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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Contract Law

McGill v. Moore, 381 S.C. 179, 672 S.E.2d 571 (2009).
Opinion No. 26585, decided January 20, 2009.

A purchaser made an offer to purchase a tract of land held by multiple owners, known and unknown, by way of intestate succession and devises from wills. The purchaser’s attorney prepared a contract of sale and distributed nine identical copies of the contract to various owners. The contract provided that closing would take place within thirty days after the last contract was signed. All but one of the contracts was signed, and of the eight signed contracts, five were closed. The purchaser filed suit seeking specific performance of the three contracts which were signed but never closed, but the master-in-equity found that the contract contained a condition precedent requiring all owners to sign a contract before the closing could take place. Thus, because one of the nine contracts was never signed, the purchaser was not entitled to specific performance. On appeal, the South Carolina Supreme Court affirmed, holding that the contract contained a condition precedent which could not be waived by the purchaser and which the purchaser could not circumvent by arguing substantial compliance.

M&M Group, Inc. v. Holmes, 379 S.C. 468, 666 S.E.2d 262 (Ct. App. 2008).
Opinion No. 4427, decided July 15, 2008.

The plaintiff and defendant entered into an agreement whereby the defendant would purchase the assets of the plaintiff’s business. The agreement contained a recital stating: “Whereas, the parties agree that Buyer’s obligation to purchase the assets of the business and Seller’s obligation to sell the assets is contingent upon Buyer’s ability to secure commercial financing at prevailing interest rates.” After the defendant failed to close the transaction for lack of financing, the plaintiff sued for breach of contract. The trial court granted summary judgment to the defendant on the grounds that a condition precedent was not met. On appeal, the plaintiff argued that the contingency language could not be read as a condition precedent because it was merely a recital. However, the South Carolina Court of Appeals held that a recital may contain operative language if it is clear that the parties so intended. The language “is contingent upon” clearly indicated the parties intend to condition the contract upon the defendant’s ability to obtain financing. Because the condition was not met, the court affirmed the trial court’s grant of summary judgment for the defendant.

Ward v. West Oil Co., 379 S.C. 225, 665 S.E.2d 618 (Ct. App. 2008).
Opinion No. 4389, decided May 12, 2008.

The parties entered into an agreement to place gaming machines in several convenience stores. On the date the agreement was formalized, the parties initialed a handwritten amendment to the printed agreement which modified the penalties for unilateral termination of the agreement. A few months later, a dispute arose between the parties which culminated with the defendant ordering the plaintiff to remove its machines from the stores. The plaintiff did so and subsequently filed this action seeking breach of contract damages. The master-in-equity found that the parties had intended either party to be able to terminate the agreement at will, and that the only penalty to the defendant for terminating the agreement would be to refund the up-front fees paid by the plaintiff. On appeal, the South Carolina Court of Appeals conducted an extensive review of contract law and principles, ultimately finding that the agreement was ambiguous and that therefore the master was correct to consider parol evidence to determine the intentions of the parties. Because there was evidence to support the master’s findings, the court affirmed the master’s judgment.

Madren v. Bradford, 378 S.C. 187, 661 S.E.2d 390 (Ct. App. 2008).
Opinion No. 4379, decided April 30, 2008.

A buyer and seller entered into a contract to buy and sell real estate. The transaction did not close on the closing date specified in the contract because the seller was performing renovations on the house situated on the property. In e-mails to the seller that were sent both before and after the specified closing date, the buyer inquired about when an appraiser could look at the house and when closing could take place. After the renovations were complete, the seller notified the buyer, who responded that he no longer wished to purchase the property. The seller sued the buyer for breach of contract and specific performance. The buyer moved to dismiss on the grounds that the seller had no contractor’s license, but the trial court denied the motion and awarded damages to the seller. The South Carolina Court of Appeals affirmed the trial court, finding that the buyer’s “no contractor’s license” defense was not appropriately pled as an affirmative defense, that evidence that the buyer expressed continued interest in the transaction beyond the specified closing date was sufficient to support a finding that he waived the closing date requirement, and that the trial court properly calculated the seller’s damages.

Lowcountry Open Land Trust v. Charleston Southern University, 376 S.C. 399, 656 S.E.2d 775 (Ct. App. 2008).
Opinion No. 4336, decided January 16, 2008.

A buyer and seller entered into a contract for the purchase and sale of a piece of property. The seller owned just over 60% of the subject property, and therefore the contract provided that if the owners of the other 40% could not be convinced to sell their share or if there were any other title deficiencies, the buyer could elect to cancel the contract or simply accept such title as the seller could convey as performance in full. Several months after the target closing date passed, the seller terminated the contract and the buyer filed this action for specific performance. The master-in-equity found that because the contract did not contain a “time is of the essence” clause and because the seller had waived its right to enforce the closing date, the buyer was entitled to specific performance, and therefore the master ordered the parties to renegotiate a contract extension. The South Carolina Court of Appeals affirmed the master’s order insofar as it required the seller to convey its interest in the property, but reversed the portion of the order requiring the parties to renegotiate a contract extension because courts have no authority to alter contracts or to make new contracts for the parties.

Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 658 S.E.2d 539 (Ct. App. 2008).
Opinion No. 4334, decided January 16, 2008.

A homeowner contracted with a swimming pool company to install a pool at his home. The contract provided that the homeowner would make progress payments at the completion of five specified tasks. The homeowner made the first three payments, but when the contractor completed the fourth task and requested payment, the homeowner refused to make further payments until the percentage of completion more closely equaled the money paid. The contractor stopped work, and thereafter the homeowner filed this action for breach of contract. The master-in-equity found the contract’s payment provisions were ambiguous and must be construed against their drafter, the contractor, and awarded damages to the homeowner. On appeal, the South Carolina Court of Appeals found the contract language unambiguous and held that the homeowner, by refusing to make payment according to the contract, was actually the breaching party. Therefore, the homeowner was required to bear the liability for his nonperformance.

Brazell v. Windsor, 376 S.C. 83, 655 S.E.2d 736 (Ct. App. 2007).
Opinion No. 4309, decided November 8, 2007.

The plaintiffs entered into a contract to sell a home to the defendant. After closing, the defendant notified the plaintiffs of a flaw in the reverse osmosis system on the property. The defendant’s closing attorney withheld $2,000.00 from the plaintiffs’ sale proceeds and proposed to place them in escrow to fund the repairs. The plaintiffs sought to rescind the sales contract, but the South Carolina Court of Appeals upheld the dismissal of the case because the alleged breach was relatively minor and therefore was not sufficient to justify the remedy of rescission, which requires a substantial and fundamental breach.

 

 

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