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2008-UP-055 - Romero v. White
THE STATE OF SOUTH CAROLINA

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

Mehujael Romero, Respondent,

v.

Sylvester White and Christina White, Defendants,

Of Whom Sylvester White is the Appellant.


Appeal From Beaufort County

  Curtis L. Coltrane, Master-in-Equity


Unpublished Opinion No. 2008-UP-055

Heard December 11, 1007 – Filed January 14, 2008


REVERSED


Douglas W. MacNeille, of Hilton Head Island, for Appellant.

Terry L. Finger, of Hilton Head Island, for Respondent.

PER CURIAM:  Sylvester White appeals the master-in-equity’s order granting specific performance to Mehujael Romero for the conveyance of a parcel of land located in Hilton Head Island, South Carolina.[1]  We reverse.

FACTS AND PROCEDURAL HISTORY

In 1995, White and his wife acquired a one acre parcel of land designated as 70 Gum Tree Road (Gum Tree Lot), Hilton Head Island, South Carolina from White’s father.[2]  White never lived on the property, but stated his intention was for his children to inherit the property.  The surrounding land is still owned by members of White’s family. 

White first met Armando Garcia Uriostegi (Garcia), sometime in 1996 or 1997, when Garcia began renting a house next door to White’s.  According to White, shortly after meeting Garcia, the two discussed placing a trailer on the Gum Tree Lot.  Eventually, Garcia moved a trailer onto a quarter portion of the Gum Tree Lot.[3] 

Shortly after Garcia and his family moved onto the lot, White prepared a lease agreement[4] in which Garcia agreed to pay rent of $200 a month during a two year lease which commenced on September 3, 1999. According to White, the two had an informal agreement to extend the lease until 2004 because Garcia was about to be incarcerated and wanted to make sure his family had a place to live.  Consequently, White stated he accepted a total of $15,000 from Garcia for rent throughout the extended tenancy.  White also stated that at Garcia’s request he provided Garcia with a receipt for the total amount of rent paid.  The writing White contends is the receipt states, “[White] on 10/10/00 received 15,000 from Garcia for payment for lot on Gum Tree R[oa]d.”[5]  However, Romero contends the same document is a receipt for the sale of the Gum Tree Lot.[6] 

Romero brought suit seeking to enforce the alleged contract to convey real estate and specific performance for the conveyance of the Gum Tree Lot.  The assistance of a translator was required at trial since Romero does not speak English.  During the trial, Romero testified that at the time of the alleged oral agreement for the purchase of the Gum Tree Lot, she was present on the property but was not walking the property with Garcia and White when they set the boundary lines.  Due to this separation, Romero could not testify as to the size of the lot or the boundary lines.  Romero also testified her husband paid White $15,000 for the property and she knew this because “before [she and her husband paid] rent and then when they did the deal, that is when her husband told her he bought the property.” Upon this answer, defense counsel objected on the grounds of hearsay and the master struck Romero’s response insofar as the information told to Romero by her husband.

After the bench trial concluded, the master ordered White to convey Romero the entire Gum Tree Lot.  Specifically, the master found the existence of an oral agreement for the sale of real estate and the writing indicating White’s receipt of $15,000 was sufficient to satisfy the Statute of Frauds, and, if not, there was sufficient part performance to remove the claim from the Statute of Frauds. This appeal followed. 

STANDARD OF REVIEW

In an action in equity tried by the judge alone, on appeal the appellate court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence.  Grosshuesch v. Cramer, 367 S.C. 1, 4, 623 S.E.2d 833, 834 (2005); Campbell v. Carr, 361 S.C. 258, 263, 603 S.E.2d 625, 627 (Ct. App. 2004).  Thus, an appellate court in an appeal of an equity case tried without a jury may find facts in accord with its view of the preponderance or greater weight of the evidence and may reverse a factual finding by the trial judge in such cases where the appellant satisfies this court that the finding is against the preponderance of the evidence.  Campbell, 361 S.C. at 263, 603 S.E.2d at 627.  This broad scope of review does not require the appellate court to disregard the findings of the trial court. Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).  Nor is the appellate court required to ignore the fact that the trial judge, who saw and heard the witnesses, is in a better position to evaluate their credibility.  Ingram v. Kasey’s Assocs., 340 S.C. 98, 105, 531 S.E.2d 287, 291 (2000).

LAW/ANALYSIS

I. Statute of Frauds

White argues the Statute of Frauds bars the enforcement of the alleged oral agreement. Specifically, White contends no sufficient writing exists memorializing the alleged oral agreement.  We agree. 

The Statute of Frauds requires that a contract for the sale of land must be in writing and signed by the party against whom enforcement is sought.  S.C. Code Ann. §32-3-10(4) (2006).  Failure to put such a contract in writing renders it void.  Player v. Chandler, 299 S.C. 101, 105, 382 S.E.2d 891, 894 (1989).  A writing sufficient to remove an oral agreement from the Statute of Frauds “must reasonably identify the subject matter of the contract, sufficiently indicate a contract has been made between the parties, and state with reasonable certainty the essential terms of the agreement.” Id. (citing Restatement (Second) of Contracts, § 131 (1981)).  Every essential element must be expressed in the writing for the contract to meet the Statute of Frauds. Cash v. Maddox, 265 S.C. 480, 484, 220 S.E.2d 121, 122 (1975). 

The Statute of Frauds does not require any particular form of writing however, the writings must establish the essential terms of the contract without resort to parol evidence.  Id.  The identification of the land to be sold is one of the essential terms of a contract for sale of real property.  Id.  Although parol evidence may be used to explain terms appearing in a description of land, “the description itself must clearly identify the particular parcel of land.” Id.  If a description of the land does not include the location or boundaries, it is inadequate. Fici v. Koon, 372 S.C. 341, 346-47, 642 S.E.2d 602, 604-605 (2007). “Where there is no adequate description of which part of a parcel is to be conveyed, the conveyance is unenforceable.” Id. at 347, 642 S.E.2d at 605.

In Fici Buyer brought an action for specific performance of a contract for the sale of thirty acres of land.  The contract lists the property to be sold as “‘lot 2, Polock Road, tax map #052000102’ in Irmo, Richland County,” but this description refers to the entire fifty acre parcel owned by Sellers. Id.  at 343, 642 S.E.2d at 603.  The contract specifies that the property conveyed will have “at least thirty acres” and “purchaser and seller will agree on location of property lines” but Buyer and Sellers never agreed on the dimensions or location of the thirty acres among the entire fifty acre parcel.[7] Id.  The South Carolina Supreme Court found the description did not show with reasonable certainty which thirty acres of the entire fifty acre parcel was to be conveyed.  Instead the supreme court found the contract was “nothing more than an agreement to agree which is unenforceable under the Statute of Frauds.” Id. at 347, 642 S.E.2d at 605. 

In regard to the necessary burden of proving an oral contract the supreme court has said, “[w]e are not concerned primarily with the quantity of the evidence offered to establish the oral contract,…[r]ather we are concerned more with the quality of the evidence.” Parr v. Parr, 268 S.C. 58, 65, 231 S.E.2d 695, 698 (1977).  Clear, specific, definite evidence must convincingly prove the existence of the contract. Id.  Romero must “establish the contract by ‘competent and satisfactory proof, such as is clear, definite, and certain.’” Cash v. Maddox, 265 S.C. 480, 484, 220 S.E.2d 121, 122 (1975) (citing Aust v. Beard, 230 S.C. 515, 521, 96 S.E.2d 558, 561 (1957)).

In the case sub judice, the writing Romero relies upon to enforce the alleged oral agreement to convey real property is insufficient.  Although it is signed by White, the writing is unclear as to whether White intended to sell or rent the Gum Tree Lot to Garcia.  The master found White’s testimony on the matter lacked credibility because White pled guilty to possession of cocaine, a crime of moral turpitude.  Even if White’s testimony was discounted, we are still left with a nebulous writing which fails to specify whether it is referring to the entire Gum Tree Lot or only the one quarter portion Garcia rented in the past.  The writing also fails to identify the boundaries or state the size of the Gum Tree Lot.  Accordingly, we find there is no sufficient writing that satisfies the requirements of the Statute of Frauds. 

II. Existence of an Oral Agreement and
Part Performance Exception to the Statute of Frauds

White argues the master erred in concluding the part performance exception to the Statute of Frauds was satisfied.  White maintains the only evidence of an oral agreement is Romero’s inadmissible hearsay statement.   We agree.

In order for part performance of an oral agreement to remove the agreement from the Statute of Frauds and permit specific performance, Romero must establish acts that relate clearly to the agreement, exclusive of any other relation between the parties touching the agreement. Player v. Chandler, 299 S.C. 101, 105-106, 382 S.E.2d 891, 894 (1989).  “Part performance may be proved by evidence of the following: (1) improvements to the real estate; (2) possession of the real estate; (3) payment of the purchase price.” Bradshaw v. Ewing, 297 S.C. 242, 245, 376 S.E.2d 264, 266 (1989).  For improvements to constitute part performance, they must be made by the purchaser with his own means upon the faith of the seller’s promise. Id. at 246, 376 S.E.2d at 266.  Such improvements must also be permanent and “of such a character as to enhance substantially the value of the property.” Id. at 246, 376 S.E.2d at 267. Payment of the purchase price is the weakest evidence of part performance and is not sufficient on its own to remove a contract from the Statute of Frauds. Id. 

Romero was not able to establish acts clearly relating to the alleged agreement for sale of the property that did not involve the parties’ prior rental agreement.  Much of Romero’s testimony regarding the terms of the oral contract was found to be hearsay because she was not present when the terms of any oral contract were being discussed.  Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Rule 801(c), SCRE.  Hearsay is generally inadmissible. Rule 802, SCRE. 

Romero testified she was present on the property, but “she was not walking with them” as the alleged contract was discussed between White and Garcia. In addition, Romero does not speak or understand English whereas White and Garcia discussed the alleged oral contract in English. Romero also testified Garcia purchased the property from White because “before they [paid] rent and then when they did the deal that is when her husband told her he bought the property.” White objected to this statement and the master struck the hearsay testimony “insofar as what her husband said.” 

Besides Romero’s stricken testimony, the record is devoid of any other evidence establishing a clear, unequivocal agreement for the sale of the Gum Tree Lot.  Romero also failed to provide evidence of part performance.  The only evidence of a permanent improvement to the Gum Tree Lot is the installation of a septic tank, initiated by White.  Neither Romero nor Garcia made any improvement to any portion of the Gum Tree Lot.  As to possession of the real property, Romero testified she and her family only rented a quarter of the lot prior to the alleged oral agreement for the sale of the land. Neither Romero nor Garcia paid property taxes for the Gum Tree Lot. Romero also testified the receipt was for the purchase of the Gum Tree Lot, but White testified it was for rental payments on a quarter portion of the lot. Even if we assume the $15,000 was for the purchase of the Gum Tree Lot, payment alone is not sufficient to remove the oral contract form the Statute of Frauds. Bradshaw, 297 S.C. at 245, 376 S.E.2d at 266. Instead, there would need to be some other evidence exclusive of any prior lessor/lessee relationship between the parties. Player, 299 S.C. at 105-106, 382 S.E.2d at 894.     

We find Romero failed to establish any clear, definite, and convincing evidence regarding the existence of an oral agreement between the parties.  In the absence of an oral agreement and without evidence upon which part performance could be found to support[8] a grant of specific performance, we must find the part performance exception to the Statute of Frauds does not apply.

Because we find no oral agreement, we need not address White’s remaining argument.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

CONCLUSION

For the foregoing reasons, we find there is not an oral agreement to purchase the Gum Tree Lot.  Accordingly the decision of the master is

REVERSED.

HEARN, C.J., KITTREDGE and THOMAS, JJ., concur.


[1] The answer filed in this action purports to be filed on behalf of Sylvester White and his wife, Christina.  However, Christina White was adjudged to be in default.  The two separated sometime in 1999. 

[2] White’s deposition was taken de bene esse for use at trial pursuant to Rule 30, SCRCP.  At the time of the deposition, White was incarcerated for cocaine related charges to which he had pled guilty.  The master found White’s testimony lacked credibility because White pled guilty to possession of cocaine, a crime of moral turpitude. 

[3] White stated he planned on dividing the one acre lot into four parcels as rentals. 

[4] The lease refers to Lot One, not a quarter portion of the Gum Tree Lot.  Garcia and Mehujael Romero, his wife, lived on the Gum Tree Lot until Garcia was incarcerated, and then Romero remained on the property with their children.

[5] According to White, this receipt was for late and future rent for the quarter of the Gum Tree Lot on which the trailer was located.

[6] Garcia signed over all of his interests in his property to Romero. 

[7] A surveyor drew up two versions of a plat denoting the proposed property lines of the thirty acres.  Buyer signed the second plat but Sellers never agreed to the property lines on either plat.

[8] For a court of equity to compel specific performance of an oral agreement where part performance is alleged to have removed the contract from the Statute of Frauds, the court “must find: (1) clear evidence of an oral agreement; (2) the agreement had been partially executed; and (3) the party who requested performance had completed or was willing to complete his part of the oral agreement.” Settlemeyer v. McCluney, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (Ct. App. 2004).