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2011-UP-340 - Smith v. Morris

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

Wayne Smith, Respondent,

v.

Christopher R. Morris, Appellant.


Appeal From Barnwell County
Richard B. Ness, Special Referee


Unpublished Opinion No. 2011-UP-340
Submitted June 1, 2011 – Filed June 29, 2011   


AFFIRMED


Frederick James Newton, of Summerville, for Appellant.

J. Martin Harvey, of Barnwell, for Respondent.

PER CURIAM: Appellant, Christopher R. Morris, appeals the order of the special referee ordering Morris to specifically perform his obligation to convey property to respondent, Wayne Smith, upon the proper tender of money from Smith.  Morris contends the special referee erred in (1) ruling the parties entered into a valid and enforceable agreement, (2) ruling Morris had the right to sell, and did sell, a third party's mobile home as part of Morris' sales contract with Smith, (3) construing ambiguity in the parties' written agreement in favor of the drafting party, and (4) awarding Smith special damages which were speculative.  We affirm.[1]

1.  As to Morris' argument that the referee erred in finding the parties entered into a valid and enforceable agreement because the evidence showed the parties disagreed as to whether the mobile home was part of the sales agreement between them and therefore showed there was a mutual mistake between the parties, and, accordingly, there was no meeting of the minds, we find this issue is not properly preserved for review.  Morris did not specifically plead mistake, and never sought to rescind the contract based upon mistake.  There is nothing in the record to indicate Morris ever argued mutual mistake to the referee.  Neither did the referee rule on whether there was a mutual mistake between the parties, and Morris failed to make a post-trial motion to bring the omission of a ruling to the attention of the master.  See Nat'l Grange Mut. Ins. Co. v. Firemen's Ins. Co., 310 S.C. 116, 119, 425 S.E.2d 754, 756 (Ct. App. 1992) (holding, where the theory of mutual mistake was not raised in the pleadings as an affirmative defense, appellant did not request the relief of reformation, the master did not rule on the issue of mutual mistake, and appellant failed to bring this omission to the attention of the master by a post-trial motion, the issue of mutual mistake was not preserved for appeal).  There is simply no indication Morris ever raised to the special referee any of this argument he makes now on appeal.

2.  In regard to Morris' contention that the referee erred in ruling Morris had the right to sell a third party's mobile home as part of his sales contract with Smith because it was inequitable to permit Smith to include a third party's mobile home in the sales contract between Smith and Morris where Smith knew the true owner of the mobile home, and the evidence indicates Morris intended the sale of the mobile home be separate from the sale of the land, we find this issue is both unpreserved and abandoned.  The only law Morris cites in this portion of his argument provides no support for, and is inconsequential to, his assertion on appeal.  Morris cites no law in support of his actual argument that it was inequitable to include a third party's mobile home in a sales contract where Smith knew the true owner was the third party.  See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("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.").  See also State v. Porter, 389 S.C. 27, 35-36, 698 S.E.2d 237, 241 (Ct. App. 2010) (holding, where a party cites only to authority that does not support the specific argument raised, and fails to cite to any authority that supports the specific argument, the argument will be deemed abandoned on appeal).  Additionally, even if the argument were not abandoned, it is not preserved for appellate review, as the record fails to show it was raised to or ruled upon by the referee.  See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (noting the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments).

3. We likewise find Morris' assertion that the referee erred in construing ambiguity in the written agreement in favor of the drafting party is not preserved for our review.  There is nothing in the record to suggest Morris ever asserted to the referee that the written agreement he references was ambiguous and/or that an ambiguity in the agreement should be construed against Smith since Smith's wife drafted it.  Further, the referee's order does not address whether the agreement was ambiguous.  Finally, Morris did not raise the matter in a post-trial motion.  Because the matter was never raised to or ruled upon by the referee, the issue of ambiguity in the written agreement is not preserved.  See Mathis v. Brown & Brown of S.C., Inc., 389 S.C. 299, 311, 698 S.E.2d 773, 779 (2010) (holding, in order for an issue to be properly preserved for review, it must have been both raised to and ruled upon by the trial court); I'On, L.L.C., 338 S.C. at 422, 526 S.E.2d at 724 (noting the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments).

4. Lastly, Morris' assertion on appeal that the referee erred in awarding Smith special damages because Smith's alleged lost profits were the result of a proposed new business and said profits were speculative is also not preserved.  There is nothing in the record to indicate Morris ever argued to the referee that the damages claimed by Smith were too speculative to support an award, and Morris failed to file a Rule 59(e), SCRCP motion requesting the referee address the issue.  See Harkins v. Greenville County, 340 S.C. 606, 620, 533 S.E.2d 886, 893 (2000) (stating an issue must have been ruled upon by the trial court to be preserved for appellate review, and where an appellant has failed to have the trial court rule on an issue, the appellate court will not address it); I'On, L.L.C., 338 S.C. at 422, 526 S.E.2d at 724 (noting the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments); Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding an issue is not preserved where the trial court does not explicitly rule on an argument and the appellant fails to make a Rule 59(e), SCRCP motion to alter or amend the judgment on that ground). 

For the foregoing reasons, the order of the special referee is

AFFIRMED.

HUFF, WILLIAMS, and THOMAS, JJ., concur.


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