agreement." (underlining omitted).
because the contract did not include a provision stating time was of the essence, the
contract had not expired." Clarke, 438 S.C. at 186, 882 S.E.2d at 770.
Specifically, Hobgood provided, "When the contract does not include a provision
that time is of the essence, the law implies that it is to be done within a reasonable
time; and the failure to incorporate in the memorandum such a statement does not
render it insufficient." Hobgood, 300 S.C. at 314, 387 S.E.2d at 693. As noted
above, the Clarke court rejected the application of Hobgood to the facts in that case
because Hobgood did not concern a right of first refusal and applying it misses the
point of the Restatement, that a reasonable amount of time cannot simply be
implied. See Clarke, 438 S.C. at 186-87, 882 S.E.2d at 770. We see no
differences in this case that would cause Hobgood to apply here. Accordingly, the
master did not err in finding as such and thus, finding the ROFR unenforceable.
We affirm the master's determination the ROFR was an unreasonable restraint on
the alienation of property.
III. Evidence of the Parties' Conduct and Intent
Crescent argues the master erred by disregarding evidence of the parties' conduct18
and intent as to the ROFR's terms. It asserts the master determined the ROFR was
18
On appeal, Crescent's argument as to conduct concerns allegations CJN did not
act in good faith in various ways, which it contends violated both the specific
language of the Agreement and the implied covenant of good faith and fair dealing.
The master made no mention of conduct in its order. Crescent's complaint
included a cause of action for breach of contract/breach of the covenant of good
faith and fair dealing. However, the master bifurcated the action, and the portion
of the case tried and now on appeal was CJN's cause of action for a declaration the
ROFR was void and unenforceable. Crescent mentioned CJN's conduct once in its
Rule 59(e), SCRCP, motion, stating "the preponderance of the evidence showed
that it was CJN who prevented [the ROFR] memorandum from being filed, which
precludes CJN from reaping any benefit from the absence of a recorded
memorandum. In this regard, CJN's conduct violated its duties and obligations
under the Agreement." Accordingly, the argument regarding CJN's conduct is not
preserved. See Caldwell, 402 S.C. at 576, 741 S.E.2d at 589 ("Issues and
arguments are preserved for appellate review only when they are raised to
and ruled on by the [trial] court." (quoting Elam, 361 S.C. at 23, 602 S.E.2d at 779-
80)); see also Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)
("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 for appellate review."); Abba
ambiguous despite not using that term and thus, the master should have relied on
evidence outside of the contract to supply missing terms. 19 It maintains the master
erred in finding the ROFR unenforceable due to its lack of specific and critical
areas, when instead the master should have supplied missing terms from the
record. It contends the master disregarded undisputed evidence the parties
intended to have an enforceable right of first refusal. Crescent asserts the parties'
intentions for the specific terms and conditions render the ROFR enforceable.20
We affirm the master's ruling.
Equip., Inc. v. Thomason, 335 S.C. 477, 486, 517 S.E.2d 235, 240 (Ct. App. 1999)
("The same ground argued on appeal must have been argued to the trial [court].").
19
Crescent further asserts the master made inconsistent findings as to the ROFR's
ambiguity. Crescent did not make this argument in its Rule 59(e) motion.
Therefore, it is unpreserved. See Caldwell, 402 S.C. at 576, 741 S.E.2d at 589
("Issues and arguments are preserved for appellate review only when they are
raised to and ruled on by the [trial] court." (quoting Elam, 361 S.C. at 23, 602
S.E.2d at 779-80)); see also Pelican Bldg. Ctrs., 311 S.C. at 60, 427 S.E.2d at 675(finding unpreserved an argument the trial court's oral and written orders were
inconsistent when the appellant first made that argument on appeal); id.("Appellant asserts that his failure to interpose an objection in the circuit court was
due to the fact that he was unaware until he received the written order [that the
circuit court was making certain rulings]. We note that Rule 59(e), SCRCP,
provides for a motion to alter or amend judgment and preserve the record for
appeal."); Revis v. Barrett, 321 S.C. 206, 210, 467 S.E.2d 460, 462-63 (Ct. App.
1996) (finding an argument that the trial court's order contained a discrepancy was
unpreserved when the appellants "never filed a [m]otion to [a]lter or [a]mend the
[j]udgment to clarify the order, Rule 59, SCRCP, nor did they seek clarification
pursuant to Rule 60(a), SCRCP"), overruled on other grounds by Simmons v.
Berkeley Elec. Coop., Inc., 419 S.C. 223, 797 S.E.2d 387 (2016); Nelums v.
Cousins, 304 S.C. 306, 307-08, 403 S.E.2d 681, 681-82 (Ct. App. 1991) (per
curiam) (finding a trial court's alleged failure to clarify and specify whether an
easement was by necessity or was a prescriptive easement was not preserved, when
the appellant had made no motion to amend the judgment).
20
Crescent also contends in this section the master relied upon erroneous findings
of fact. However, the statement of issues on appeal does not include this argument.
Crescent argues this in the section for the argument "Did the master improperly
refuse to consider and accept evidence as to the conduct and intent of the parties
regarding the [ROFR]?" (capitalization omitted). Accordingly, we will not
consider this argument. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will
be considered which is not set forth in the statement of the issues on appeal.");
Only "if a contract is ambiguous, [is] parol evidence . . . admissible to ascertain the
true meaning and intent of the parties." HK New Plan Exch. Prop. Owner I, LLC
v. Coker, 375 S.C. 18, 23-24, 649 S.E.2d 181, 184 (Ct. App. 2007) (quoting Koontz
v. Thomas, 333 S.C. 702, 709, 511 S.E.2d 407, 411 (Ct. App. 1999)). "[W]here a
contract is silent as to a particular matter, and ambiguity thereby arises, parol
evidence may be admitted to supply the deficiency and establish the true intent."
Frewil, LLC v. Price, 411 S.C. 525, 530, 769 S.E.2d 250, 253 (Ct. App. 2015)
(quoting Columbia E. Assocs. v. Bi-Lo, Inc., 299 S.C. 515, 519, 386 S.E.2d 259,
261 (Ct. App. 1989)). "If the court decides the language is ambiguous, . . .
evidence may be admitted to show the intent of the parties, and the determination
of the parties' intent becomes a question of fact for the fact-finder." Williams v.
Gov't Emps. Ins. Co. (GEICO), 409 S.C. 586, 594, 762 S.E.2d 705, 710 (2014).
In the initial phase of this bifurcated matter, the master addressed CJN's claim that
the ROFR was void and of no effect. CJN alleged in its amended complaint "the
ROFR is void as an unreasonable restraint on alienation because it lacks specificity
as to duration of the right, the property subject to the right, the purchase price, and
the procedures for exercising the right, among other things." In Crescent's answer,
it denied the allegation without explanation. The trial consisted merely of
testimony by two witnesses, with no substantial arguments by the parties.
Following the bifurcated trial, the master found the ROFR lacked numerous
essential terms, stating:
The language of the [ROFR] . . . is lacking in any number
of specific and critical areas. This includes terms and
conditions of purchase by Crescent, the time allowed for
exercise of the [ROFR] by Crescent, the procedures for
exercising the right, the purchase price of the lots, how
long the right exists, among other things.
State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("No point will be
considered [that] is not set forth in the statement of issues on appeal."); Dawkins v.
Sell, 434 S.C. 572, 589 n.3, 865 S.E.2d 1, 10 n.3 (Ct. App. 2021) (declining to
address issues not listed in the statement of issues on appeal); Wright v. Craft, 372
S.C. 1, 21, 640 S.E.2d 486, 497 (Ct. App. 2006) (finding an argument not
contained in an appellant's statement of issues on appeal is not properly before the
appellate court).
In its 59(e) motion, Crescent only argued the master should have relied on the
evidence in the record to supply a reasonable time to exercise the ROFR and how
long the ROFR existed stating:
The [master] should have given weight to the evidence in
the record and testimony from both parties that provided
the basis for supplying reasonable time frames in which
the [ROFR] had to be exercised. Additionally, the parties
presented evidence as to the reasonable length of time to
which the duration of the [ROFR] could be limited.
Because the master found the ROFR lacked the numerous specific terms—terms
and conditions of purchase by Crescent, the time allowed for exercise of the ROFR
by Crescent, the procedures for exercising the right, and the purchase price of the
lots, how long the right exists—and in Crescent's 59(e) motion, it only argues the
master should have relied on extrinsic evidence to supply the missing terms as to
time, only an argument that the master should have supplied the missing time
terms, and none of the other terms the master found were missing, are preserved
for appeal. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("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 for appellate review."); Abba Equip., Inc., 335
S.C. at 486, 517 S.E.2d at 240 ("The same ground argued on appeal must have
been argued to the trial [court]."); see also Pelican Bldg. Ctrs., 311 S.C. at 60, 427
S.E.2d at 675 (finding unpreserved an argument the trial court's oral and written
orders were inconsistent when the appellant first made that argument on appeal);
id. ("Appellant asserts that his failure to interpose an objection in the circuit court
was due to the fact that he was unaware until he received the written order that the
[circuit court was making certain rulings]. We note that Rule 59(e), SCRCP,
provides for a motion to alter or amend judgment and preserve the record for
appeal."); Revis, 321 S.C. at 210, 467 S.E.2d at 462-63 (finding an argument that
the trial court's order contained a discrepancy was unpreserved when the appellants
"never filed a [m]otion to [a]lter or [a]mend the [j]udgment to clarify the order,
Rule 59, SCRCP, nor did they seek clarification pursuant to Rule 60(a), SCRCP").
Further, because the master found numerous terms were missing from the ROFR
and Crescent only preserved for our review the argument that the timing terms
could be supplied by looking outside the document to consider the evidence in the
record, we affirm this issue. Additionally, on appeal Crescent specifically argues
the master should have supplied the missing contract terms of "missing time
frames" and "procedures for executing the ROFR." 21 It asserts the evidence in the
record demonstrated the parties agreed a ten-year term was reasonable. Because
this argument leaves out the other terms that the master found were missing, we
also affirm this issue under the two-issue rule. See Atl. Coast Builders &
Contractors, LLC v. Lewis, 398 S.C. 323, 328, 730 S.E.2d 282, 284 (2012)
("Under the two[-]issue rule, where a decision is based on more than one ground,
the appellate court will affirm unless the appellant appeals all grounds because the
unappealed ground will become [the] law of the case." (quoting Jones v. Lott, 387
S.C. 339, 346, 692 S.E.2d 900, 903 (2010), abrogated on other grounds by Repko
v. County of Georgetown, 424 S.C. 494, 818 S.E.2d 743 (2018))); see also Dreher
v. S.C. Dep't of Health & Envtl. Control, 412 S.C. 244, 249-50, 772 S.E.2d 505,
508 (2015) ("'An unappealed ruling is the law of the case and requires affirmance.'
Thus, should the appealing party fail to raise all of the grounds upon which [the
trial] court's decision was based, those unappealed findings—whether correct or
not—become the law of the case." (quoting Shirley's Iron Works, Inc. v. City
of Union, 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013))).
Accordingly, we affirm the master's failure to use evidence in the record from
outside the ROFR to the missing terms.
IV. The RAP
Crescent notes that because the master found the ROFR was an unreasonable
restraint on the alienation of property, it declined to address whether the ROFR
violated the RAP. Crescent contends that if the master had reached the issue of the
RAP, even if it then found the ROFR violated the RAP, the master could have
reformed the ROFR to not violate the RAP. However, our determination that the
ROFR is an unreasonable restraint on the alienation of property is dispositive as to
Crescent's RAP argument. Accordingly, we do not need to address Crescent's
argument on the RAP. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not
address remaining issues when its determination of a prior issue is dispositive of
the appeal).
21
In the argument in the appellant's brief regarding the master's alleged error in
determining the ROFR created an unreasonable restraint on the alienation of
property, Crescent argues the record contains evidence the parties intended
Crescent to be allowed to purchase the property at the same price offered by a third
party.
CONCLUSION
We affirm the master's decision. This matter is ripe for review and a justiciable
controversy exists. Further, the master did not err in concluding the ROFR was an
unreasonable restraint on the alienation of property and thus unenforceable.
Additionally, the master did not err in not considering evidence outside of the
ROFR. Therefore, the master's decision is
AFFIRMED.
WILLIAMS, C.J., concurs.
MCDONALD, J., concurs in result only.