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2011-UP-371 - Shealy v. Paul Shelton Revocable Trust

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

Robert B. Shealy, Jr., Appellant,

v.

The Paul E. Shelton Revocable Trust, Respondent.


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


Unpublished Opinion No. 2011-UP-371
Submitted April 6, 2011 – Filed July 21, 2011  


APPEAL DISMISSED


Stephan V. Futeral and Thomas C. Nelson, both of Mount Pleasant, for Appellant.

Fleet  Freeman, of Mount Pleasant, for Respondent.

PER CURIAM: Robert B. Shealy (Shealy) argues the Master-In-Equity (Master) erred by not awarding him $132,000 in brokers' commission fees for 1219 East Ashley Avenue (the Property) pursuant to a right of first refusal contract (Refusal Contract) executed by Paul E. Shelton.  We dismiss the appeal.[1]   

On February 17, 2003, Shealy and Shelton executed an exclusive right to sell listing agreement for 1220 East Ashley Avenue in Folly Beach, South Carolina.  Pursuant to the terms of the agreement, Shealy was entitled to a commission of 4.5% in exchange for securing a purchaser.  Subsequently, Edward Gilbreath purchased 1220 East Ashley Avenue.  In consideration for Gilbreath's purchase, Shelton granted Gilbreath a right of first refusal to purchase the Property which neighbored 1220 East Ashley Avenue.  The Refusal Contract provided, "Bobby Shealy shall be deemed the listing agent . . . as to a sale of the Property from Paul E. Shelton to Edward GilbreathBobby Shealy shall be deemed the listing agent as to any other sale of the Property."  (emphasis in original).  Shelton died on August 27, 2004, and Shirley Huggins was appointed personal representative of his estate (the Estate).[2] 

Sometime in May or June 2005, Gilbreath viewed the Property but declined to purchase it.  On July 15, 2005, Shealy filed a creditor's claim with the probate court claiming he was entitled to a commission of $132,000 or 6% of the Property's $2,200,000 from the Estate.[3]  The Estate disallowed Shealy's creditor's claim on July 29, 2005, and Shealy petitioned for allowance of the claim on August 18, 2005.  On January 17, 2006, Shealy filed a petition for declaratory judgment or specific performance.  On February 10, 2006, the Estate moved to remove the case to the circuit court, and Shealy also moved to remove the case to the circuit court, including his creditor's claim.  The probate court transferred the case to the circuit court, and the circuit court referred the case to the Master.

The Master concluded (1) Shealy lacked standing to bring suit on the recovery of the brokers' commission fee because the commission belonged to the real estate agency rather than to Shealy; (2) the Refusal Contract was not an enforceable contract, and, as a result Shealy's action for breach of contract or breach of contract with fraudulent intent was not actionable; (3) the declaratory judgment action was not justiciable because there was no enforceable contract declaring Shealy's rights; and (4) Shealy was not entitled to specific performance. We dismiss the appeal pursuant to the following authorities:  Pee Dee Elec. Co-op., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983) (noting an issue that is contingent, hypothetical, or abstract is not ripe for review); Park v. Safeco Ins. Co., 251 S.C. 410, 414, 162 S.E.2d 709, 711 (1968) ("The courts generally decline to pronounce a declaration in a suit wherein the rights of the plaintiff are contingent upon the happening of some event which cannot be forecast and which may never take place."); Springs & Davenport, Inc. v. AAG, Inc., 385 S.C. 320, 325, 683 S.E.2d 814, 816 (Ct. App. 2009) (noting the general rule that a broker earns his commission when "he procures a purchaser who is accepted by the owner of the property and with whom the latter, uninfluenced by any representation of fraud on the part of the broker, enters into a valid and enforceable contract").

APPEAL DISMISSED.

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


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

[2] In its motion for summary judgment, the Estate asserted it was not the proper party-defendant since the Paul E. Shelton Revocable Trust owned the property.  Initially, the Master granted summary judgment in favor of the Estate.  Shealy filed a Rule 59(e), SCRCP, motion, and the Master granted Shealy leave to amend his complaint to substitute the Paul E. Shelton Revocable Trust as the proper defendant.

[3] Shealy subsequently claimed he was entitled to a 4.5% commission fee rather than a 6% commission fee based on the listing agreement of 1220 East Ashley Avenue.