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2010-UP-226 - Williams v. SC Department of Transportation

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Larry Williams, Appellant,

v.

South Carolina Department of Transportation, Respondent.


Appeal From Horry County
 J. Stanton Cross, Jr., Master In Equity


Unpublished Opinion No. 2010-UP-226
Submitted February 1, 2010 – Filed April 1, 2010   


AFFIRMED


John P. Bacot, Jr., of Surfside Beach, for Appellant.

John B. McCutcheon, Jr., of Conway, for Respondent.

PER CURIAM:  Larry Williams (Williams) contends the trial court erred in denying his request for rescission of his contract with the South Carolina Department of Transportation (SCDOT) by refusing to set aside the conveyance of his property (the Property) to SCDOT.  We affirm.[1]

FACTS

Williams owned three tracts of real property: Tract 6A, Tract 6PCR, and Tract 7 adjacent to and at the corner of Road S-600 and Pine Island Road in Horry County.  Only Tract 7 is in dispute in this case.  Williams acquired Tract 7 between 1980 and 1982.  After acquiring Tract 7, Williams constructed a nine-unit commercial building for business rental use.

During the summer of 2000, SCDOT contacted Williams about acquiring 2,662 square feet along the front of the Property for a right-of-way expansion of the Robert M. Grissom Parkway.  Sometime between the summer and September 2000, settlement negotiations reached a stalemate between Williams and an eastern region right-of-way consultant.  On September 13, 2000, Deborah Rice (Rice), the eastern region right-of-way administrator for SCDOT and Rabih Hamzy (Hamzy), the assistant program manager with SCDOT, met with Williams to facilitate a settlement agreement.

According to Rice's testimony, Williams was concerned about the functionality of his commercial units' parking spaces after the proposed construction of the right-of-way.  Rice also testified Williams believed the property was worth more than the $162,620 SCDOT offered, and as a result, Williams made a counteroffer of $500,000.  Rice acknowledged the parking situation needed further review and asked Hamzy to come up with "something" that "perhaps could be done [about] the parking."

Hamzy enlisted Wilbur Smith Associates to produce planning sheets to show the possibility of parking on Tract 7.  Hamzy subsequently mailed Williams the plan sheets along with a transmittal letter dated September 20, 2000.  Hamzy's letter stated, "Dear Mr. Williams: Enclosed are the plans [sic] sheets you requested.  If you have any other questions, please call me at (803) 737-1616.  Sincerely, Rob Hamzy Program Manager."

On September 28, 2000, Williams entered into a contract with SCDOT for the conveyance of the Property for $385,000.  The title was recorded on October 16, 2000, and provided, "The above consideration is for 0.197 of an acre of land, damages, and improvements thereon, if any, including rights of access as maybe [sic] needed for controlled access facilities."  Williams testified he agreed to demolish one of his buildings. 

After demolishing one of his buildings in 2001, Williams was told that his parking scheme was not feasible and that he lacked sufficient space for cars to drive behind the building.  Also, Williams was informed that the parking spaces did not meet the minimum length requirement pursuant to Horry County's Code.  Williams testified he relied on the plan sheets that Hamzy provided and asserted his agreement with SCDOT was contingent on Hamzy's plan sheets.  Williams stated, "[Hamzy] got involved in it and he assured me, 'Mr. Williams, I can show you that you're going to have parking.  You're going to have parking.'"  Williams claims the deed's special provision language concerning damages was in reference only to damages relating to the right-of-way expansion and not to the issue of parking.  However, Williams testified Rice might have informed him the deed's special provision language included parking and all other damages related to the conveyance. 

Conversely, Hamzy contends the plan sheets were provided for "information only" but later admitted there was no documentation indicating the plan sheets were only for informational purposes.  Rice testified Williams did not notify her that the sale of the Property was contingent upon Hamzy's parking scheme and the consideration for the deed including all damages, parking, and access.  Specifically Rice stated,

I was very explicit in letting [Williams] know you and I are the ones who are -- we are negotiating this, sir.  Whatever you get from whomever, this is what we're signing for.  I want that understood, that this is all damages.  Access, parking, this will be it.  This is the legal document you're signing for your piece of property and what happens on here, this all damages. 

Rice also asserted Williams received additional compensation because she knew he was going to have problems with parking or continuing his businesses. 

Williams filed an action in Horry County seeking a declaratory judgment and rescission of the contract on the grounds of mutual mistake and/or unilateral mistake.  On the issue of mutual mistake, the trial court found SCDOT made no misrepresentation regarding parking.  On the issue of unilateral mistake, the trial court found the deed's language included all issues related to damages, which specifically included parking.  As a result, the trial court denied Williams' request to rescind the contract with SCDOT.  This appeal followed.

STANDARD OF REVIEW

An action to set aside a deed is a matter in equity.  Bullard v. Crawley, 294 S.C. 276, 278, 363 S.E.2d 897, 898 (1987).  On appeal from an equitable action, an appellate court may find facts in accordance with its own view of the evidence.  Buffington v. T.O.E. Enter., 383 S.C. 388, 391, 680 S.E.2d 289, 290 (2009).  The appellant is not relieved of his burden of convincing the appellate court the trial judge committed error in his findings.  Pinckney v. Warren, 344 S.C. 382, 387-88, 544 S.E.2d 620, 623 (2001).

LAW/ANALYSIS

A. Unilateral and Mutual Mistake

Williams argues the trial court erred in refusing to rescind the conveyance of the property on the basis of unilateral and mutual mistake.  We believe this issue has been 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.  Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008).  Williams' statement of the issues on appeal states, "Did the lower court err in denying appellant's request for recession of the contract between the parties?" However, Williams fails to produce any argument or authority in support of his contention that the trial court erred in refusing to find unilateral or mutual mistake regarding the conveyance of the property to SCDOT.  Williams' citation of authority only relates to the issue of equitable estoppel.  Therefore, we conclude this issue has been abandoned on appeal. 

B. Equitable Estoppel

Williams argues the trial court erred in refusing to rescind the conveyance on the basis of equitable estoppel.  Specifically, Williams asserts the elements of equitable estoppel are met in this case because (1) he did not have any knowledge about how many parking spaces would be available since he is not an engineer; (2) he justifiably relied on Hamzy's representation of available parking as an agent of SCDOT; and (3) he has suffered a prejudicial change in position because he demolished one of his units and has less building space and reduced his potential for rental income.  We believe this issue is not preserved for review.

Issues cannot be raised for the first time on appeal, but must be raised to and ruled upon by the trial court to preserve it for appellate review.  Richland County v. Carolina Chloride, Inc., 382 S.C. 634, 655, 677 S.E.2d 892, 903 (Ct. App. 2009).  The imposition of the preservation requirement upon an appellant is designed to enable the lower court to rule properly after consideration of all relevant facts, law, and arguments.  Nicholson v. Nicholson, 378 S.C. 523, 537, 663 S.E.2d 74, 82 (Ct. App. 2008).

After a careful review of the record, we believe Williams' equitable estoppel argument was neither raised to nor ruled upon by the trial court.  The transcript of the hearing supports our conclusion.  The trial court's order provides a complete designation of the specific issues presented for review.  The trial court's order stated, "[Plaintiff] seeks declaratory judgment and also seeks to set aside the conveyance of real property for alleged rescission due to mutual mistake and/or rescission due to unilateral mistake."  The trial court further concluded, "There are no additional bases for recovery stated by the Plaintiff under this cause of action beyond which are included in the other causes of action, addressed above."  Finally, the trial court stated that "judgment be entered in favor of the Defendant with respect to the Plaintiff's causes of action for recession due to mutual mistake, rescission due to unilateral mistake, and declaratory judgment."  Accordingly, we find the issue of equitable estoppel is not preserved for our review.

CONCLUSION

Accordingly, the trial court's decision is

AFFIRMED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


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