Smith v. Morris

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

Wayne Smith, Respondent,

v.

Christopher R.
Morris, Appellant.

Appeal From Barnwell County

Richard B. Ness, Special Referee

Unpublished Opinion No. 2011-UP-340

Submitted June 1, 2011 – Filed June 29,
2011   

AFFIRMED

Frederick James Newton, of Summerville,
for Appellant.

J. Martin Harvey, of Barnwell, for
Respondent.

PER CURIAM: Appellant,
Christopher R. Morris, appeals the order of the special referee ordering Morris
to specifically perform his obligation to convey property to respondent, Wayne
Smith, upon the proper tender of money from Smith.  Morris contends the special
referee erred in (1) ruling the parties entered into a valid and enforceable
agreement, (2) ruling Morris had the right to sell, and did sell, a third party's
mobile home as part of Morris' sales contract with Smith, (3) construing
ambiguity in the parties' written agreement in favor of the drafting party, and
(4) awarding Smith special damages which were speculative.  We affirm.[1]

1.  As to Morris' argument
that the referee erred in finding the
parties entered into a valid and enforceable agreement because the evidence
showed the parties disagreed as to whether the mobile home was part of the
sales agreement between them and therefore showed there was a mutual mistake
between the parties, and, accordingly, there was no meeting of the minds, we
find this issue is not properly preserved for review.  Morris did not
specifically plead mistake, and never sought to rescind the contract based upon
mistake.  There is nothing in the record to indicate Morris ever argued mutual
mistake to the referee.  Neither did the referee rule on whether there was a
mutual mistake between the parties, and Morris failed to make a post-trial
motion to bring the omission of a ruling to the attention of the master.  See Nat'l Grange Mut. Ins. Co. v. Firemen's Ins. Co., 310 S.C. 116, 119, 425
S.E.2d 754, 756 (Ct. App. 1992) (holding, where the theory of mutual mistake
was not raised in the pleadings as an affirmative defense, appellant did not request
the relief of reformation, the master did not rule on the issue of mutual
mistake, and appellant failed to bring this omission to the attention of the
master by a post-trial motion, the issue of mutual mistake was not preserved
for appeal).  There is simply no indication Morris ever raised to the special
referee any of this argument he makes now on appeal.

2.  In regard to Morris'
contention that the referee erred in ruling
Morris had the right to sell a third party's mobile home as part of his sales contract
with Smith because it was inequitable to
permit Smith to include a third party's mobile home in the sales contract
between Smith and Morris where Smith knew the true owner of the mobile home,
and the evidence indicates Morris intended the sale of the mobile home be
separate from the sale of the land, we find this issue is both unpreserved and
abandoned.  The only law Morris cites in this portion of his argument provides
no support for, and is inconsequential to, his assertion on appeal.  Morris
cites no law in support of his actual argument that it was inequitable to
include a third party's mobile home in a sales contract where Smith knew the
true owner was the third party.  See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d
611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the
argument is raised in a brief but not supported by authority.").  See also State v. Porter, 389 S.C. 27, 35-36, 698 S.E.2d 237,
241 (Ct. App. 2010) (holding, where a party cites only to authority that does
not support the specific argument raised, and fails to cite to any authority
that supports the specific argument, the argument will be deemed abandoned on
appeal).  Additionally, even if the argument were not abandoned, it is not
preserved for appellate review, as the record fails to show it was raised to or
ruled upon by the referee.  See I'On, L.L.C. v. Town of Mt. Pleasant,
338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (noting the losing party generally
must both present his issues and arguments to the lower court and obtain a
ruling before an appellate court will review those issues and arguments).

3. We likewise find
Morris' assertion that the referee erred
in construing ambiguity in the written agreement in favor of the drafting party
is not preserved for our review.  There is nothing in the record to suggest
Morris ever asserted to the referee that the written agreement he references was
ambiguous and/or that an ambiguity in the agreement should be construed against
Smith since Smith's wife drafted it.  Further, the referee's order does not
address whether the agreement was ambiguous.  Finally, Morris did not raise the
matter in a post-trial motion.  Because the matter was never raised to or ruled
upon by the referee, the issue of ambiguity in the written agreement is not
preserved.  See Mathis v. Brown & Brown of S.C., Inc., 389
S.C. 299, 311, 698 S.E.2d 773, 779 (2010) (holding, in order for an issue to be
properly preserved for review, it must have been both raised to and ruled upon
by the trial court); I'On, L.L.C., 338 S.C. at 422, 526 S.E.2d at 724
(noting the losing party generally must both present his issues and arguments
to the lower court and obtain a ruling before an appellate court will review
those issues and arguments).

4. Lastly, Morris' assertion on
appeal that the referee erred in awarding Smith special damages because Smith's
alleged lost profits were the result of a proposed new business and said
profits were speculative is also not preserved.  There is nothing in the record
to indicate Morris ever argued to the referee that the damages claimed by Smith
were too speculative to support an award, and Morris failed to file a Rule
59(e), SCRCP motion requesting the referee address the issue.  See Harkins
v. Greenville County, 340 S.C. 606, 620, 533 S.E.2d 886, 893 (2000) (stating an issue must have been ruled upon by the trial
court to be preserved for appellate review, and where an appellant has failed
to have the trial court rule on an issue, the appellate court will not address
it); I'On, L.L.C., 338 S.C. at 422, 526 S.E.2d at 724 (noting the
losing party generally must both present his issues and arguments to the lower
court and obtain a ruling before an appellate court will review those issues
and arguments); Noisette v. Ismail, 304 S.C. 56,
58, 403 S.E.2d 122, 124 (1991) (holding an issue is not preserved where the
trial court does not explicitly rule on an argument and the appellant fails to
make a Rule 59(e), SCRCP motion to alter or amend the judgment on that ground). 

For the foregoing reasons,
the order of the special referee is

AFFIRMED.

HUFF, WILLIAMS, and
THOMAS, JJ., concur.

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