Darden v. Ibañez

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

Coves Darden, LLC, Appellant,

v.

Francisco Jose Garcia Ibañez, Dori Derr, and Half Moon
Stables, LLC, Respondents.

Appellate Case No. 2014-000339

Appeal From Aiken County
Doyet A. Early III, Circuit Court Judge

Unpublished Opinion No. 2016-UP-402
Heard December 10, 2015 – Filed August 17, 2016

AFFIRMED

M. Baron Stanton, Stanton Law Offices, P.A., of
Columbia, for Appellant.

Thomas Roy Young Jr., Law Offices of Tom Young, Jr.,
PC, of Aiken; and James M. Derr, of Saint Thomas, U.S.
Virgin Islands, for Respondents.
FEW, A.J.: Coves Darden, LLC appeals the circuit court's order granting
summary judgment in favor of respondents Francisco Jose Garcia Ibañez,1 Dori
Derr, and Half Moon Stables, LLC as to all of Coves Darden's claims. We affirm.

I. Facts and Procedural Background

Coves Darden owns and operates a horse farm in Springfield, South Carolina, in
Aiken County. In 2010, Coves Darden entered into employment negotiations with
Ibañez—a renowned trainer of the type of horse Coves Darden trained at its farm.
At the time, Ibañez trained horses at an academy in Spain. During the
negotiations, Ibañez traveled to the United States several times to visit Coves
Darden and discuss the possibility of moving to South Carolina to train and ride
Coves Darden's horses. Coves Darden paid for Ibañez's travel for each of those
visits. On one visit, Coves Darden orally offered Ibañez employment and
discussed potential terms of an employment agreement. After making multiple
visits, Ibañez accepted the offer and began what he called "a two year sabbatical"
from his employer in Spain.

Miguel Coves—a principal of Coves Darden—stated in an affidavit that as part of
the agreement, Coves Darden "arranged for and paid for the application for and
processing of, the nonimmigrant petition allowing Ibañez to enter the United
States." Coves Darden "paid the legal expenses pertaining to this process"—which
included hiring an immigration lawyer in Miami, Florida—and "paid for Ibañez's
travel expenses from Spain to the United States." The immigration lawyer stated
in an affidavit, "Coves Darden hired me to painstakingly assemble an extraordinary
visa application for Ibañez. They had me prepare the written terms of the
employment to submit in support of the visa application . . . . It was to be effective
upon the visa being granted and Ibañez entering the United States." As part of the
application, Coves Darden submitted a written employment contract signed by
Miguel Coves but not by Ibañez. Ibañez received an "O-1 visa," which "allowed
him to work only for Coves Darden."

After obtaining the visa, Ibañez moved to Coves Darden's farm and began
working. Approximately four months after arriving in the United States, Ibañez
and Coves Darden made plans for Ibañez to enter a competition in Georgia. On
the day Ibañez was set to leave for the competition, Coves Darden discovered he
had abandoned his residence and left a notice ending his employment. Coves

1
The briefs refer to Francisco Jose Garcia Ibañez using different parts of his name,
but we refer to him as Ibañez.
Darden soon discovered Ibañez was registered to enter a different competition for
Dori Derr, an owner of Half Moon Stables—a competitor of Coves Darden.

Coves Darden filed a complaint against the respondents, asserting claims of breach
contract and breach of fiduciary duty against Ibañez, tortious interference with a
contract against Derr, and violations of the South Carolina Unfair Trade Practices
Act against Derr and Half Moon. During discovery, the respondents sent Coves
Darden an interrogatory asking for "the terms and conditions of any alleged oral
agreement with . . . Ibañez with respect to the terms and conditions of his
employment." Coves Darden responded, "The agreement was not oral. It was a
written contract presented to and acknowledged by Ibañez in or before January of
2012, after August of 2011. It states the terms and conditions of the employment
contract . . . . It may or may not have been countersigned by him." However, in
response to the respondents' request for Coves Darden to "produce the fully
executed employment contract," Coves Darden stated it "believes there are none
currently responsive" to the request.

The respondents moved for summary judgment as to all claims, and the circuit
court held three hearings on the respondents' motion. On the day of the second
hearing, Coves Darden filed an amended response to the respondents'
interrogatory, explaining "the parties reduced the common terms of the agreement
to writing. The written document may or may not have been countersigned by
Ibañez. . . . Upon information and belief, the written document was presented to
and acknowledged by Ibañez in or before the time of his visa interview in February
of 2012." After the third summary judgment hearing, the circuit court issued an
order granting summary judgment in favor of the respondents as to all of Coves
Darden's claims.

II. Issues on Appeal

(1) Whether the circuit court erred in granting summary judgment in
favor of Ibañez as to Coves Darden's breach of contract claim;

(2) Whether the circuit court erred in granting summary judgment in
favor of Ibañez as to Coves Darden's breach of fiduciary duty claim;

(3) Whether the circuit court erred in granting summary judgment in
favor of Derr as to Coves Darden's tortious interference with a
contract claim; and
(4) Whether the circuit court erred in granting summary judgment in
favor of Derr and Half Moon as to Coves Darden's claim that Derr and
Half Moon engaged in unfair or deceptive practices in violation of the
South Carolina Unfair Trade Practices Act.

III. Breach of Contract

Coves Darden argues the circuit court erred in granting summary judgment as to its
breach of contract claim against Ibañez. Specifically, Coves Darden asserts the
circuit court erred in finding there is no evidence of a written contract and the oral
contract violated the statute of frauds.

Rule 56(c) of the South Carolina Rules of Civil Procedure provides the circuit
court shall grant summary judgment if "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law." "In
determining whether any triable issue of fact exists, the evidence and all inferences
which can reasonably be drawn therefrom must be viewed in the light most
favorable to the nonmoving party." Quail Hill, LLC v. Cty. of Richland, 387 S.C.
223, 235, 692 S.E.2d 499, 505 (2010) (citation omitted). "However, it is not
sufficient for a party to create an inference that is not reasonable or an issue of fact
that is not genuine." Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d
161, 166 (2013).

In its summary judgment order, the circuit court considered Coves Darden's
discovery responses in which it claimed the parties had a written contract, stated it
could not produce a written contract signed by Ibañez, and later claimed the parties
had an oral contract. The court stated, "Regardless of which version the Court
accepts, the end result is the same." If the circuit court accepted Coves Darden's
original responses, "then the Court [was] left with the conclusion that there was . . .
no oral agreement between the parties, and . . . no written agreement signed by
[Ibañez]." In the alternative, if the circuit court accepted Coves Darden's amended
response in which it claimed the parties had "an alleged oral agreement for
employment between two and three years duration, the Court [was] again left with
the fact that there [was] no writing signed by [Ibañez] and, therefore, the alleged
oral agreement violates the Statute of Frauds and is unenforceable."

First, we find no evidence in the record that Ibañez entered into a written contract
with Coves Darden. The record includes a written employment agreement that
Coves Darden signed and submitted with the visa application, but Ibañez did not
sign the agreement. Although a written contract may be enforceable without being
signed by both parties if the contract is accepted by the party who did not sign, see,
e.g., Peddler, Inc. v. Rikard, 266 S.C. 28, 32, 221 S.E.2d 115, 117 (1975) ("It is not
always necessary, in order to give validity to a contract, that it should be signed by
both parties; it may be sufficient if it be signed by one party and accepted, held,
and acted upon by the other." (citation omitted)), there is no evidence in the record
that Ibañez agreed to the written contract. The only evidence connecting Ibañez to
the written contract is an affidavit from an immigration lawyer stating Coves
Darden "had me go over the employment agreement with Ibañez on the phone . . .
and explain the limitations of the visa and the employment agreement with him. I
discussed point by point each part of the employment agreement with Ibañez, as
part of" Ibañez's preparation for his visa interview with U.S. authorities in Spain.
The affidavit did not state Ibañez agreed to or accepted the terms of the written
agreement.

Alternatively, Coves Darden claims the parties entered into an oral contract. There
is evidence in the record supporting Coves Darden's claim. Miguel Coves filed an
affidavit in which he stated, "We entered into an agreement to employ Ibañez to act
as an expert equestrian trainer," and described the terms of the agreement.
Similarly, Ibañez testified in his deposition that Coves Darden offered him
employment, and he explained the same terms Miguel Coves described in his
affidavit. He testified during the deposition that in January 2011—after multiple
visits to South Carolina—he accepted the proposed terms:

Q: Did you discuss any differences between the two
of you over the terms that would be acceptable?

A: No. We continue[d] with the same agreement.

Q: Did you accept the proposed terms on that visit?

A: Yes.

According to Miguel Coves's affidavit, Coves Darden did not begin the visa
application process—which included reducing "common aspects of the agreement
. . . to writing" to submit to immigration authorities—until after Ibañez accepted
the terms of the oral agreement.

Viewing the oral agreement in the light most favorable to Coves Darden, we find
the parties agreed to the following terms: Coves Darden would pay Ibañez about
$8,000 per month, furnish him a house and car, provide insurance for Ibañez and
his family, assist him in obtaining a work visa, and pay for his travel to and from
the United States until the visa was granted. In addition, Ibañez agreed to work
exclusively for Coves Darden during the term of the agreement.

As to the duration of the contract, Miguel Coves stated in his affidavit, "We both
acknowledged and expected the relationship to continue for at least two years. The
probable expected length of the visa was three years, and his likely initial leave of
absence from his prior employment relationship was to be two years." Moreover,
Ibañez testified during his deposition, "We talked about if we were able to reach an
agreement that I would take a two year sabbatical. And then depending on how
things moved along, well, it could be extended or not." Ibañez testified he
accepted the offer, and Coves Darden's lawyer asked him, "So at this time, you
reached an agreement in which you would work for an expected length of two
years, which might possibly be extended?" Ibañez answered, "Yes." Viewing this
and all other evidence in the light most favorable to Coves Darden, the parties'
agreement as to the term of the contract was that the term would be a minimum of
two years.

Coves Darden argues, however, the parties understood the term of the contract to
be equal to the length of Ibañez's visa, which could have been granted for less than
a year. If the visa was granted for less than a year, Coves Darden argues, the
contract would be fully performed in less than a year and therefore would not be
subject to the statute of frauds. In support of its argument, Coves Darden points
the court to a supplemental interrogatory response Coves Darden filed less than a
week before the third summary judgment hearing in which it stated,

Miguel Coves may testify that the length of the initial
term of the special employment contract was for
whatever initial duration the O-1 visa was granted and
remained in good standing. This was agreed to be up to
three years if also supported by a leave of absence from
Ibañez's previous job, and could also end earlier with
expiration or earlier termination of the O-1 visa . . . ; the
parties also contemplated and expected, but could not be
certain, that the initial term would be two or three years,
based on the usual attributes of an O-1 visa, Ibañez's
leave of absence from his previous job, and the stated
desires and agreement of the parties.2

Coves Darden also directs the court to parts of Miguel Coves's affidavit—in
particular paragraph 6—which stated,

We entered into an agreement to employ Ibañez to act as
an expert equestrian trainer, and to provide expert
instruction and consultancy services in the equestrian arts
for clients of Coves Darden Farm. We both
acknowledged and expected the relationship to continue
for at least two years. The probable expected initial
length of the visa was three years, and his likely initial
leave of absence from his prior employment relationship
was to be two years.

We find the oral contract violated the statute of frauds. The statute of frauds
provides a contract that cannot be performed within one year is unenforceable
unless it is in writing and signed by the party against whom enforcement of the
contract is sought. Springob v. Univ. of S.C., 407 S.C. 490, 495, 757 S.E.2d 384,
387 (2014) ("[T]he Statute of Frauds requires that a contract that cannot be
performed within one year be in writing and signed by the parties." (alteration in
original) (citation omitted)); see also S.C. Code Ann. § 32-3-10 (2007) ("No action
shall be brought whereby . . . (5) To charge any person upon any agreement that is
not to be performed within the space of one year from the making thereof; Unless
the agreement upon which such action shall be brought or some memorandum or
note thereof shall be in writing and signed by the party to be charged therewith
. . . ."). However, "[i]f there is a possibility that a contract might be performed
within one year, the statute of frauds is not a bar to enforcement of the contract."
Springob, 407 S.C. at 495-96, 757 S.E.2d at 387.

Contrary to Coves Darden's argument, the contract would not be removed from the
statute of frauds even if the visa was granted for less than one year. For a contract
to be exempt from the statute of frauds, it must be possible that the contract as
agreed to can be performed within a year. Id.; see also Roberts v. Gaskins, 327
S.C. 478, 484, 486 S.E.2d 771, 774 (Ct. App. 1997) ("It is . . . well established that
the Statute of Frauds applies only to contracts which are impossible of

2
The interrogatory answer is not verified. See Rule 33(a), SCRCP ("Each
interrogatory shall be answered separately and fully in writing under oath . . . .").
performance within one year."). It is not enough that the parties realize the
contract may have to be terminated early for reasons beyond their control—such as
the denial of a sufficiently lengthy work visa in this case. See 9 WILLISTON ON
CONTRACTS § 24:9 (4th ed. 2011) ("[M]ost cases . . . hold a contract to render
service for more than a year to be within the intention and force of the statute [of
frauds], notwithstanding one or both of the parties may have the option of ending it
by notice in a year, because full performance cannot be rendered in a year
consistently with the understanding of the parties." (first and second alteration in
original) (footnote omitted)).

In this case, Ibañez agreed to provide services—teaching lessons, training horses,
and entering competitions—for Coves Darden for a definite term of at least two
years. If he received a visa for less than a year, he would have to leave the United
States after completing less than one year of his two-year obligation. Although the
parties understood federal immigration law may prevent Ibañez from being in the
United States for two full years, the expiration of his visa in less than a year would
not constitute performance of the contract consistent with the understanding of the
parties. Rather, it would constitute excusable nonperformance of Ibañez's
obligation because he could not complete the agreed-upon two years of service.
Therefore, we find the oral contract violated the statute of frauds because it was
impossible to perform in less than one year and was not in writing and signed by
Ibañez.

Because we find Coves Darden and Ibañez had no written contract and no
enforceable oral contract, we find they had only an agreement for employment at
will. An at-will agreement is terminable by either party, and Coves Darden
therefore cannot succeed on a breach of contract claim. See Grant v. Mount
Vernon Mills, Inc., 370 S.C. 138, 145-46, 634 S.E.2d 15, 19 (Ct. App. 2006)
("South Carolina has long recognized the doctrine of employment at-will. This
doctrine allows either party to terminate the employment 'for any reason or no
reason' without being subject to a claim for breach of contract, subject to narrow
exceptions and prohibitions against illegal discrimination . . . ." (citations
omitted)). Accordingly, we hold the circuit court properly granted summary
judgment in favor of Ibañez.

IV. Breach of Fiduciary Duties

Coves Darden argues all employees are agents of their employers and, therefore,
owe fiduciary duties to their employers. Accordingly, it argues the circuit court
erred in finding Ibañez owed no fiduciary duties to Coves Darden.
The circuit court found "there are no fiduciary duties of loyalty owed by a non-
contractual, non-fiduciary employee subject only to the rules for common law at[-
]will employment." The court stated, "South Carolina cases finding a cause of
action for breach of the duty of loyalty have all involved upper level managerial
employees." We agree with the circuit court. We can find no South Carolina
authority providing all employees are agents of their employers and owe their
employers fiduciary duties. Although it may be true that Ibañez had specialized
skills and a close, familial relationship with Miguel Coves, that does not give rise
to fiduciary duties. The record contains no evidence Ibañez indicated to Coves
Darden that he would put Coves Darden's interests before his own. Rather, the
record indicates only that Coves Darden unilaterally placed trust and confidence in
Ibañez and that Ibañez agreed to work for Coves Darden. The unilateral actions of
an employer do not create a fiduciary duty in its employees. See Burwell v. S.C.
Nat'l Bank, 288 S.C. 34, 41, 340 S.E.2d 786, 790 (1986) ("The term fiduciary
implies that one party is in a superior position to the other and that such a position
enables him to exercise influence over one who reposes special trust and
confidence in him. As a general rule, mere respect for another's judgment or trust
in his character is usually not sufficient to establish such a relationship. The facts
and circumstances must indicate that the one reposing the trust has foundation for
his belief that the one giving advice or presenting arguments is acting not in his
own behalf, but in the interests of the other party." (citation omitted)). We affirm
the circuit court's granting of summary judgment as to this issue.

V. Tortious Interference with a Contract

Coves Darden argues the circuit court erred in granting summary judgment as to its
tortious interference with a contract claim because an at-will contract is still a
contract and a question of fact exists as to whether Derr tortiously interfered with
Coves Darden's contract with Ibañez.

To succeed on a claim of tortious interference with contract, a plaintiff must prove
five elements: "(1) existence of a valid contract; (2) the wrongdoer's knowledge
thereof; (3) his intentional procurement of its breach; (4) the absence of
justification; and (5) resulting damages." Dutch Fork Dev. Grp. II, LLC v. SEL
Props., LLC, 406 S.C. 596, 604, 753 S.E.2d 840, 844 (2012). "Where there is no
breach of the contract, there can be no recovery." Eldeco, Inc. v. Charleston Cty.
Sch. Dist., 372 S.C. 470, 481, 642 S.E.2d 726, 732 (2007). In its summary
judgment order, the circuit court ruled the lack of a breach of Ibañez's contract
"alone is fatal to [Coves Darden]'s claim." We agree with the circuit court.
Because we find Coves Darden cannot demonstrate a breach of contract, we find
summary judgment was proper as to the tortious interference with a contract claim.

VI. Unfair Trade Practices

Coves Darden argues the circuit court erred in granting summary judgment as to its
claim that Derr and Half Moon violated the Unfair Trade Practices Act. Coves
Darden primarily contends Derr's alleged tortious interference with a contract was
itself an unfair or deceptive trade practice. Therefore, because it argues the circuit
court erred in granting summary judgment as to the tortious interference claim, it
argues the circuit court also erred in granting summary judgment as to the unfair
trade practices claim. Coves Darden also asserts advertising displayed by Half
Moon was misleading because it "does not convey the truth that Ibañez'[s]
presence in the United States was procured over several years at great expense for
a very large purpose by Coves Darden."

A plaintiff must prove the following elements to recover on an unfair trade
practices claim: "(1) the defendant engaged in an unfair or deceptive act in the
conduct of trade or commerce; (2) the unfair or deceptive act affected [the] public
interest; and (3) the plaintiff suffered monetary or property loss as a result of the
defendant's unfair or deceptive act(s)." Health Promotion Specialists, LLC v. S.C.
Bd. of Dentistry, 403 S.C. 623, 638, 743 S.E.2d 808, 816 (2013) (alteration in
original) (citation omitted).

In its complaint, Coves Darden claimed Derr and Half Moon made two allegedly
deceptive statements in their advertising: "Derr falsely advertised [Ibañez's]
purpose for being in the United States and working for her as his being 'on an
extended teaching sabbatical,' 'based at Half Moon Stables.'" However, in its
memorandum opposing summary judgment, Coves Darden conceded the
statements were "technically true." The circuit court found Coves Darden could
not prove the first element—a deceptive act—because Half Moon's advertising
statements were "technically true," and it could not prove the third element—the
deceptive act affected the public interest—because it offered only "vague,
unsubstantiated claims that any member of the public was deceived by hearing
admittedly true statements."

We find the circuit court properly granted summary judgment. First, as the circuit
court noted, Ibañez was in the United States on a two-year teaching sabbatical and
was based at Half Moon at the time of the advertisements. Therefore, the
statements in Half Moon's advertising were true, and Derr and Half Moon did not
engage in a deceptive act. Second, Coves Darden argues the advertising was
deceptive because it did not disclose to the public that Ibañez originally came to
the United States to work for Coves Darden, not Half Moon. However, Coves
Darden has offered no evidence to explain how that information affects any
member of the public. Accordingly, we affirm the granting of summary judgment
as to this issue.

VII. Conclusion

The circuit court's granting of summary judgment in favor of the respondents is
AFFIRMED.

LOCKEMY, C.J., concurs.

KONDUROS, J., concurring in part and dissenting in part: I agree with the
majority's decision to affirm the circuit court's grant of summary judgment on the
fiduciary duty and unfair trade practices causes of action. However, I respectfully
disagree with the majority as to the issues of breach of contract and tortious
interference of a contract.

I. Interrogatory Response

Initially, I agree with Coves Darden's contention the circuit court erred in it
treatment of Coves's interrogatory answer as an admission.3 Coves Darden
contends the circuit court erred in applying the wrong standard for a summary
judgment decision by disregarding contradictory evidence, considering an unsworn
interrogatory response to be a judicial admission, and considering an unsworn
interrogatory response to be an affidavit rendering a subsequent affidavit a sham.

"In determining the sufficiency of responses to interrogatories, each answer must
be read in the light of the question asked. Absent any specification, the
interrogatory should be construed as seeking current information as of the time the
question is asked and answered." Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101,
108, 410 S.E.2d 537, 541 (1991) (citations omitted). A request for admissions is
governed by a different rule than interrogatories. See Rules 33 & 36, SCRCP;

3
Despite this decision, the circuit court made alternate findings as to the validity of
an oral contract. Presumably, the majority does not directly address this issue
because of those alternate findings.
Scott v. Greenville Hous. Auth., 353 S.C. 639, 648, 579 S.E.2d 151, 155-56 (Ct.
App. 2003).

In Wright v. Hiester Construction Co., 389 S.C. 504, 518, 698 S.E.2d 822, 829 (Ct.
App. 2010), the appellants contended the trial court should have found the
opposing party liable as a matter of law in part because of written admissions made
during discovery. This court determined: "The written admission during discovery
was in response to interrogatories, rather than a request to admit. As such, it was
correctly construed by the trial judge 'as seeking current information as of the time
the question is asked and answered.'" Id. at 519, 698 S.E.2d at 830 (quoting
Baughman, 306 S.C. at 108, 410 S.E.2d at 541).

This court also rejected the appellants' argument "the admissions made on behalf of
[the opposing party] either by [its owner] or [its] counsel amount to judicial
admissions that estop [the party] from denying liability." Id. The court noted:
"Judicial estoppel comes into play when the court is forced to take a position based
on a factual assertion." Id. (quoting Hawkins v. Bruno Yacht Sales, Inc., 353 S.C.
31, 43, 577 S.E.2d 202, 208 (2003)). The court determined, "In the present case,
no court has taken a prior position regarding the [liability]; therefore, judicial
estoppel is not applicable." Id.

Separate rules of civil procedure govern requests for admissions and
interrogatories. The rule on admissions specifically provides that any matter
admitted under the rule is "conclusively established unless the court on motion
permits withdrawal or amendment of the admission." Rule 36(d), SCRCP. The
rule on interrogatories has no such language. See Rule 33, SCRCP. Therefore, the
circuit court erred in considering Coves's response to interrogatories—that the
contract was written—as an admission that there could be no oral contract. Coves
believed Garcia and Coves Darden had a written contract because Coves had
signed the contract. However, this does not exclude the possibility of an oral
contract if the written contract he relied on was not valid. Further, I believe the
interrogatory answer was not a judicial admission because no court had taken a
prior position. See Wright, 389 S.C. at 519, 698 S.E.2d at 830 ("In the present
case, no court has taken a prior position regarding [this issue]; therefore, judicial
estoppel is not applicable."). Accordingly, I would find the circuit court erred in
relying on Coves's response as a ground for granting summary judgment and
concluding no oral contract existed.

II. Existence of Employment Contract
Additionally, I believe the circuit court erred in determining at the summary
judgment stage any oral agreement violated the statute of frauds and any written
contract was not signed by Francisco Jose Garcia Ibañez.4

A. Statute of Frauds

"'[T]he Statute of Frauds requires that a contract that cannot be performed within
one year be in writing and signed by the parties.' If there is a possibility that a
contract might be performed within one year, the statute of frauds is not a bar to
enforcement of the contract." Springob v. Univ. of S.C., 407 S.C. 490, 495-96, 757
S.E.2d 384, 387 (2014) (quoting Davis v. Greenwood Sch. Dist. 50, 365 S.C. 629,
634, 620 S.E.2d 65, 67 (2005)). Therefore, "[t]o satisfy the Statute of Frauds,
every essential element of the contract must be expressed in a writing signed by the
party to be compelled." Fici v. Koon, 372 S.C. 341, 346, 642 S.E.2d 602, 604
(2007)). "The burden of proof is on the party seeking to enforce the contract." Id.
"The elements required to satisfy the statute of frauds in order to have a valid
employment contract are: (a) compensation; (b) determinable duration (an initial
starting date and date of termination); (c) reciprocal rights, duties, and obligations;
and (d) a written instrument if contract not to be performed within one year."
Young v. Indep. Pub. Co., 273 S.C. 107, 110, 254 S.E.2d 681, 682 (1979).

[T]he Statute of Frauds applies only to contracts which
are impossible of performance within one year. A
contract having a contingency which may occur within
the year need not be supported by a written document. If
there is a possibility of performance within a year, the
contract is not barred by the Statute of Frauds. The fact
that performance within a year is highly improbable or
not expected by the parties does not bring a contract
within the scope of this clause.

Roberts v. Gaskins, 327 S.C. 478, 484, 486 S.E.2d 771, 774 (Ct. App. 1997)
(emphases added) (citations omitted).

[When] there is a contingency expressed upon the face of
the contract, or implied from the circumstances, upon the
happening of which within a year the contract or

2
We refer to him as Garcia because his counsel indicates that is the proper way to
refer to him.
agreement will be performed, the contract is not within
the statute, though it be clear that it cannot be performed
within a year except in the event the contingency happens
. . . . If the contingency is such that its happening may
bring the performance within a year, the contract is not
within the terms of the statute; and this is true whether
the parties at the time had in mind the happening of the
contingency or not. The existence of the contingency in
this class of cases, and not the fact that the parties may or
may not have contemplated its happening, is what
prevents the agreement from coming within the scope of
the statute.

Id. at 484-85, 486 S.E.2d at 774 (emphasis added) (omission by court) (quoting
Warner v. Texas & P. Ry. Co., 164 U.S. 418, 432-33 (1896)).

"The question is not what that probable, or expected, or actual performance of the
contract was, but whether the contract, according to the reasonable interpretation of
its terms, required that it should not be performed within the year." Warner, 164
U.S. at 434 (emphasis added); see also Tonkoff v. Roche Fruit & Produce Co., 242
P. 3, 6 (Wash. 1926) ("The true test is, not what the parties expected or what
actually happened, but whether the contract by its terms must endure longer than
the year." (emphasis added)). "Where under the terms of an oral agreement an
employment is to cease on a contingency which may happen within a year, the oral
agreement is not within the statute of frauds." 37 C.J.S. Frauds, Statute of § 52
(2008). If contingencies that could occur within one year "are express or implied-
in-fact terms of a contract," "the full performance contemplated by the contract
could have been rendered within one year of the contract's making." McKinney v.
Nat'l Dairy Council, 491 F. Supp. 1108, 1114 (D. Mass. 1980).

I differ from the majority in that I view the condition the contract only lasts as long
as the visa as a contingency. The majority views it as something that would excuse
performance. In Street v. Maddux, Marshall, Moss & Mallory, Inc., 24 F.2d 617
(D.C. Cir. 1928), an oral lease agreement provided "it should immediately cease
and be of no force or effect if the plaintiff sold the real estate prior to the expiration
of the three-year period." Id. The court found:

That provision of the agreement, however, contemplated
the annulment, not the performance, of the contract. The
annulment of an agreement necessarily implies that the
parties thereto are relieved from performing the
unperformed obligations of the contract. Performance,
on the other hand, means compliance with the obligations
of the contract and the fulfillment thereof. It follows,
therefore, that the annulment of a contract and its
performance are distinctly different conceptions, and
that, although the parol contract in issue might be
annulled within a year, it was none the less a contract, the
performance of which required three years.

Id. at 618-19.

I would find the contract could be performed in a year. The letter from Coves to
Homeland Security in support of the visa application stated Coves Darden "will
employ Mr. Garcia . . . for a term of three (3) years, or for such period as is
authorized by [USCIS]." (emphasis added). The letter also states Coves Darden
"has informed Mr. Garcia . . . of the temporary nature of this employment, and Mr.
Garcia . . . has accepted this condition. [Coves Darden] will not employ [Garcia]
beyond his authorized period of stay." The visa could have been issued for less
than one year, and if it had, Coves Darden would have employed Garcia for less
than a year. I believe this is different from an excusable nonperformance or
termination of the contract like that described in Street. Unlike the majority, I
believe the term of the visa was a contingency contemplated by the contract, not
that it would prevent the contract from being fully performed if it were to occur.
Here, the contract did not provide it would no longer be in force or effect if the
visa was only provided for less than one year; it specified that the employment
would only last as long as the visa term. Garcia would still perform the
responsibilities in the agreement, just for a shorter period of time than hoped for by
the parties. Accordingly, the contract could have been performed in less than one
year and thus is not barred by the statute of frauds. See Weber v. Perry, 201 S.C.
8, 11, 21 S.E.2d 193, 194 (1942) ("Where under the terms of an oral agreement an
employment is to cease upon a contingency which may happen within a year, the
oral agreement is not within the statute of frauds." (quoting 27 C.J. 188)).
Therefore, I believe the circuit court erred in granting summary judgment on the
breach of contract cause of action.

B. Written Contract

"[W]hen a contract signed by one party only is accepted by the other party, it
becomes binding upon both just as if it were signed by both." Jaffe v. Gibbons,
290 S.C. 468, 473, 351 S.E.2d 343, 346 (Ct. App. 1986). "A contract does not
always require the signature of both parties; it may be sufficient, if signed by one
and accepted and acted on by the other." Id.

In Peddler, Inc. v. Rikard, 266 S.C. 28, 31, 221 S.E.2d 115, 117 (1975), the
supreme court concluded "the concurrent findings of fact by the Master and the
trial judge that James C. Rikard entered into a contract with the respondent for the
purchase of a 'Peddler' franchise to operate a restaurant at Santee, South Carolina,
has evidentiary support." In that case, "[t]he appellant James C. Rikard
contend[ed] that the franchise agreement was never signed by him, so there was no
meeting of the minds and hence there was no contract between the parties as to the
franchise and royalty fees." Id. The court determined, "It is not always necessary,
in order to give validity to a contract, that it should be signed by both parties; it
may be sufficient if it be signed by one party and accepted, held, and acted upon by
the other." Id. at 32, 221 S.E.2d at 117 (quoting Gladden v. Keistler, 141 S.C. 524,
140 S.E. 161 (1927)).

[T]he fact that one of the parties has signed the contract
does not require that the other party should do likewise.
A written contract, not required to be in writing, is valid
if one of the parties signs it and the other acquiesces
therein. Acceptance of a contract by assenting to its
terms, holding it and acting upon it, may be equivalent to
a formal execution by one who did not sign it. . . . If a
person accepts and adopts a written contract, even though
it is not signed by him, he is deemed to have assented to
its terms and conditions and to be bound by them.

Id. (ellipsis by court) (emphasis added) (quoting 6 R.C.L. at page 641).

Although there is some written documentation of the contract including the
agreement submitted to USCIS, Coves Darden has provided nothing signed by
Garcia. Coves Darden suggests the contract does not have to be signed by the
parties to be valid and has provided case law supporting that assertion. Notably,
none of the cases in which a contract does not have to be signed are situations in
which the statute of frauds may apply. See id. ("A written contract, not required to
be in writing, is valid if one of the parties signs it and the other acquiesces therein."
(emphasis added) (quoting 6 R.C.L. at page 641)). However, because I would
have found the contract could be performed in less than a year, I would also find
the statute of frauds does not require the contract to be in writing.
Accordingly, I believe the contract could be enforced if Coves signed it and Garcia
acquiesced. The record contains some evidence Garcia assented in that he moved
from Spain, lived in a house and used a car both provided by Coves Darden, and
performed in a competition on behalf of Coves Darden. See id. ("A written
contract, not required to be in writing, is valid if one of the parties signs it and the
other acquiesces therein. Acceptance of a contract by assenting to its terms,
holding it and acting upon it, may be equivalent to a formal execution by one who
did not sign it. . . . If a person accepts and adopts a written contract, even though it
is not signed by him, he is deemed to have assented to its terms and conditions and
to be bound by them." (quoting 6 R.C.L. at page 641)). Additionally, Garcia
testified he had an agreement with Coves Darden, and he acted on it by moving to
South Carolina, working at Coves Darden, and competing on its behalf. See Jaffe,
290 S.C. at 473, 351 S.E.2d at 346 ("A contract does not always require the
signature of both parties; it may be sufficient, if signed by one and accepted and
acted on by the other."). Accordingly, I would find the circuit court erred in
granting summary judgment on the breach of contract cause of action by finding
there was no written contract and the issue should have been submitted to the jury.5

5
Respondents argue Coves Darden asserts for the first time on appeal there is some
possibility of performance of the employment agreement within a year. Because I
would reverse this issue on the merits, I believe I need to express that I would find
the argument is preserved. The possibility of performance in a year due to the
USCIS granting the visa for less than one year was raised to the circuit court in
Coves Darden's opposition to Respondents' statute of frauds argument. The
proceedings before the circuit court were less than clear in terms of the summary
judgment motion. Coves Darden raised this exception as soon as it became aware
Respondents were asserting an oral contract would violate the statute of frauds.
Respondents did not raise the statute of frauds in their first or second motion for
summary judgment or the memorandum referenced in the motions. The circuit
court first raised the statute of frauds at the second summary judgment hearing; it
had not been raised at the prior hearing. Coves Darden responded that
Respondents had not pled the statute of frauds, which is an affirmative defense,
and also that "there are exceptions to the statute of frauds." It further stated "there
are a number of exceptions, and one is, that the statute of frauds only applies if it
was impossible, impossible to perform this agreement within the space of one year.
. . . [I]f [USCIS] revoked the visa for any reason, then obviously they could not
continue to employ him. So all of that was built into the agreement." Coves
Darden also filed a document in opposition to the statute of frauds argument
asserting the same. Based on this, I would find Coves Darden's argument the
III. Tortious Interference with a Contract

Finally, I believe circuit court erred in determining (1) because there was no
contract, there could be no tortious interference with a contract cause of action; (2)
there was no inducement; and (3) such activities were fair competition.

"The elements of a cause of action for tortious interference with contract are: (1)
existence of a valid contract; (2) the wrongdoer's knowledge thereof; (3) his
intentional procurement of its breach; (4) the absence of justification; and (5)
resulting damages." Dutch Fork Dev. Grp. II, LLC v. SEL Props., LLC, 406 S.C.
596, 604, 753 S.E.2d 840, 844 (2012) (quoting Camp v. Springs Mortg. Corp., 310
S.C. 514, 517, 426 S.E.2d 304, 305 (1993)). "[A]n action for tortious interference
protects the property rights of the parties to a contract against unlawful interference
by third parties." Id. (alteration by court) (quoting Threlkeld v. Christoph, 280
S.C. 225, 227, 312 S.E.2d 14, 15 (Ct. App. 1984)). "An essential element to the
cause of action for tortious interference with contractual relations requires the
intentional procurement of the contract's breach. Where there is no breach of the
contract, there can be no recovery." Eldeco, Inc. v. Charleston Cty. Sch. Dist., 372
S.C. 470, 481, 642 S.E.2d 726, 732 (2007) (citation omitted).

The circuit court based its decision to grant summary judgment on this cause of
action based on the lack of an enforceable contract. Because I would find the
circuit court erred in granting summary judgment on the existence of the contract, I
believe summary judgment should be reversed on this cause of action as well.

contract could be performed in one year, thus removing it from the statute of
frauds, is preserved.

Respondents also assert Coves Darden argues for the first time on appeal two other
exceptions apply: (1) there has been partial performance by the party to be charged
and (2) there is independent consideration to support the agreement. As to Coves
Darden's assertion of partial performance, I believe Respondents are correct this
was not raised to the circuit court and is unpreserved for review on appeal. As to
Respondents' assertion the argument there is independent consideration to support
the agreement is unpreserved, I do not see any argument advanced on appeal on
this basis by Coves Darden.
The circuit court also found Coves Darden had not presented any reasonable
evidence Derr intentionally procured the breach. Derr testified at her deposition
she had asked Garcia if he had a contract with Coves Darden. She indicated
Garcia told her he had asked for a copy of the contract from Coves but Coves
would not provide it to Garcia. She stated Garcia indicated the only time he saw a
contract was when Coves waved it in his face and told him the contract prohibited
him from speaking to competitors, which was after Coves had seen Garcia at Half
Moon. Derr further testified Half Moon would not hire Garcia unless it could
obtain a visa for him. She indicated Half Moon could not have hired or paid him
until his visa was approved. Although Derr never saw a written contract between
Coves Darden and Garcia, her testimony indicates she had some knowledge Coves
Darden and Garcia believed that one existed. Further, Coves indicated in his
affidavit that due to the short amount of time between Garcia leaving the
employment of Coves Darden and entering competitions on Half Moon's behalf,
the negotiations must have started while Garcia was still working for Coves
Darden. Accordingly, I believe a question of fact exists as to whether Derr
intentionally procured the breach.

The circuit court also found a privilege exists for those who offer employment to
at-will employees of their competitors. However, because an issue exists as to
whether Coves Darden and Garcia an employment contract, not just an at-will
relationship, this privilege does not apply. Accordingly, I would reverse the grant
of summary judgment on this cause of action.6

6
Coves Darden also asserts the circuit court erred in granting summary judgment
on this cause of action because a third party cannot assert the statute of frauds as a
defense. See Bocook Outdoor Media, Inc. v. Summey Outdoor Advert., Inc., 294
S.C. 169, 177, 363 S.E.2d 390, 394 (Ct. App. 1987) (holding a stranger to an
agreement cannot assert the statute of frauds), overruled on other grounds by
O'Neal v. Bowles, 314 S.C. 525, 431 S.E.2d 555 (1993); Hatcher v. Harleysville
Mut. Ins. Co., 266 S.C. 548, 553, 225 S.E.2d 181, 183 (1976) ("[T]he protection
afforded by the statute of frauds is a personal privilege of the parties to the
agreement, and a stranger to an oral contract cannot avail himself of the fact that
the statute of frauds renders the contract unenforceable." (citation omitted)).
Because I believe the circuit erred in granting summary judgment on this cause of
action because there was not contract, I would not reach this argument. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not review remaining issues when its
determination of a prior issue is dispositive of the appeal).
IV. Conclusion

I would find the circuit court erred in construing Coves's interrogatory as an
admission and granting summary judgment to Respondents on the breach of
contract and tortious interference with a contract cause of action. I agree with the
majority the circuit court properly granted Respondents' motion for summary
judgment on the breach of fiduciary duty and unfair trade practices causes of
action.7

7
I would note Coves Darden made no argument to the circuit court or this court
Respondents should be equitably estopped from asserting the statute of frauds. See
Player v. Chandler, 299 S.C. 101, 106, 382 S.E.2d 891, 894 (1989) ("In order to
overcome statutory requirements that an agreement be in writing, the party
asserting [equitable] estoppel must show that he suffered a definite, substantial,
detrimental change of position in reliance on such agreement and that no remedy
except enforcement of the bargain is adequate to restore his former position.").