Atlantic International, Inc. v. IBYDIT, LLC

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

Atlantic International, Inc., d/b/a Coldwell Banker
Commercial Atlantic, John W. True and Aaron B.
Rowley, Appellants,

v.

IBYDIT, LLC, 1537 Ben Sawyer Blvd, LLC, Curt
Nesbitt, Richard M. McColl, East Islands Real Estate,
Inc., and Ashley Haynes, Individually and as Agent of
East Islands Real Estate, Inc., Respondents.

Appellate Case No. 2023-001575

Appeal From Charleston County
Bentley D. Price, Circuit Court Judge

Unpublished Opinion No. 2025-UP-047
Submitted November 1, 2024 – Filed February 5, 2025

AFFIRMED

Hal Eugene Cobb, of Cobb Hammett & Andrews, LLC,
of Mount Pleasant, for Appellants.

Mary Leigh Arnold, of Mary Leigh Arnold, PA, of
Mount Pleasant, for Respondents 1537 Ben Sawyer Blvd,
LLC, and Richard M. McColl.
Ellis Reed-Hill Lesemann, of Lesemann & Associates,
LLC, of Charleston, for Respondents IBYDIT, LLC and
Curt Nesbitt.

Steven Raymond Kropski, of Earhart Overstreet LLC, of
Mount Pleasant, for Respondents East Islands Real
Estate, Inc. and Ashley Haynes.

PER CURIAM: This case arises out of the sale of 1537 Ben Sawyer Boulevard in
Mount Pleasant (the property). Atlantic International, Inc., John True, and Aaron
Rowley (collectively, Appellants) sued the buyers, Seller, a real estate company,
and a real estate agent (collectively, Respondents) for multiple causes of action.
The circuit court granted summary judgment to Respondents on all causes of
action. We affirm.

This court reviews a grant of summary judgment under the same standard applied
by the circuit court under Rule 56(c), SCRCP. Loflin v. BMP Dev., LP, 427 S.C.
580, 588, 832 S.E.2d 294, 298–99 (Ct. App. 2019), aff'd as modified, 432 S.C. 246,
851 S.E.2d 713 (2020). Summary judgment is proper if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." Rule 56(c),
SCRCP. "Thus, the appellate court reviews all ambiguities, conclusions, and
inferences arising in and from the evidence in a light most favorable to the
non-moving party." Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 240, 672 S.E.2d
799, 802 (Ct. App. 2009). "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." McMaster
v. Dewitt, 411 S.C. 138, 143, 767 S.E.2d 451, 453–54 (Ct. App. 2014) (quoting
Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d 161, 166 (2013)).

Appellants assert that summary judgment was premature, against all Respondents,
because discovery was not complete. They also argue summary judgment was
improper against Nesbitt and IBYDIT because they did not have notice and time to
defend against the motion for summary judgment. We disagree.

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.

Guinan v. Tenet Healthsystems of Hilton Head, Inc., 383 S.C. 48, 54–55, 677
S.E.2d 32, 36 (Ct. App. 2009). In support of their argument that discovery was not
complete against all Respondents, Appellants point to their statement at the hearing
that they had not received discovery from McColl and Seller. However,
Appellants filed their lawsuit on October 5, 2020, and the summary judgment
hearing was held on May 30, 2023. McColl and Seller filed their motion for
summary judgment seven months before the hearing, and they state in their brief
that there was no pending motion to compel against them at the time of the
hearing. Appellants have failed to demonstrate how they were deprived of a full
and fair opportunity to conduct discovery from 2020 to 2023.

Likewise, Appellants have failed to demonstrate error based on time constraints in
the grant of summary judgment to Nesbitt and IBYDIT. Their argument on this
issue is unsupported by authority. See Bryson v. Bryson, 378 S.C. 502, 510, 662
S.E.2d 611, 615 (Ct. App. 2008) (holding an issue is deemed abandoned and will
not be considered on appeal if the argument in the brief is unsupported by
authority).

On July 13, 2022, the South Carolina Real Estate Commission (the Commission)
publicly reprimanded Appellants in this same matter for violating section
40-57-135(I)(2) of the South Carolina Code (Supp. 2024). The Commission found
Appellants communicated with Respondents about the sale of the property without
a listing agreement in place. Appellants admitted they did not obtain a listing
agreement and apologized and took accountability for their actions in this matter.
The Commission noted its action was necessary to protect the public from
"professional ineptitude and misconduct."

Summary judgment was proper to all Respondents because Appellants' claims are
precluded by their violation of section 40-57-135(I)(2), which provides in part that
"[a] listing or buyer's representation agreement must be in writing and must set
forth all material terms of the parties' agency relationship." Appellants also failed
to comply with section 40-57-370(E) of the South Carolina Code (Supp. 2024),
which states "[n]o type of agency relationship may be assumed . . . or created
orally or by implication."

No agency relationship existed between Appellants and Respondents because there
was no agreement in writing. Appellants' violation of these code sections defeats
all the allegations in their complaint. There was no breach of contract action
available against Respondents because there was no written contract or agency,
implied or otherwise. Section 40-57-370(E) does not permit implied agency
relationships in the real estate setting. Appellants argue that Haynes and East
Islands interfered with Appellants' potential contractual relations. However, as an
underlying basis for this allegation in its complaint, Appellants stated contracts
existed between Seller and Rowley and between Buyer and True. As discussed
above, there was no agency relationship or contract in this case.

AFFIRMED. 1

WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.

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