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2007-UP-358 - Ayers v. Freeman

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Gregory L. Ayers, M.D., Thomas L. Brown, M.D., Bill R. Chandler, Everette P. Fuller, M.D., and Reidville Investment Properties, LLC., Respondents,

v.

W. E. Freeman, Appellant.


Appeal From Spartanburg County
 Roger L. Couch, Master-in-Equity


Unpublished Opinion No. 2007-UP-358
Submitted June 1, 2007 – Filed August 6, 2007
Withdrawn, Substituted and Refiled October 9, 2007


AFFIRMED


Oscar W. Bannister, of Greenville, for Appellant.

M. Kyle Thompson and Mason A. Goldsmith, both of Greenville, for Respondents.

PER CURIAM:  W. E. Freeman appeals the master-in-equity’s acceptance of the accounting performed by Cordell Porter.  Freeman contends the master erred in: (1) appointing Porter because he was biased in favor of Respondents; (2) failing to give proper notice of when the accounting would take place, thereby depriving Freeman of an opportunity to submit additional information to Porter for the purposes of an accounting; (3) awarding damages based on a flawed accounting; (4) finding Freeman’s commissions were limited to the funds actually received; and (5) allowing Respondents to amend their complaint.  We affirm. 

FACTS

In late 1994, Gregory Ayers, Thomas L. Brown, Everette Fuller, Bill Chandler (collectively Respondents), and Freeman formed a general partnership called Reidville Investment Properties.  Reidville Investment Properties was succeeded by Reidville Investment Properties, LLC (Reidville), which engaged in the real estate development business.  Reidville sought to develop property into a residential subdivision known as Abner Creek Station (Abner Creek).  In order to develop Abner Creek, Reidville obtained a loan in excess of $1,000,000.  Each of the individual Respondents and Freeman were personally liable for the entire amount under the terms of the loan. 

Reidville selected Freeman as manager due to his background in accounting and business management.  Freeman was licensed by South Carolina as an accounting practitioner and held himself out to be an accounting and bookkeeping professional.  Freeman maintained all books and records of Reidville, controlled the outflow of money, balanced the checkbook, received the bank statements, and had the responsibility of all bookkeeping activities.  Reidville’s operating agreement entitled Freeman to a ten percent commission from the sale of all lots in Abner Creek.

Abner Creek was not successful.  The sales of lots in Abner Creek arranged by Freeman were based upon small cash payments with mortgages for the remainder of the purchase price.  He subordinated these mortgages to those of the financing banks.  Freeman never collected the second mortgages owed to Reidville, and some of them ended up being uncollectible.  In 1998 and 1999, the other members of Reidville became concerned about Freeman’s sparse reporting of the financial situation and repeatedly requested to be provided with a balance sheet, profit and loss statement, and other financial information.  Freeman provided very little of this information and resigned as manager in May 1999.  

Reidville then retained Cordell Porter to undertake the task of sorting and maintaining Reidville’s books and records.  The records Porter received from Freeman were in disarray.  Many documents were missing and Porter discovered that many checks written on behalf of Reidville had no invoice or documentation justifying the expense.  Bank statements and cancelled checks were missing.  After reviewing the documentation Freeman had provided, Porter further discovered certain dividends from investments had been deposited into Freeman’s personal accounts.  An additional bank account in Reidville’s name, of which the other partners had no knowledge, was also discovered.  This account reflected numerous deposits and withdrawals with no substantiation as to where the funds came from or why the withdrawals were made. 

Additionally, Respondents were forced to personally pay loans and interest payments that were called because of Reidville’s lack of funds.  Freeman did not contribute to these payments.  Also, Reidville sold a 225 acre tract of land, known as the Runion Tract, in order to avoid foreclosure.[1]

Respondents brought this action against Freeman, seeking inter alia, an accounting and actual and punitive damages for breach of his fiduciary duties to Reidville.  Freeman answered and counterclaimed for fees and expenses he claimed were due under the operating agreement as well as wages.  The matter was referred to a master by consent of the parties. 

Prior to the hearing, Respondents filed a motion and proposed amended complaint identical to the original complaint except for the addition of an equitable subrogation cause of action.  On the day of the hearing, the master denied the motion, but told the parties he would reconsider the motion at the end of the hearing.  At the end of the hearing, the master granted the motion to amend.  The master also indicated he was considering whether an accounting was necessary, given the work that had already been done to reconstruct the books.  Respondents suggested that if a further accounting was required, Porter should be the accountant due to his familiarity with the books.  The master asked both attorneys to submit letters concerning the necessity of having someone perform an accounting and to recommend an individual to perform the task.  Ultimately, the master found Freeman had breached his fiduciary duty and the individual Respondents were entitled to equitable subrogation against Freeman.  The master further ordered Porter to perform an accounting on behalf of the court. 

After Porter issued his final report, the master adopted the accounting in his order.  Freeman filed a rule 59(e), SCRCP, motion, claiming that he did not have the opportunity to participate in the accounting and seeking to present new evidence.  The master denied the motion, finding that Freeman knew the accounting by Porter was taking place, but failed to participate in it.  Further, he held Freeman sought to introduce materials which were not new and which had been available at the time of the hearing.  This appeal followed.

LAW/ANALYSIS

I.  Accounting

Freeman contends the accounting was improper for the following reasons: (1) the appointment of Porter was improper because Porter was biased in favor of the Respondents; (2) Freeman was not given proper notice of the accounting thereby depriving him of his right to submit additional evidence; and (3) the master erred in awarding damages based on this flawed accounting.   We disagree. 

A.  Appointment of Porter

Freeman asserts the master erred in appointing Porter to perform the accounting because Porter had previously been used as a witness for the Respondents and was therefore biased in Respondents’ favor.  We disagree.

At the close of trial, the master noted that both sides had requested an accounting.  He also expressed concern that retaining an accountant would be an added expense to the parties, and that he was considering using Porter in that capacity.  Counsel for Freeman stated he had no problem with the work Porter had done so far, but he did express reluctance to use him for the accounting since he had testified in favor of Reidville. 

The master then requested counsel to submit letters concerning the accounting.  Counsel for Reidville thereafter sent a letter to the court expressing a preference to have Porter perform the accounting.  Subsequently, counsel for Freeman submitted a letter agreeing that an accounting was needed; however, counsel neither objected to the use of Porter nor suggested anyone in the alternative.  By order dated July 6, 2004, the master issued the final order with Porter’s accounting attached thereto.  Counsel for Freeman filed a motion to alter or amend the order, but did not raise any issue regarding the appointment of Porter.

We hold that Freeman cannot now challenge the propriety of appointing Porter to perform the accounting.  Freeman never objected to the use of Porter and he failed to suggest an alternative accountant.  See Gambrell v. Gambrell, 295 S.C. 457, 460, 369 S.E.2d 662, 664 (Ct. App. 1988) (holding Wife could not complain of any alleged omission in the family court’s equitable division where the trial judge left it up to the parties to petition the court for a determination of the division scheme of certain assets and Wife failed to do this); cf. Hough v. Hough, 312 S.C. 344, 347, 440 S.E.2d 387, 389 (Ct.App.1994) (finding litigant may not sit back and fail to offer evidence on a matter and then be heard to complain on that issue); Honea v. Honea, 292 S.C. 456, 357 S.E.2d 191 (Ct.App.1987) (explaining the burden is on appellant to show the trial court committed reversible error and a party cannot sit back at trial without offering proof, then come to the appellate court complaining of the insufficiency of evidence to support the trial court’s findings).  Moreover, even if we were to construe Freeman’s counsel’s statement at the close of trial as an objection to Porter performing the accounting, the master did not rule on this issue in his order. Because Freeman failed to raise this issue in his Rule 59(e), SCRCP, motion, it is not preserved for our review.  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 in the lower 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”).

B.  Notice of accounting

Freeman also asserts he was not given proper notice of when the accounting would take place nor was he given an opportunity to submit additional information to Porter for the purposes of an accounting.  Because these arguments were not raised at the first opportunity, we find they are not preserved for our review.

On September 26, 2003, the master sent a letter to both parties advising them that Porter had been selected as the accountant.  Despite this notice, Freeman chose not to participate.  On May 4, 2004, the master adopted Porter’s accounting; however, a final order was not signed until July 6, 2004.  Freeman lodged no objection to the accounting during this two-month period.  Because Freeman failed to raise any objections prior to the master’s issuance of a final order, the issues regarding notice are not preserved for our review.[2]  See In re Beard, 359 S.C. 351, 361, 597 S.E.2d 835, 840 (Ct. App. 2004) (finding issue not raised prior to trial court’s final order was not preserved for review).

II.  Commissions

Freeman contends the master erred in holding that the commissions due on the sale of the lots under the agreement were limited to the funds actually received by Reidville as opposed to the sales price of the lots sold.  Specifically, Freeman contends he is due commissions on the lots sold even where the money was not collected, and from the sale of the Runion Tract.  We disagree.

The agreement sets out the commission to be paid Freeman in the following terms: 

(a) Property Development:  Development of the property shall be under the direction of William E. Freeman.  He will be paid a 10% commission on the sale of all lots as a development and management fee.  This development and management agreement, separately written, shall run for an initial period of five (5) years with renewal to be by mutual consent. 

(Emphasis added).

Partnership agreements are construed pursuant to the rules of contract interpretation.[3]  See, Kuznik v. Bees Ferry Associates, 342 S.C. 579, 538 S.E.2d 15 (Ct. App. 2000).  The cardinal rule of contract interpretation is to ascertain and give legal effect to the parties’ intentions as determined by the contract language.  United Dominion Realty Trust, Inc. v. Wal-Mart Stores, Inc., 307 S.C. 102, 105, 413 S.E.2d 866, 868 (Ct. App. 1992).  When a contract is unambiguous a court must construe its provisions according to the terms the parties used, as understood in their plain, ordinary, and popular sense.  C.A.N. Enters., Inc. v. S.C. Health & Human Servs. Fin. Comm’n, 296 S.C. 373, 377, 373 S.E.2d 584, 586 (1988).

As for the sale of the Runion tract, the partnership agreement unambiguously provided for commissions based on the sale of lots only.  The Runion Tract was a single, two hundred twenty-five acre tract of land, which had not been developed and only partially divided.  This sale was forced in order to avoid a foreclosure, and resulted in a loss to Reidville.  Additionally, the Runion tract was sold as a single parcel by Reidville, not subdivided and sold as part of the Abner Creek development.  Therefore, the sale of the Runion Tract does not fit the definition of a lot as contemplated in the parties’ agreement.  Accordingly, the master did not err in failing to award Freeman a commission from the sale of the Runion Tract.    

Freeman claims he is owed additional commissions on the dollar amounts of the sale, regardless of what was eventually collected by Reidville.  We disagree.  As the evidence showed, Freeman, by agreeing to allow purchasers to give subordinate second mortgages, collected very little money on the sale of many lots.  Freeman should not be allowed commissions on money never received by Reidville.  The agreement contemplated commissions based on the sale of lots, clearly envisioning commissions based on the receipt of money.  Accordingly, the master did not err in limiting Freeman’s commissions to a percentage of money actually received.

III.  Amended Complaint

Finally, Freeman contends the master erred in granting the Respondents’ motion to amend their complaint to allow a claim for equitable subrogation.  We disagree. 

The motion to amend was made July 3, 2003, and the hearing was held July 17 and 18, 2003.   The amended complaint added a claim for equitable subrogation which related to the loan and interest payments Freeman failed to make beginning in 1999 and also to the balance of the loan which Respondents were forced to pay, even though Freeman was an equal guarantor. 

Rule 15, SCRCP, provides the complaint may only be amended by leave of the court and “leave to amend shall be freely given when justice requires and does not prejudice any other party.”  A motion to amend is within the sound discretion of the court, and the opposing party has the burden of establishing prejudice.  Foggie v. CSX Transp., Inc., 315 S.C. 17, 22, 431 S.E.2d 587, 590 (1993).  The only time such an amendment should not be granted is when granting it would prejudice the other party, and the prejudice envisioned is the lack of notice an issue is going to be tried and a lack of opportunity to refute it.  Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 286, 607 S.E.2d 711, 716 (Ct. App. 2005). 

By Freeman’s own admission, he knew equitable subrogation would be an issue prior to trial; in fact he had been examined in prior depositions on this very issue.  Freeman also acknowledged he knew Respondents were pursuing the loan payments.  The master was advised Freeman had been asked about those payments at his deposition prior to the trial.  Freeman had the opportunity to question witnesses about the issue after the motion to amend had been filed.  The master stated at the beginning of the hearing that the issue would be revisited, thus clearly putting Freeman on notice the issue may be tried.  Accordingly, Freeman suffered no prejudice in allowing Respondents to amend their complaint, and the master did not abuse his discretion in allowing the amendment. 

CONCLUSION

Based on the foregoing, the master’s order is hereby

AFFIRMED.

HEARN, C.J., and KITTREDGE, J., and CURETON, A.J., concur.


[1]  Reidville owned the 225 acre Runion Tract independent of the property being developed as Abner Creek.  The sale of the Runion Tract resulted in a $100,000 loss to Reidville.

[2]  Due to our disposition of the primary issue in this matter, we need not address Freeman’s argument that the master erred in awarding damages based on a flawed accounting.  See Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (stating the appellate court need not address remaining issues when resolution of a prior issue is dispositive).

[3] While Reidville was converted from a partnership to an LLC, the commissions were still governed by the former partnership agreement.