Air First Aviation Companies, Inc. v. Midwest Aviation Center, Inc.

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Air First Aviation Companies, Inc., a Georgia corporation
registered to do business in South Carolina,       
Appellant,

v.

Midwest Aviation Center, Inc., an Ohio corporation
not registered to do business in South Carolina, Commercial Aircraft Services,
Inc., an Ohio corporation not registered to do business in South Carolina, Michael
J. Fricker and Fred Arthur Calvert,       
Defendants,

Of whom Fred Arthur Calvert is,       
Respondent.

Appeal From Aiken County

J. C. Nicholson, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-075

Submitted June 3, 2002 - Filed January 28, 2003

AFFIRMED

Richard E. Miley, of N. Augusta; and Charles C.
Stebbins, III of Augusta, GA, for appellant.

John A. Hodge, of Columbia, for respondent.   

PER CURIAM:  In this dispute involving a
contract for the inspection and service of two airplanes, Air First Aviation
Co., Inc. appeals the grant of summary judgment to defendant Fred Calvert. 
We affirm. 

FACTS/PROCEDURAL HISTORY

In 1996, Air First Aviation purchased two used
Fokker F27 turboprop airplanes in "as is" condition from Hawaii's Mahalo Airlines,
ferrying them from Honolulu to Aiken, South Carolina.  Several months later,
Air First contacted Midwest Jet Center, an aircraft repair and maintenance business
located in Cincinnati, Ohio, to see if the company could inspect and service
the aircraft, including swapping their engines.  In the course of negotiations,
Fred Calvert, Midwest's Vice-President and Director of Maintenance, made two
trips to South Carolina.  Based on Calvert's assertion that Midwest was authorized
to perform A, B, C, and D aircraft inspections, Air First and Midwest entered
into a contract on June 30, 1997, whereby Air First agreed to pay Midwest $125,000
to perform a "D" inspection on one of the planes and swap the engines as previously
discussed. 

Part way through the inspection process, Midwest
began preparing for the engine swap.  In so doing, Calvert contacted Rolls Royce,
the manufacturer of the aircraft engines, to inquire about leasing some specialized
testing equipment.  At that time, he was surprised to learn Rolls Royce considered
the engines unserviceable because they previously had been stored improperly
in a hot and salty Hawaiian environment.  Rolls Royce officials informed Calvert
that the engines would need a complete overhaul and corrosion assessment before
they could be recertified as airworthy, a complicated mechanical undertaking
for which Calvert and Midwest were not rated.  Because federal regulations require
the company to adhere to the engine manufacturer's recommendations, Midwest
was unable to meet its contractual obligations. 

Air First subsequently filed the instant action
alleging breach of contract accompanied by a fraudulent act, violation of the
South Carolina Unfair Trade Practices Act, and civil conspiracy, premising each
cause of action on allegedly false and misleading statements by Calvert and
another Midwest representative in South Carolina concerning Midwest's ability
to perform the contract.  In May 2000, Calvert filed a motion for summary judgment,
which the trial court granted on August 25, 2000.  This appeal followed. 

LAW/ANALYSIS

Standard of Review

Summary judgment is proper when it is clear there
is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law.  West v. Gladney, 341 S.C. 127, 533 S.E.2d
334 (Ct. App. 2000); see Rule 56, SCRCP.  Such relief can be granted
"when plain, palpable, and undisputed facts exist on which reasonable minds
cannot differ."  Trico Surveying, Inc. v. Godley Auction Co., Inc., 314
S.C. 542, 544, 431 S.E.2d 565, 566 (1993).  When deciding a motion for summay
judgment, the trial court "must view the evidence and the inferences which can
be drawn therefrom in the light most favorable to the non-moving
party."  West,
341 S.C. at 132, 533 S.E.2d at 336. 

Air First initially contends Calvert=s summary
judgment motion was premature, alleging it was not allowed adequate time for
discovery.  This issue is not preserved for appellate review. 

The record reveals the following statement by Air
First counsel at the motion hearing:  

And then there's a motion for summary judgment
that's been
made by the defendant, Fred Calvert.  And Mrs. Campano's office informed me
that that motion was going to be heard today.  I did not receive notification
from the court, but I have no objection to it being heard today.  We're
prepared to argue that motion also in addition to our default judgment motion. 

At no time during the hearing did Air First assert
an objection to the motion based on a failure to obtain outstanding discovery. 
The issue, therefore, is not preserved for our review.  See Baughman
v. Am. Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991) (finding
plaintiffs= argument that outstanding discovery should preclude summary judgment
not preserved where plaintiffs failed to  raise the issue to the trial court). 

Air First next argues the trial court erred in
granting summary judgment because "[t]here is a jury issue as to whether representations
made by Calvert were false so as to support a claim for fraud."  What Air First
fails to note, however, is that it never asserted a claim for fraud-neither
its original or amended complaint, nor the trial court's summary judgment order
references a cause of action for fraud.  Accordingly, there is no issue for
this Court to address in this regard.
[1]  

Air First further asserts the trial court improperly
granted summary judgment on its civil conspiracy claim.  We disagree. 

Civil conspiracy in South Carolina is a common
law tort consisting of three elements:  (1) a combination of two or more persons,
(2) for the purpose of injuring the plaintiff, (3) which causes him special
damage.  Swinton Creek Nursery v. Edisto Farm Credit, ACA, 326 S.C. 426,
483 S.E.2d 789 (Ct. App. 1997), rev'd in part on other grounds,
334 S.C. 469, 514 S.E.2d 126 (1999).  The crux of the tort is a combined action
whose "object is to ruin or damage the business of another."  See id.
at 438, 483 S.E.2d at 795 (quoting  LaMotte v. Punch Line of Columbia, Inc.,
296 S.C. 66, 70, 370 S.E.2d 711, 713 (1988)).

Notwithstanding the fact that Air
First's amended
complaint more closely approximates a cause of action for fraudulent inducement
rather than civil conspiracy, we find Air First presented no facts tending to
rebut Calvert's deposition testimony explaining Midwest's failure to perform. 
We therefore agree with the trial court that the record contains no evidence
Calvert made a false statement or misrepresentation, much less that such was
done for the purpose of injuring Air First's business. 

Viewing the evidence in a light most favorable
to Air First, there is no issue of material fact concerning the alleged falsity
of Calvert's representations regarding Midwest's ability to handle the contract. 
The record clearly reflects that Midwest and Calvert were certified by the Federal
Aviation Administration to perform A, B, C, and D inspections on Fokker F27
aircraft.  Such certification is tangible evidence that both were qualified
and capable of performing the work  required by the contract.  Contrary to Air
First's assertions, the record evidence indicates the sole reason Midwest failed
to perform was the revelation, previously unknown to Calvert and Midwest, that
Rolls Royce had declared the aircraft engines unserviceable.

Moreover, the document entitled
"Contract and Payment Terms" states on its face that "[n]o parts or outside services will be
purchased without the written consent of Air 1st." (emphasis added) 
This language contemplates assistance to Midwest from other companies, subject
only to the requirement of prior written approval from Air First, and negates
any inference that Midwest and only Midwest was to perform work on the aircraft. 

Air First additionally argues the trial court erred
in finding the South Carolina Unfair Trade Practices Act (UTPA) inapplicable
to the facts as alleged.  Again, we disagree. 

First and foremost, the UTPA
"is unavailable to
redress private wrongs if the public interest is unaffected."  Ardis v. Cox,
314 S.C. 512, 518, 431 S.E.2d 267, 271 (Ct. App. 1993); see Noack
Enters., Inc. v. Country Corner Interiors of Hilton Head Island, Inc., 290
S.C. 475, 479, 351 S.E.2d 347, 350 (Ct. App. 1986) ("To be actionable under
the UTPA, therefore, the unfair or deceptive act or practice in the conduct
of trade or commerce must have an impact upon the public
interest.").  Thus,
unfair or deceptive acts or practices that affect only the parties to a commercial
transaction are beyond the UTPA's embrace.  Ardis, 314 S.C. at 518-19,
431 S.E.2d at 271.  Even a deliberate or intentional breach of contract, without
more, does not constitute a violation of the UTPA.  See id. at
519, 431 S.E.2d at 271.

As with Air First's other claims, the alleged UTPA
violation is based upon

the purported misrepresentations regarding
Midwest's
ability to perform under the contract.  Because Air First failed to rebut Midwest=s
evidence showing the statements in question were not false, as noted above,
we also find the trial court properly granted summary judgment on this cause
of action.  Furthermore, as it is quite clear the underlying contract involves
private parties only and in no way implicates the public interest, we agree
with the trial court that the UTPA simply does not apply. 

Finally, since we conclude Air First has no viable
cause of action against Calvert, we need not address its remaining argument
concerning personal jurisdiction. 

AFFIRMED.

CURETON, STILWELL, and SHULER, JJ., concur.

[1]   Of course,
Air First did initiate an action for breach of contract accompanied by a fraudulent
act.  However, according to the trial court=s order, this cause of action
was dismissed with Air First=s consent Ainsofar as Defendant Calvert was not
a party to the Contract.@