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2009-UP-382 - Kuznik v. Dorman


In The Court of Appeals

Henry Kuznik, Respondent,


Jack Dorman, Appellant.

Appeal From Charleston County
 Thomas L. Hughston, Jr., Circuit Court Judge

Unpublished Opinion No. 2009-UP-382
Heard May 13, 2009 – Filed July 6, 2009


Thomas  Goldstein, of Charleston, for Appellant.

John M. Bleecker, of Charleston, for Respondent.

PER CURIAM: In this case involving a commercial lease,  Jack Dorman argues the trial court erred in granting Henry Kuznik a directed verdict on all of Dorman's counterclaims and in excluding Dorman's exhibits.  We affirm. 


Kuznik and Dorman entered into a commercial lease agreement for 2117 Savannah Highway (the Property) with a one-year term beginning on March 1, 1998.  The lease granted Dorman ten one-year renewal options.  The rent was initially $800 a month, but the lease provided for a cost of living increase each year.  Dorman operated a used car dealership on the Property.  At the time the parties entered into the lease, Dorman received possession of the building at the front of the lot.  At the back of the lot was a larger building that Kuznik rented to two other businesses.  Kuznik also used a portion of that building for storage. 

In May of 2000, the South Carolina Department of Transportation condemned the Property for construction on Savannah Highway.  Dorman and the other tenants vacated the Property.  Dorman, however, continued to pay Kuznik rent, which Kuznik deposited into his escrow account.  During the construction project, Dorman's building was completely destroyed and the other building was partially destroyed.  After the project ended, Kuznik repaired the larger building and used a portion of it for storage.  Dorman moved into the remaining part of the building and resumed his used car business in August of 2001.  In July of 2004, Kuznik moved his office into the space he had used as storage.  At this point, the parties' relationship quickly deteriorated.  Kuznik asserted that the original lease was terminated due to the condemnation proceeding and under the new, oral lease, Dorman owed $1,650 a month. 

On December 31, 2004, Kuznik gave Dorman a notice to quit the premises no later than February 1, 2005.  When Dorman failed to quit the premises, Kuznik brought this action seeking a writ of ejectment and a claim for rent due in the amount of $25,178.92.  Dorman answered and claimed the original lease was still controlling.  He also asserted counterclaims for breach of quiet enjoyment, civil conspiracy, interference with business relations, and trespass.  The case was tried before a jury.  At the close of the evidence, the trial court granted Kuznik a directed verdict on all of Dorman's counterclaims, finding Dorman had failed to present any evidence of damages.  The court submitted the remaining claims to the jury with special interrogatories.  The jury found that the parties had agreed to substitute the new or remodeled building for the old, now demolished, building in the lease; that the rent the parties agreed to was the amount in the original lease, and that Kuznik owed Dorman $500.00 for water.  The court denied Dorman's motion for a new trial.  This appeal followed.  


Dorman argues the trial court erred in granting Kuznik's directed verdict on all of his counterclaims.  We disagree.

The trial court granted Kuznik a directed verdict on all the counterclaims on the basis that Dorman had failed to establish any damages.  Although this was the court's only stated ground, Dorman's appellant's brief argument on the directed verdict issue focuses solely on Kuznik's alleged improper actions.  It does not address the court's ruling on damages or argue evidence of damages was presented other than to state:  "While it is impossible to prove a negative-such as identifying the customers who chose not to purchase an automobile-the record does establish sufficient evidence for a jury to conclude reasonably that Kuznik deliberately interfered in Dorman's business."  We find this sole statement is so conclusory as to consider the issue of damages abandoned.  See Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (finding party abandoned an issue on appeal due to failure to cite any supporting authority and making only conclusory arguments).  It is not until the reply brief that Dorman addresses the issue of damages.  However, an appellant may not raise a specific argument for the first time in his reply brief.  See Crawford v. Henderson, 356 S.C. 389, 409, 589 S.E.2d 204, 215 (Ct. App. 2003).  Similarly, Dorman's presentation of the issue of damages at oral argument was not sufficient to bring the issue properly before this court.  See Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477 (Ct. App. 1989) (stating an issue raised for the first time in oral argument or in the reply brief will not be considered by the appellate court). As Dorman failed to properly challenge the trial court's ruling on damages, the ruling is the law of the case.  See First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct. App. 1998) ("The unchallenged ruling, right or wrong, is the law of the case and requires affirmance.").

Accordingly, we affirm the trial court's granting of a directed verdict on Dorman's counterclaims.  As we affirm for the above stated reason, we need not address Dorman's remaining issue.