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2008-UP-212 - Gustilo v. Tang

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


Ester M. Gustilo and Joeprim G. Gustilo, Respondents,

v.

Nhin Thi Tang, and Tang Oriental Supermarket, Inc., Appellants.


Appeal From Charleston County
 Mikell R. Scarborough, Master-In-Equity


Unpublished Opinion No. 2008-UP-212
Submitted April 1, 2008 – Filed April 4, 2008


AFFIRMED


George Hamlin O’Kelley, III, of Mt. Pleasant and William Lloyd Taylor, of Kiawah Island, for Appellants.

Philip A. Middleton, of Charleston, for Respondents.

PER CURIAM:  Nhin Thi Tang and Tang Oriental Supermarket, Inc. (collectively Tang) appeal the master-in-equity’s order granting judgment for Ester and Joeprim Gustilo (the Gustilos).  We affirm[1]

FACTS

On April 6, 2000, the Gustilos entered into a contract to purchase Tang Oriental Supermarket (the Supermarket) from Tang for $250,000.  The purchase and sale agreement stated in paragraph 8.4 titled “Amendment” that “This agreement may be amended only by a written instrument executed by the party or parties to be bound thereby.”  Subsequently, the Gustilos made a $40,000 down payment using Mrs. Gustilo’s credit card.  The Gustilos paid Tang $25,000 toward the purchase price in March of 2000.  The Gustilos paid $15,000 more in April which was placed in an escrow account.  Mrs. Gustilo testified she and her husband mortgaged two pieces of property valued at $210,000 in total, one located in Berkeley County and one in Charleston County, to Tang as collateral.  The parties stipulated the Gustilos paid Tang $83,046.95 pursuant to the April 2000 contract.

Running the Supermarket proved unsuccessful, and the Gustilos fell behind in rent payments.  In January 2001, the Gustilos allegedly entered into a new contract with Tang pursuant to which Tang would extinguish the Gustilos’ outstanding mortgages if the Gustilos allowed Tang to repossess the Supermarket.  The Gustilos moved out of the Supermarket and returned the keys to Tang.  However, Tang later refused to release the Gustilos’ collateral, and the Gustilos’ property in Berkeley County was foreclosed.  Tang negotiated with Tony Mallari (Mallari) to purchase the store, and once she repossessed the Supermarket, Tang planned to immediately sell it to Mallari.  However, the sale to Mallari fell through.  The Gustilos testified they never knew about the potential buyer Tang lined up until they returned possession of the Supermarket to her.

The Gustilos brought suit against Tang for breach of contract, breach of contract accompanied by a fraudulent act, fraud and deceit, slander of title, conversion, and equitable satisfaction of mortgage.  Tang answered and counterclaimed alleging breach of contract and mortgage foreclosure.  After dismissing most causes of action, the trial court found specific performance was due under an oral agreement because the Gustilos completely performed their part of the bargain and voluntarily turned possession of the Supermarket over to Tang.  The trial court further found Tang’s inability to resell the premises to Mallari did not alter the terms of the new contract with the Gustilos.  Based on these conclusions, the trial court determined the Gustilos were entitled to an order directing the Register Mesne Conveyance (RMC) Office for the County of Charleston to mark as paid in full and satisfied the mortgage on the Charleston County property which the Gustilos still owned.  The trial court found in favor of the Gustilos for their breach of contract and equitable satisfaction of their mortgage.  However, the trial court found they failed to establish any monetary damage as a result of the breach.  The trial court denied Tang’s claims for breach of contract and foreclosure of mortgage.  This appeal followed.

STANDARD OF REVIEW

An action for specific performance is one in equity.  Campbell v. Carr, 361 S.C. 258, 262, 603 S.E.2d 625, 627 (Ct. App. 2004).  Our scope of review of a case heard by a master who enters a final judgment is to determine facts in accordance with our own view of the preponderance of the evidence.  See Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989).  Thus, the appellate court may reverse a factual finding by the trial judge in such cases when the appellant persuades the appellate court that the trial judge’s finding is against the preponderance of the evidence.  Campbell, 361 S.C. at 263, 603 S.E.2d at 627.  Pursuant to Rule 220(b), SCACR, when an appellate court chooses to find facts in accordance with its own view of the evidence, the court must state distinctly its findings of fact and the reason for its decision.  Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).

LAW/ANALYSIS

I.  Error in Granting Directed Verdict

A.  Partial performance of an oral agreement

Tang argues the trial court erred in granting the Gustilos’ motion for directed verdict based on the Statute of Frauds because the Gustilos failed to meet their burden of introducing clear and convincing evidence the oral agreement had been partly performed.  We find this issue is not preserved for our review.

It is unclear whether this issue was actually raised at the trial level because the record Tang provided on appeal does not include portions of the trial transcript where Tang allegedly moved for a directed verdict.  Ordinarily, no point will be considered which does not appear in the record on appeal.  See Rule 210(h), SCACR.  Further, the appellant has the burden of presenting a sufficient record to allow review.  See, e.g., Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339-40, 611 S.E.2d 485, 487-88 (2005); Bridwell v. Bridwell, 279 S.C. 111, 113, 302 S.E.2d 856, 858 (1983); State v. Carlson, 363 S.C. 586, 608, 611 S.E.2d 283, 294 (Ct. App. 2005); Hundley ex rel. Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 306-07, 529 S.E.2d 45, 57 (Ct. App. 2000).  Therefore, due to the inadequacy of the record presented, whether the trial court erred in deciding Tang’s directed verdict motion is not preserved for our review.  However, even if we were to reach the merits, this issue is unavailing to Tang.

When reviewing a trial court’s ruling on a directed verdict, this court will reverse the ruling only when no evidence supports the ruling or the ruling is controlled by an error of law.  Pye v. Estate of Fox, 369 S.C. 555, 569, 633 S.E.2d 505, 512 (2006); McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006).  On review, the appellate court must determine whether a verdict for the party opposing the motion would be reasonably possible under the facts as liberally construed in his or her favor.  Ericson v. Jones St. Publishers, L.L.C., 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006). 

Under the Statute of Frauds, certain contracts must be reduced to writing in order to be enforced.  See S.C. Code Ann. § 32-3-10 (2007).  In pertinent part, section 32-3-10 (4) (2007) bars actions which:

[C]harge any person upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them . . . . Unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.

However, South Carolina courts recognize several exceptions to the Statute of Frauds writing requirement, including partial or complete performance. See, e.g., Stackhouse v. Cook, 271 S.C. 518, 521, 248 S.E.2d 482, 483 (1978); Scurry v. Edwards, 232 S.C. 53, 60-61, 100 S.E.2d 812, 816 (1957); Settlemeyer v. McCluney, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (Ct. App. 2004).  Where sufficient partial performance has occurred, courts of equity can enforce specific performance of an oral agreement for a land sale purchase, despite the Statute of Frauds.  Scurry, 232 S.C. at 60-61, 100 S.E.2d at 816; Gibson v. Hrysikos, 293 S.C. 8, 13, 358 S.E.2d 173, 175-76 (Ct. App. 1987).  To do so, “a court of equity 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, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (citing Gibson, 293 S.C. at 13-14, 358 S.E.2d at 176).

In the present case, the trial court found the Gustilos credible in their testimony regarding the new contract which was entered into and consummated in early January 2001.  Specifically, the Gustilos testified Tang offered to satisfy their outstanding mortgages if the Gustilos would allow her to repossess the Supermarket.  The trial court stated, “The Gustilos testimony is quite clear on this point.  I conclude there is sufficient evidence by virtue of the somewhat ceremonious way in which the Gustilos returned the key to Mrs. Tang in January of 2001.”  Therefore, based on the Gustilos’ testimony and actions, we find clear and convincing evidence proves a new contract existed between the parties, thereby satisfying the first prong of Settlemeyer.  359 S.C. at 320, 596 S.E.2d at 516. 

Additionally, the Gustilos relinquished management and ownership of the Supermarket by returning the keys to Tang.  Such action amounts to partial execution of the new agreement between Tang and the Gustilos, thereby satisfying the second prong of Settlemeyer.  Id.  Finally, the preponderance of the evidence indicates Tang, as the party who requested performance, was willing to comply with her obligations under the new agreement when she initially negotiated with the Gustilos to regain ownership of the Supermarket.  Though negotiations with Mallari ultimately fell through, Tang initially was willing to satisfy the outstanding mortgages on the Gustilos’ two properties.  Furthermore, the Gustilos had no knowledge of Tang’s negotiations with Mallari.  Therefore, we find Tang’s inclination enough to satisfy the third prong under SettlemeyerId. 

We affirm the trial court’s order finding sufficient partial performance occurred between the parties because the Gustilos established the elements of Settlemeyer.  Based on the finding of partial performance, the trial court could enforce specific performance of the oral agreement for the resale of the Supermarket, despite the Statute of Frauds. 

B.  Parol Evidence Rule

Tang contends the trial court erred in finding the parties amended their purchase and sale agreement by a subsequent oral agreement after admitting parol evidence.  Specifically, Tang argues the parol evidence rule bars any testimony contradicting the express, unambiguous terms of the written agreements between the parties.  We disagree.[2] 

“The parol evidence rule prevents the introduction of extrinsic evidence of agreements or understandings contemporaneous with or prior to execution of a written instrument when the extrinsic evidence is to be used to contradict, vary, or explain the written instrument.”  Redwend Ltd. P’ship v. Edwards, 354 S.C. 459, 471, 581 S.E.2d 496, 502-03 (Ct. App. 2003) (citing Estate of Holden v. Holden, 343 S.C. 267, 539 S.E.2d 703 (2000) and Crafton v. Brown, 346 S.C. 347, 550 S.E.2d 904 (Ct. App. 2001)).  However, “[it] is axiomatic that there exists a well established exception to the parol evidence rule which allows extrinsic evidence by the party attacking an instrument on the ground of fraud.”  Redwend, 354 S.C. at 471, 581 S.E.2d at 503 (citing Bradley v. Hullander, 272 S.C. 6, 249 S.E.2d 486 (1978) and Allen-Parker Co. v. Lollis, 257 S.C. 266, 185 S.E.2d 739 (1971)). 

In the present case, the trial court granted Tang a directed verdict on the Gustilos’ claims for fraud and deceit and for breach of contract accompanied by fraudulent act.  Therefore, based on the trial court finding no fraud occurred between the parties, Tang contends certain parol evidence is inadmissible.  However, because the trial court found the parties entered into a new oral agreement, the trial court allowed parol evidence. See, e.g., Smith v. McClam, 289 S.C. 452, 457, 346 S.E.2d 720, 724 (1986) (citing Midland Timber Co. v. Furman, 111 S.C. 287, 97 S.E. 831 (1919) and Williston On Contracts, 3rd Ed., § 636) (“A well recognized exception is that parol evidence may be admitted to show a separate and independent agreement, which is not inconsistent with the terms of a contemporaneous or subsequent written agreement, if it can be inferred that the parties did not intend the written paper to be a complete integration of the agreement.”); Nat’l Loan & Exch. Bank v. Tolbert, 129 S.C. 503, 512, 124 S.E. 772, 775 (1924) (internal citation omitted) (“[T]he parol evidence does not in any way deny that the original agreement of the parties was that which the writing purports to express, but merely goes to show that the parties have exercised their right to change or abrogate the same, or to make a new and independent contract . . . . All distinct and separate transactions may therefore be established and availed of whenever they are themselves valid. Now, a transaction subsequent in time must always be a separate transaction.”).  Based on the trial court’s finding Tang and the Gustilos entered into a new contract, admission of parol evidence was not in error.  Accordingly, we affirm the trial court’s decision to admit such testimony though it may contradict express terms of a prior written agreement between the parties.  

C.  Part performance as an affirmative defense

Next, Tang argues the Gustilos should have been precluded from arguing part performance as an affirmative defense to her claims against them.  We disagree.   

South Carolina case law requires parties to clearly and definitely plead certain affirmative defenses, including part performance.  See Rule 8(c), SCRCP, (“In pleading to a preceding pleading, a party shall set forth affirmatively the defenses: . . . statute of frauds, . . . waiver, and any other matter constituting an avoidance or affirmative defense.”); Hill v. Watford, 276 S.C. 344, 345, 278 S.E.2d 347, 348 (1981) (“[P]art performance was clearly and definitely pled, as our case law requires.”); McMillan v. King, 193 S.C. 14, 23, 7 S.E.2d 521, 526 (1940) (“[T]he claim of part performance thereof, should each be alleged at least with definiteness and clarity when the sufficiency of the complaint is tested by demurrer.”).  However, our rules of civil procedure also require this court to construe all pleadings so as “to do substantial justice to all parties.”  Rule 8(f), SCRCP; see also Loftis v. Eck, 288 S.C. 154, 156, 341 S.E.2d 641, 642 (Ct. App. 1986) (“[P]leadings in both law and equity should be liberally construed to do substantial justice.”).

In their complaint, the Gustilos allege the parties agreed Tang would take the Supermarket back and release the security and collateral the Gustilos pledged at the time they purchased the store.  The Gustilos further allege they allowed Tang, in reliance on the agreement and in the course of dealings between the parties, to retake possession of the Supermarket.  After honoring their duties under the new agreement, the Gustilos argue Tang refused to honor her responsibility under the agreement to release the Gustilos’ real  property and collateral.  In her answer to the Gustilos’ complaint, Tang counterclaimed, alleging breach of contract and mortgage foreclosure.  In defense of these counterclaims, the Gustilos replied and realleged the facts set forth in their complaint.

Based on the above cited South Carolina jurisprudence, we liberally construe the Gustilos’ allegations and find they sufficiently pled part performance.  Specifically, the Gustilos’ allegation stating:  “Thereafter, the [Gustilos] allowed Tang, in reliance on the agreement and course of dealing between the parites, to retake possession of the store,” is enough to amount to affirmatively raising part performance as a defense.  Accordingly, we find the trial court did not err in allowing the Gustilos to raise this issue at trial over Tang’s objection. 

II. Failure to Establish Monetary Damages

In her next assertion to our court, Tang argues the trial court erred in granting the Gustilos a judgment because they failed to establish any monetary damage as a result of the alleged breach of contract.  This issue is not preserved for our review. 

Tang failed to make a motion pursuant to Rule 59(e), SCRCP, alerting the trial court to this issue.  Therefore, this issue was not raised to or ruled upon by the trial court.  If Tang did make a Rule 59(e) motion to the trial court, it does not appear in the record on appeal, and this argument still fails because Tang, as appellant, has the burden of producing a complete record.  See, e.g., Helms Realty, 363 S.C. at 339-40, 611 S.E.2d at 487-88; Bridwell, 279 S.C. at 113, 302 S.E.2d at 858 (1983); Carlson, 363 S.C. at 608, 611 S.E.2d at 294; Hundley, 339 S.C. at 306-07, 529 S.E.2d at 57.

“An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004).  “It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court.”  Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004).

The purpose of a Rule 59(e) motion is to request for the trial judge to reconsider matters properly encompassed in a decision on the merits.  Collins Music Co., Inc. v. IGT, 353 S.C. 559, 562, 579 S.E.2d 524, 525 (Ct. App. 2002).  Regarding Rule 59(e) motions, the South Carolina Supreme Court stated: 

A party may wish to file such a motion when she believes the court has misunderstood, failed to fully consider, or perhaps failed to rule on an argument or issue, and the party wishes for the court to reconsider or rule on it. A party must file such a motion when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review. . . . South Carolina appellate courts do not recognize the “plain error rule,” under which a court in certain circumstances is allowed to consider and rectify an error not raised below by the party.  

Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (internal citations omitted).

Recently, in Pye v. Estate of Fox, the South Carolina Supreme Court identified two ways to preserve an issue for appeal as either: “a ruling by the trial [court] or a post-trial motion.”  369 S.C. 555, 566, 633 S.E.2d 505, 511 (2006).  The Pye court held an issue was preserved for review when Pye raised such issue to the trial court in a summary judgment motion and later in a Rule 59(e) motion.  369 S.C. at 565, 633 S.E.2d at 510.  Though the trial court never ruled on the issue the motions raised, the Pye court found the issue was preserved by stating, “[A]n exception to this rule exists where an issue is raised but not ruled upon at a Rule 59(e) hearing.”  Id.  In its holding the court noted lawyers cannot force trial courts to address an issue, but “a properly requested ruling under Rule 59 is sufficient without a specific judicial decision on the matter.”  Id. at 566, 633 S.E.2d at 511.     

In the case sub judice, Tang protests the trial court’s order granting a judgment to the Gustilos.  However, in order to properly preserve such an issue for appeal, Tang must raise the issue to the trial court through a Rule 59(e) motion, giving the court an opportunity to address problematic rulings and issue a final ruling.  See Pye, 369 S.C. at 565, 633 S.E.2d at 510; Elam, 361 S.C. at 24, 602 S.E.2d at 780; Collins, 353 S.C. at 562, 579 S.E.2d at 525.  Instead, Tang directly appealed the trial court’s order granting judgment for the Gustilos.  We find this issue is not preserved for our review because Tang never raised it at the trial level. 

This issue fails on the merits as well.  To recover for a breach of contract, the plaintiff must prove:  (1) a binding contract entered into by the parties; (2) a breach or unjustifiable failure to perform the contract; and (3) damage suffered by the plaintiff as a direct and proximate result of the breach. See Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 89, 124 S.E.2d 602, 610 (1962) (“This being an action for the breach of contract, the burden was upon the respondent to prove the contract, its breach, and the damages caused by such breach.).  In a breach of contract action, the measure of damages is the loss actually suffered by the plaintiff as a result of the breach.  Collins Holding Corp. v. Landrum, 360 S.C. 346, 350, 601 S.E.2d 332, 333 (2004); Minter v. GOCT, Inc., 322 S.C. 525, 528, 473 S.E.2d 67, 70 (Ct. App. 1996).  “The purpose of an award of damages for breach of contract is to put the plaintiff in as good a position as he would have been in if the contract had been performed.”  Minter, 322 S.C. at 528, 473 S.E.2d at 70.

Tang argues the trial court erred in granting the Gustilos a judgment because they failed to establish monetary damages.  The trial court made such a finding and in its order by stating, “It is further ordered that the Plaintiff has failed to establish any monetary damage as a result of contract.”  However, we find the Gustilos incurred damages, though not completely monetary in nature, as result of Tang’s breach.  Specifically, the Gustilos incurred damages in the form of previous mortgage debt and damaged credit.  Furthermore, in finding for the Gustilos on their breach of contract cause of action, the trial court ordered the “Register Mesne Conveyance for the County of Charleston . . . to mark the mortgage of Joeprim G. Gustilo and Ester M Gustilo to Tang Oriental Supermarket . . . paid in full and satisfied.”

Therefore, we find the trial court properly found the Gustilos met their burden of proof by establishing damage suffered as a direct and proximate result of the breach.  Furthermore, we find South Carolina jurisprudence does not restrict damages solely to out-of-pocket expenses incurred by the breach.  Though contract damages ordinary consist of out of pocket expenses incurred by the breach and the gain above costs that would have been realized had the breach not occurred, we believe damages can exist in several forms, including debt or damaged credit.  But cf. S.C. Fed. Sav. Bank v. Thornton-Crosby Dev. Co., Inc., 303 S.C. 74, 77, 399 S.E.2d 8, 11 (Ct. App. 1990) (“In the normal case, the damage will consist of two distinct elements: (1) out-of-pocket costs actually incurred as a result of the contract; and (2) the gain above costs that would have been realized had the contract been performed.”) (emphasis added).  Accordingly, we affirm the ruling of the trial court. 

III. Error in Evidence Admission

Tang argues the trial court erred in admitting evidence of alleged misrepresentations by Tang based on the merger clause in the agreement between the parties.  We find Tang abandoned this issue on appeal.[3] 

An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.  In re Care and Treatment of McCracken, 346 S.C. 87, 93, 551 S.E.2d 235, 239 (2001).  In her Appellant’s Brief, Tang failed to cite any authority in support of her assertion the trial court erred in admitting certain misrepresentations into evidence.  Therefore, we find Tang abandoned this issue on appeal, and we decline to consider the argument. 

On the merits, this issue fails as well.  The merger clause in Tang’s agreement with Gustilos expressed there were no “representations made by either party relative to the subject matter hereof, which are not expressly set forth herein.”  Tang contends the trial court erred in allowing Mrs. Gustilo to testify regarding Tang’s representations of the Supermarket’s monthly gross revenue, which is contrary to the express terms of their agreement.

Admission of evidence is largely within the trial court’s discretion.  Fields v. Reg’l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 510 (2005); Gamble v. Int’l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996); Hofer v. St. Clair, 298 S.C. 503, 513, 381 S.E.2d 736, 742 (1989); Seabrook Island Prop. Owners’ Ass’n v. Berger, 365 S.C. 234, 242, 616 S.E.2d 431, 435 (Ct. App. 2005); R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 343 S.C. 424, 439, 540 S.E.2d 113, 121 (Ct. App. 2000).  Therefore, under our scope of review, we must determine whether the trial court abused its discretion.  Elledge v. Richland/Lexington Sch. Dist. Five, 352 S.C. 179, 185, 573 S.E.2d 789, 792 (2002); R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 343 S.C. at 439, 540 S.E.2d at 121.  The trial court’s decision will not be disturbed on appeal unless it is based on an error of law or a factual conclusion without evidentiary support. Whaley v. CSX Transp., Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005); Fields, 363 S.C. at 25-26, 609 S.E.2d at 509.  “For this Court to reverse a case based on the admission of evidence, both error and prejudice must be shown.” Seabrook Island Prop. Owners’ Ass’n, 365 S.C. at 242, 616 S.E.2d at 435; Stevens v. Allen, 336 S.C. 439, 448, 520 S.E.2d 625, 629 (Ct. App. 1999) (citing Timmons v. S.C. Tricentennial Comm’n, 254 S.C. 378, 175 S.E.2d 805 (1970)).

Assuming without deciding the trial court’s admission of the evidence was error, we affirm nevertheless because there was no resulting prejudice to Tang.  See Starkey v. Bell, 281 S.C. 308, 315-16, 315 S.E.2d 153, 157 (Ct. App. 1984) (“The admission of evidence is discretionary with the trial judge whose ruling will not be disturbed in the absence of an abuse thereof amounting to an error of law, and prejudice.”).  In the case sub judice, the trial court found the Gustilos, as plaintiffs, successfully met their burden and proved Tang breached their second contract.  Based on its decision to grant judgment in favor of the Gustilos, the trial court ordered the RMC to extinguish certain mortgages.  The trial court did not use the gross income figure in its calculation of damages, as there were no monetary damages established.  Rather, Mrs. Gustilo’s brief testimony recalled preliminary negotiations leading up to the first contract entered into by the parties.  Therefore, we affirm the trial court’s decision to allow such testimony into evidence because we fail to see how such testimony prejudiced Tang. 

IV. Equitable Satisfaction of the Mortgage

Finally, Tang argues the Gustilos were not entitled to equitable satisfaction of their mortgages because she did not sell the business to Mallari.  We find this issue was abandoned on appeal.

An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.  In re Care and Treatment of McCracken, 346 S.C. at 93, 551 S.E.2d at 239.  Tang failed to cite any authority in support of her assertion that the Gustilos were not entitled to equitable satisfaction of their mortgages.  Therefore, we find Tang abandoned this issue on appeal, and we decline to consider the argument. 

CONCLUSION

Based on the foregoing, the order of the trial court is

AFFIRMED.

ANDERSON, SHORT, and THOMAS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Though Tang fails to cite to her objection, Tang’s objection and the court’s ruling regarding Mrs. Gustilos’ testimony under the parol evidence rule appear on pages 69-72 and page 109 in the record on appeal. 

[3] Tang’s objection to this testimony appears on page 58 of the record on appeal.