SC Electric & Gas v. Anson Construction

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

South Carolina Electric & Gas Co., Respondent,

v.

Anson Construction Company, Inc., Appellant.

Appellate Case No. 2013-001623

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2015-UP-248
Heard March 12, 2015 – Filed May 13, 2015

AFFIRMED

Everett Augustus Kendall, II and James Eric Cavanaugh,
Sweeny Wingate & Barrow, PA, both of Columbia, for
Appellant.

John A. Massalon and Irish Ryan Neville, Wills
Massalon & Allen, LLC, both of Charleston, for
Respondent.

PER CURIAM: Anson Construction Company appeals the circuit court's
granting of partial summary judgment to South Carolina Electric & Gas Company
(SCE&G) on its contractual indemnity claim. We affirm.
In granting partial summary judgment, the circuit court determined the documents
governing the contractual relationship between Anson and SCE&G were: (1)
Anson's quotation; (2) SCE&G's purchase order; and (3) SCE&G's terms and
conditions. The terms and conditions containing the indemnity provision were not
included in Anson's quotation. Anson argues the circuit court erred in granting
summary judgment as a matter of law because the terms and conditions were not
part of the contract between Anson and SCE&G. See Thalia S. ex rel. Gromacki v.
Progressive Select Ins. Co., 401 S.C. 395, 399, 736 S.E.2d 863, 865 (Ct. App.
2012) ("The construction and enforcement of an unambiguous contract is a
question of law for the court, and thus can be properly disposed of at summary
judgment." (citation omitted)).

We find Anson's quotation constituted an offer to SCE&G, SCE&G's purchase
order and terms and conditions constituted a counteroffer, and Anson accepted
SCE&G's counteroffer by performing the work. See Weisz Graphics Div. of Fred
B. Johnson Co. v. Peck Indus., Inc., 304 S.C. 101, 106, 403 S.E.2d 146, 149 (Ct.
App. 1991) ("[N]o contract is formed if the acceptance varies the terms of the
offer. Instead, an acceptance which adds different or additional terms is treated as
a counteroffer, which may be accepted or rejected by the other party." (internal
citation omitted)). Paragraph 1:33 of SCE&G's terms and conditions provided,
"[Anson] and [SCE&G] shall be bound by this CONTRACT and its terms and
conditions . . . when [Anson] renders for [SCE&G] any of the services." Anson
received SCE&G's counteroffer three days before beginning work on the project,
and Peter Stutsman, the president of Anson, conceded the purchase order was
received by Anson as "part of the document package" for the project and formed
part of the contract with SCE&G. See Klutts Resort Realty, Inc. v. Down'Round
Dev. Corp., 268 S.C. 80, 88, 232 S.E.2d 20, 24 (1977) ("[W]here the instruments
have not been executed simultaneously but relate to the same subject matter and
have been entered into by the same parties, the transaction comprising the contract
will be considered as a whole. This is true even though the transaction consumed
more than one day; the date of the writings constituting such transaction is
immaterial."). Thus, we find Anson accepted SCE&G's counteroffer on January 7,
2008, when it began to perform the work outlined in SCE&G's purchase order and
attached terms and conditions. Therefore, the circuit court correctly concluded
SCE&G's terms and conditions were part of the contract between the parties by
operation of law.

Additionally, we find the documents exchanged between the parties
unambiguously provided SCE&G with a right of indemnity. Anson's quotation to
SCE&G was "for work" on the "Church Street Conduit Duct System and Pre-cast
Vault." SCE&G's purchase order stated "Anson Construction Company, Inc.
('Contractor') shall provide all labor, supervision, equipment and materials required
to complete the installation of concrete vault for the Dock Street Theater
project . . . ." The purchase order required Anson to perform the work "in
accordance with . . . the attached General Terms & Conditions." The terms and
conditions contained an indemnity provision in paragraph 1:26 and a clause in
paragraph 1:33 stating the contract between the parties would be formed "when
[Anson] renders for [SCE&G] any of the services." This language unambiguously
provided SCE&G with a right of indemnity, and Anson accepted the terms of the
contract by performing the work in accordance with paragraph 1:33.

Anson contends, however, the only document forming the contractual relationship
between the parties was its quotation, which was accepted by SCE&G when Jesse
Thigpen signed the document. Anson further asserts that it began work based
solely on its quotation, and thus rejected SCE&G's terms and conditions. We
disagree because there is no evidence in the record to support this position. Anson
began work on the project three days after it received SCE&G's counteroffer.
Thus, the circuit court was required to analyze SCE&G's purchase order and terms
and conditions in determining what documents formed the contractual relationship
between the parties. We find the circuit court properly considered all three
documents exchanged between the parties to conclude Anson accepted and became
bound by SCE&G's terms and conditions when Anson entered into the contract by
performing the work.

Anson makes several other arguments as to why summary judgment was improper.
We reject each of these on the basis that the circuit court properly considered all
three documents together to conclude as a matter of law that SCE&G had a right of
indemnity against Anson under the terms of their contract.

AFFIRMED.

FEW, C.J., and HUFF and WILLIAMS, JJ., concur.