MFM Properties, LLC v. Rotunda Land & Development Group, LLC (2)

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

MFM Properties, LLC and MFM Residential Properties,
LLC, Respondents,

v.

Rotunda Land & Development Group, LLC, and
Calloway Title & Escrow, LLC, Defendants,

of which Rotunda Land & Development Group, LLC is
the Appellant.

Appellate Case No. 2022-001097

Appeal From Beaufort County
Robert J. Bonds, Circuit Court Judge

Unpublished Opinion No. 2025-UP-176
Submitted May 1, 2025 – Filed June 4, 2025

AFFIRMED

Terry A. Finger, of Finger, Melnick, Brooks & LaBruce,
P.A., of Hilton Head Island, for Appellant.

Benjamin Edward Nicholson, V, of Burr & Forman LLP,
of Columbia, for Respondents.
PER CURIAM: Rotunda Land & Development Group, LLC (Rotunda) appeals
the circuit court's order granting summary judgment in favor of MFM Properties,
LLC and MFM Residential Properties, LLC (collectively, MFM), on MFM's
causes of action for breach of contract, declaratory judgment, mandatory
injunction, and specific performance. On appeal, Rotunda argues the circuit court
erred in (1) granting summary judgment because there was a genuine issue of
material fact, (2) granting a judgment in excess of the initial earnest money
deposit, and (3) awarding MFM attorney's fees and costs. We affirm pursuant to
Rule 220(b), SCACR.

Viewing the evidence in the light most favorable to Rotunda, we hold the circuit
court did not err in granting summary judgment in favor of MFM. See Fleming v.
Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002) ("When reviewing the grant
of summary judgment, the appellate court applies the same standard applied by the
[circuit] court pursuant to Rule 56(c)[ of the South Carolina Rules of Civil
Procedure]."); Kitchen Planners, LLC v. Friedman, 440 S.C. 456, 459, 892 S.E.2d
297, 299 (2023) ("[T]he moving party is entitled to summary judgment 'if the
[evidence before the court] show[s] that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.'"
(second and third alterations in original) (quoting Rule 56(c), SCRCP)); Fleming,
350 S.C. at 493-94, 567 S.E.2d at 860 ("When determining if any triable issues of
fact exist, the evidence and all reasonable inferences must be viewed in the light
most favorable to the non-moving party."); Kitchen Planners, 440 S.C. at 463, 892
S.E.2d at 301 ("[I]t is not sufficient for a party to create an inference that is not
reasonable or an issue of fact that is not genuine." (quoting Town of Hollywood v.
Floyd, 403 S.C. 466, 477, 744 S.E.2d 161, 166 (2013))). Even if MFM and
Rotunda had come to an extension agreement in late 2020 or early 2021 as Paul
Lange asserted in his deposition, Rotunda presented no evidence of a written
agreement. In fact, in his deposition, Lange acknowledged MFM did not explicitly
respond and agree to an extension of the deadline. Thus, even if any agreement
existed, at best, the evidence only supports that it was an oral agreement, which
would nevertheless be barred by the statute of frauds because the agreement at
issue here was for the sale of land. See S.C. Code Ann. § 32-3-10(4) (2007)
(requiring a contract for an interest in land be in writing and signed by the party
against whom enforcement is sought); Fici v. Koon, 372 S.C. 341, 346, 642 S.E.2d
602, 604 (2007) ("To satisfy the Statute of Frauds, every essential element of the
contract must be expressed in a writing signed by the party to be compelled.");
Honorage Nursing Home of Florence, S.C., Inc. v. Florence Convalescent Ctr.,
Inc., 367 S.C. 108, 114-15, 623 S.E.2d 853, 856 (Ct. App. 2005) ("The writing
must reasonably identify the subject matter of the contract, sufficiently indicate a
contract has been made between the parties, and state with reasonable certainty the
essential terms of the agreement."); Windham v. Honeycutt, 279 S.C. 109, 110, 302
S.E.2d 856, 856 (1983) ("Generally, a contract required to be in writing by the
Statute of Frauds . . . cannot be orally modified."). Further, although Rotunda
argued the circuit court's award of attorney's fees should be reversed if the circuit
court's summary judgment ruling is reversed, because we affirm the circuit court's
grant of summary judgment, we also affirm the court's award of attorney's fees.

We hold Rotunda's arguments that the circuit court erred in (1) granting judgment
in excess of the initial earnest money deposit because it already paid the initial
earnest money and (2) failing to consider the $45,000 inspection fee Rotunda paid
when calculating damages are not preserved for review because Rotunda made
these arguments for the first time on appeal and did not raise them to the circuit
court. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It
is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the [circuit court] to be preserved for
appellate review.").

AFFIRMED. 1

KONDUROS, MCDONALD, and VINSON, JJ., concur.

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