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2011-UP-568 - Foshee v. Ginn-LA West End

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


Ricky H. Foshee and Kyle W. Daniel, Appellants,

v.

Ginn-LA West End, Limited-Corp.; Ginn LA West End, LTD, LLLP; Ginn Financial Services, LLC; and Bahamas Sales Associate, LLC, Respondents.


Appeal from Georgetown County
Larry B. Hyman, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-568
Heard October 10, 2011 – Filed December 20, 2011 


AFFIRMED


Gene M. Connell, Jr, of Surfside Beach, for Appellants.

Jeffrey K. Douglas, Robert P. Alpert, and John P. MacNaughton, of Atlanta; John C. Moylan, III, Matthew T. Richardson, and Alice W. Parham, of Columbia, for Respondents.

PER CURIAM:  Appellants Ricky Foshee and Kyle Daniel appeal from the circuit court's order granting Respondents' motion to dismiss their complaint related to the purchase of real property on Grand Bahama Island, Commonwealth of the Bahamas. 

The circuit court based its dismissal of Appellants' complaint upon two independently-dispositive grounds: (1) Appellants have no standing to bring this action, and (2) the purchase contract contains a forum-selection provision that requires all disputes concerning the purchase to be litigated exclusively in the Commonwealth of the Bahamas.  On appeal, Appellants do not contest either of the circuit court's dispositive rulings; rather, they contend the circuit court erred in: (1) dismissing their complaint pursuant to Rule 12(b)(6), SCRCP; (2) converting Respondents' motion to dismiss into a motion for summary judgment; and (3) failing to grant Appellants leave to amend their complaint.  We affirm the circuit court's order pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.    Law of the Case:

Because Appellants failed to challenge either of the court's dispositive rulings, these rulings are the law of the case.  As a result, this court need not conduct an analysis of the correctness of the trial court's order.  Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 160-61, 177 S.E.2d 544, 544 (1970) (holding where appellant did not challenge both dispositive grounds for the trial court's decision, the finding, "right or wrong, is the law of this case and requires affirmance"); Jennings v. Jennings, 389 S.C. 190, 207, 697 S.E.2d 671, 680 (Ct. App. 2010) (finding when appellant "has not specifically challenged [a] ruling, it is the law of the case and requires affirmance"); Contin'l Ins. Co. v. Shives, 328 S.C. 470, 474, 492 S.E.2d 808, 810 (Ct. App. 1997) ("The trial court's unappealed ruling becomes the law of the case, and we must assume the trial court was correct . . . .").

2.    As to whether the circuit court erred by dismissing Appellants' Complaint pursuant to Rule 12(b)(6), SCRCP, we find the circuit court did not reach a Rule 12(b)(6) analysis after it determined the forum-selection and standing issues were dispositive independently.  The circuit court's order stated: "[T]here is no need to reach the merits of Defendants' Motion for failure to state a claim." 

3.    As to whether the circuit court erred by converting Respondents' motion to dismiss to a motion for summary judgment by reviewing the parties' purchase contract, we find no error in the court's review of the document that Appellants had referenced throughout their complaint and upon which their claims were based.  Brazell v. Windsor, 384 S.C. 512, 516, 682 S.E.2d 824, 826 (2009) ("In our view, allowing a trial court to consider documents that are incorporated by reference in the complaint but not actually attached thereto prevents a plaintiff from benefiting from his own oversight or from surviving a motion to dismiss by intentionally omitting documents upon which their claims are based."). 

4.    As to whether the circuit court abused its discretion in failing to grant Appellants leave to amend their complaint, we find no abuse of discretion.  Porter Bros., Inc. v. Specialty Welding Co., 286 S.C. 39, 41, 331 S.E.2d 783, 784 (Ct. App. 1985) ("[A] motion to amend a pleading is addressed to the sound discretion of the trial judge."); Jennings v. Jennings, 389 S.C. 190, 196, 697 S.E.2d 671, 674 (Ct. App. 2010) (citing Porter Bros., 286 S.C. at 41, 331 S.E.2d at 784) ("The discretion afforded to the trial court in granting or denying an amendment 'is so broad that it will rarely be disturbed on appeal.'"). 

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.