Captain's Harbour v. Jones

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

Captain's Harbour and Racquet Club Homeowners'
Association, Inc., Respondent,

v.

Jerald W. Jones, Appellant.

Appellate Case No. 2018-001724

Appeal From Horry County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2021-UP-167
Submitted March 1, 2021 – Filed May 12, 2021

AFFIRMED

John M. Leiter, of Law Offices of John M. Leiter, PA, of
Myrtle Beach, for Appellant.

Douglas Walker MacKelcan, III, and Skyler Cole
Wilson, both of Copeland, Stair, Kingma & Lovell, LLP,
of Charleston, for Respondent.

PER CURIAM: Jerald W. Jones appeals the grant of summary judgment to
Captain's Harbour and Racquet Club Homeowners Association, Inc. (the
Association). On appeal, Jones challenges the circuit court's findings that he was
not a party to the property management agreement (the Agreement) between the
Association and American Contracting Engineers, PA, doing business as ACE
Management (the Manager), and he therefore could not claim contractual
indemnification. He also argues he was a third-party beneficiary of the
indemnification clause of the Agreement, which entitled him to the protection of
the indemnification clause. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

Regarding whether Jones was a party to the Agreement, considering the evidence
in the light most favorable to Jones, we hold the circuit court properly granted
summary judgment in the Association's favor because there was no genuine issue
of material fact and the Association was entitled to judgment as a matter of law.
See Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438-39 (2003) ("In
reviewing the grant of a summary judgment motion, the Court applies the same
standard as the [circuit] court under Rule 56(c), SCRCP: 'summary judgment is
proper when there is no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law.'" (citing Baughman v. Am. Tel. &
Tel. Co., 306 S.C. 101, 114-15, 410 S.E.2d 537, 545 (1991))); id. at 69, 580 S.E.2d
at 439 ("In determining whether summary judgment is appropriate, the evidence
and its reasonable inferences must be viewed in the light most favorable to the
nonmoving party."); Wiegand v. U.S. Auto. Ass'n, 391 S.C. 159, 163, 705 S.E.2d
432, 434 (2011) ("Where cross motions for summary judgment are filed, the
parties concede the issue before us should be decided as a matter of law."); S.C.
Dep't of Transp. v. M & T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 655, 667
S.E.2d 7, 13 (Ct. App. 2008) ("The construction of a clear and unambiguous
contract presents a question of law for the court."); id. ("It is also a question of law
whether the language of a contract is ambiguous."). Here, the Agreement
unambiguously establishes the Association and the Manager as the parties. See
C.A.N. Enters., Inc. v. S.C. Health & Human Servs. Fin. Comm'n, 296 S.C. 373,
377, 373 S.E.2d 584, 586 (1988) ("In construing terms in contracts, [an appellate
court] must first look at the language of the contract to determine the intentions of
the parties."). Further, the Agreement defines the "Manager" only as "American
Contracting Engineers, PA, . . . doing business as (dba) ACE Management," which
fails to make any reference to the Manager's employees, agents, successors, or
assigns. See id. at 378, 373 S.E.2d at 587 ("[W]here the parties define the words or
terms which they propose using, the contract will be interpreted according to such
definitions if free from ambiguity."). Therefore, because this court is limited to the
interpretation of the contract made by the parties themselves regardless of the
parties' wisdom or folly, unreasonableness, or failure to carefully guard their rights
and because Jones was not the "Manager" as defined by the Agreement, the circuit
court correctly determined he was not a party to the Agreement and was not
entitled to contractual indemnification. See id. at 378, 373 S.E.2d at 587 (holding
an appellate court "is limited to the interpretation of the contract made by the
parties themselves ' . . . regardless of its wisdom or folly, apparent
unreasonableness, or failure to guard their rights carefully.'" (quoting Gilstrap v.
Culpepper, 283 S.C. 83, 86, 320 S.E.2d 445, 447 (1984))).

Regarding whether Jones was a third-party beneficiary, this issue is not preserved
for appellate review because the circuit court did not rule upon it. See Chastain v.
Hiltabidle, 381 S.C. 508, 514-15, 673 S.E.2d 826, 829 (Ct. App. 2009) ("It is well
settled that, but for a very few exceptional circumstances, an appellate court cannot
address an issue unless it was raised to and ruled upon by the trial court.").
Further, Jones did not raise the issue in his motion to reconsider. See id. ("When
an issue is raised to but not ruled upon by the trial court, the issue is preserved for
appeal only if the party raises the same issue in a Rule 59(e) motion.").

AFFIRMED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

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