ARO-D Enterprises, LLC v. Tiger Enterprises

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

ARO-D Enterprises, LLC, Respondent,

v.

Tiger Enterprises & Trading, Inc., Bonnie Walker and
Dwight Walker, Appellants,

Tiger Enterprises and Trading, Inc., Third-Party
Plaintiff/Appellant,

v.

Rudy A. Dixon, Frank T. Gangi, and T3 Aviation, Inc.,
Third-Party Defendants/Respondents.

Appellate Case No. 2021-000851

Appeal from Greenville County
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2024-UP-049
Heard December 7, 2023 – Filed February 7, 2024

AFFIRMED

Wesley D. Few, of Wesley D. Few, LLC, of Greenville,
for Appellants.
Jason James Andrighetti, of Culbertson Andrighetti,
LLC, of Greenville, for Respondents ARO-D Enterprises,
LLC, and Rudy Dixon.

Steven E. Buckingham, of The Law Office of Steven
Edward Buckingham, LLC, of Greenville, for
Respondents Frank T. Gangi and T3 Aviation, Inc.

PER CURIAM: In this claim and delivery action, Tiger Enterprises & Trading
Company, Inc. (Tiger), Bonnie Walker, and Dwight Walker (collectively,
Appellants) appeal the partial grant of summary judgment to ARO-D Enterprises,
LLC (ARO-D), Rudy A. Dixon, T3 Aviation, Inc., and Frank T. Gangi, arguing the
circuit court erred in (1) finding Appellants had adequate time for discovery; (2)
granting summary judgment when there was a disputed fact regarding the existence
of an agreement between the parties; (3) failing to address the South Carolina
Uniform Electronic Transaction Act (UETA); (4) misapplying the law as to ARO-
D Enterprises' claim and delivery cause of action; (5) prematurely granting
summary judgment to Gangi and T3 Aviation; and (6) misapplying the standard of
review for a summary judgment motion. We affirm.

1. We first hold the circuit court did not prematurely grant summary judgment.
"Summary judgment is a drastic remedy and must not be granted until the
opposing party has had a full and fair opportunity to complete discovery."
Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003). In Guinan v.
Tenet Healthsystems of Hilton Head, Inc., this court stated the following:

A party claiming summary judgment is premature
because they have not been provided a full and fair
opportunity to conduct discovery must advance a good
reason why the time was insufficient under the facts of
the case, and why further discovery would uncover
additional relevant evidence and create a genuine issue of
material fact.

383 S.C. 48, 54-55, 677 S.E.2d 32, 36 (Ct. App. 2009). Here, Appellants have not
demonstrated further discovery would uncover additional, relevant evidence that
would create a genuine issue of material fact. In addition, we find Appellants had
sufficient time to depose Dixon. Thus, we find no premature grant of summary
judgment by the circuit court. Although "summary judgment must not be granted
until the opposing party has had a full and fair opportunity to complete discovery,"
the nonmoving party must demonstrate the "likelihood that further discovery will
uncover additional [relevant] evidence," and the party must not be "merely
engaged in a 'fishing expedition.'" Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101,
112, 410 S.E.2d 537, 543-44 (1991); see Guinan, 383 S.C. at 55, 677 S.E.2d at 36
(finding the circuit court did not err in hearing the defendants' summary judgment
motion because the discovery deadlines had expired and the plaintiff was afforded
a full and fair opportunity to conduct discovery); Savannah Bank, N.A. v. Stalliard,
400 S.C. 246, 253, 734 S.E.2d 161, 165 (2012) (finding the appellant "had ample
time during discovery to uncover evidence and speak with any potential witnesses .
. . [and i]f [the a]ppellant believed he did not have sufficient time, [the a]ppellant
should have promptly filed a motion seeking additional discovery time").

2. We hold the circuit court did not err in granting summary judgment by finding
no written agreement existed between ARO-D and Tiger. The circuit court
correctly found employees of Tiger conceded in an affidavit and deposition that no
signed agreement existed. We find Tiger's allegations that the parties' emails and
letters evidenced a written agreement have no merit. See Rule 56(e), SCRCP
(providing a party challenging a motion for summary judgment "may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial"); Doe ex rel. Doe v. Batson, 345 S.C. 316, 320, 548 S.E.2d
854, 856 (2001) (providing that Rule 56(e) "requires a party opposing summary
judgment to come forward with affidavits or other supporting documents
demonstrating the existence of a genuine issue for trial"); Schmidt v. Courtney, 357
S.C. 310, 317, 592 S.E.2d 326, 330 (Ct. App. 2003) ("Once the party moving for
summary judgment meets the initial burden of showing an absence of evidentiary
support for the opponent's case, the opponent cannot simply rest on mere
allegations or denials contained in the pleadings."); id. (requiring the nonmoving
party to "come forward with specific facts showing there is a genuine issue for
trial").

3. We find no merit to Appellants' argument regarding the application of the
UETA. Appellants presented no evidence that the parties agreed to conduct their
transactions by electronic means. See S.C. Code Ann. § 26-6-50(B) (2007) ("This
chapter applies only to transactions between parties who agree to conduct
transactions by electronic means. Whether the parties agree to conduct a
transaction by electronic means is determined from the context and surrounding
circumstances, including the conduct of the parties.").
4. We find no error by the circuit court in granting ARO-D's motion for summary
judgment on its claim and delivery cause of action. "An action in claim and
delivery is an action at law for the recovery of specific personal property." First
Palmetto State Bank & Tr. Co. v. Boyles, 302 S.C. 136, 138, 394 S.E.2d 313, 314
(1990), superseded by statute on other grounds, S.C. Code Ann. § 15-3-20(B)
(2004), as recognized in Est. of Mims v. S.C. Dep't of Disabilities & Special Needs,
422 S.C. 388, 397, 811 S.E.2d 807, 812 (Ct. App. 2018). "The cause of action for
claim and delivery is governed by South Carolina Code sections 15-69-10 to -210
(2005)." Hotel & Motel Holdings, LLC v. BJC Enters., LLC, 414 S.C. 635, 658,
780 S.E.2d 263, 275-76 (Ct. App. 2015). A party claiming entitlement to property
in a claim and delivery action must show by affidavit:

(1) That the plaintiff is the owner of the property claimed
...;
(2) That the property is wrongfully detained by the
defendant;
(3) The alleged cause of the detention thereof, according
to the affiant's best knowledge, information and belief;
(4) That the property has not been taken for a tax,
assessment or fine pursuant to a statute or seized under
an execution or attachment against the property of the
plaintiff or, if so seized, that it is by statute exempt from
such seizure; and
(5) The actual value of the property.

S.C. Code Ann. § 15-69-30.

In a claim and delivery action, the defendant "should move to set aside the
proceedings so far as the immediate delivery of the property is concerned, . . .
[and] should specify the alleged grounds of insufficiency" if the defendant contests
the right of the plaintiff to claim the immediate delivery of the property because
the affidavit omits an essential element required by the code. Adeimy v. Dleykan,
116 S.C. 159, 163, 107 S.E. 35, 36 (1921). We find ARO-D met the statutory
requirements of a claim and delivery cause of action and the circuit court did not
err in granting summary judgment on this cause of action. Dixon's affidavit
includes a claim of ownership over the property at issue, the allegation of wrongful
detention by Tiger, the cause of the detention, and the values of some of the
property. In addition, we affirm the circuit court's finding that no written
agreement existed giving possessory rights in the property to Appellants. 1

5. We hold the circuit court did not prematurely grant summary judgment to Gangi
and T3 Aviation. As noted previously, the circuit court did not err in finding no
written contract existed; thus, the court did not err in granting summary judgment
as to the cause of action for tortious interference with contract. See Eldeco, Inc. v.
Charleston Cnty. Sch. Dist., 372 S.C. 470, 480, 642 S.E.2d 726, 731 (2007)
(stating the elements of a tortious interference with contractual relations claim are:
"1) the existence of a contract; 2) knowledge of the contract; 3) intentional
procurement of its breach; 4) the absence of justification; and 5) resulting
damages" (emphasis added)). Regarding summary judgment on the UTPA claim,
the circuit court found Appellants had not rebutted T3 and Gangi's claims that
Appellants failed to provide anything beyond mere allegations of, inter alia, an
impact on the public interest. We agree and affirm. See Columbia E. Assocs. v.
Bi-Lo, Inc., 299 S.C. 515, 522, 386 S.E.2d 259, 263 (Ct. App. 1989) ("To be
actionable under the [UTPA], an unfair or deceptive act or practice must have an
impact upon the public interest. The [UTPA] is not available to redress a private
wrong where the public interest is unaffected."); Walton v. Mazda of Rock Hill,
376 S.C. 301, 308, 657 S.E.2d 67, 70 (Ct. App. 2008) (per curiam) ("A party
opposing summary judgment must do more than rely on mere allegations.").

AFFIRMED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

1
We note the circuit court's partial grant of summary judgment leaves pending
many of Appellants' causes of action, including, inter alia, unjust enrichment,
restitution, fraud, negligent misrepresentation, constructive trust, and conversion.