Foshee v. Ginn-LA West End

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

Ricky H. Foshee and Kyle W. Daniel, Appellants,

v.

Ginn-LA West End, Limited-Corp.; Ginn LA West End, LTD, LLLP;
Ginn Financial Services, LLC; and Bahamas Sales Associate, LLC, Respondents.

Appeal from Georgetown County

Larry B. Hyman, Jr., Circuit Court Judge

Unpublished Opinion No.  2011-UP-568

Heard October 10, 2011 – Filed December
20, 2011 

AFFIRMED

Gene M. Connell, Jr, of Surfside Beach, for Appellants.

Jeffrey K. Douglas, Robert P. Alpert, and John P. MacNaughton, of
Atlanta; John C. Moylan, III, Matthew T. Richardson, and Alice W. Parham, of
Columbia, for Respondents.

PER CURIAM:  Appellants Ricky Foshee and Kyle Daniel appeal from the circuit court's order granting
Respondents' motion to dismiss their complaint related to the purchase of real
property on Grand Bahama Island, Commonwealth of the Bahamas. 

The circuit court based its dismissal of Appellants' complaint upon
two independently-dispositive grounds: (1) Appellants have no standing to bring
this action, and (2) the purchase contract contains a forum-selection provision
that requires all disputes concerning the purchase to be litigated exclusively in
the Commonwealth of the Bahamas.  On appeal, Appellants do not contest either
of the circuit court's dispositive rulings; rather, they contend the circuit
court erred in: (1) dismissing their complaint pursuant to Rule 12(b)(6),
SCRCP; (2) converting Respondents' motion to dismiss into a motion for summary
judgment; and (3) failing to grant Appellants leave to amend their complaint. 
We affirm the circuit court's order pursuant to Rule 220(b)(1), SCACR, and the
following authorities:

1.    Law of the Case:

Because Appellants failed to challenge either of the
court's dispositive rulings, these rulings are the law of the case.  As a
result, this court need not conduct an analysis of the correctness of the trial
court's order.  Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159,
160-61, 177 S.E.2d 544, 544 (1970) (holding where appellant did not challenge both
dispositive grounds for the trial court's decision, the finding, "right or
wrong, is the law of this case and requires affirmance"); Jennings v.
Jennings, 389 S.C. 190, 207, 697 S.E.2d 671, 680 (Ct. App. 2010) (finding when
appellant "has not specifically challenged [a] ruling, it is the law of the
case and requires affirmance"); Contin'l Ins. Co. v. Shives, 328
S.C. 470, 474, 492 S.E.2d 808, 810 (Ct. App. 1997) ("The trial court's unappealed ruling becomes the law of
the case, and we must assume the trial court was correct . . . .").

2.    As to whether the
circuit court erred by dismissing Appellants' Complaint pursuant to Rule
12(b)(6), SCRCP, we find the circuit court did not reach a Rule 12(b)(6)
analysis after it determined the forum-selection and standing issues were
dispositive independently.  The circuit court's order stated: "[T]here is no need to reach the merits of
Defendants' Motion for failure to state a claim." 

3.    As to whether the
circuit court erred by converting Respondents' motion to dismiss to a motion
for summary judgment by reviewing the parties' purchase contract, we find no
error in the court's review of the document that Appellants had referenced throughout
their complaint and upon which their claims were based.  Brazell v. Windsor, 384 S.C. 512, 516, 682 S.E.2d 824, 826 (2009) ("In our view,
allowing a trial court to consider documents that are incorporated by reference
in the complaint but not actually attached thereto prevents a plaintiff from
benefiting from his own oversight or from surviving a motion to dismiss by
intentionally omitting documents upon which their claims are based."). 

4.    As to whether the
circuit court abused its discretion in failing to grant Appellants leave to
amend their complaint, we find no abuse of discretion.  Porter Bros., Inc. v. Specialty Welding Co., 286 S.C. 39,
41, 331 S.E.2d 783, 784 (Ct. App. 1985) ("[A] motion to amend a pleading
is addressed to the sound discretion of the trial judge."); Jennings v.
Jennings, 389 S.C. 190, 196, 697 S.E.2d 671, 674 (Ct. App. 2010) (citing Porter
Bros., 286 S.C. at 41, 331 S.E.2d at 784) ("The discretion
afforded to the trial court in granting or denying an amendment 'is so broad
that it will rarely be disturbed on appeal.'"). 

AFFIRMED.

SHORT,
WILLIAMS, and GEATHERS, JJ., concur.