Williams v. SC Department of Transportation

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

Larry Williams, Appellant,

v.

South Carolina Department of Transportation, Respondent.

Appeal From Horry County

 J. Stanton Cross, Jr., Master In Equity

Unpublished Opinion No. 2010-UP-226

Submitted February 1, 2010 – Filed April
1, 2010   

AFFIRMED

John P. Bacot, Jr., of Surfside Beach, for Appellant.

John B. McCutcheon, Jr., of Conway, for Respondent.

PER
CURIAM:  Larry Williams (Williams)
contends the trial court erred in denying his request for rescission of his
contract with the South Carolina Department of Transportation (SCDOT) by
refusing to set aside the conveyance of his property (the Property) to SCDOT. 
We affirm.[1]

FACTS

Williams owned three tracts of real property: Tract
6A, Tract 6PCR, and Tract 7 adjacent to and at the corner of Road S-600 and
Pine Island Road in Horry County.  Only Tract 7 is in dispute in this case.  Williams
acquired Tract 7 between 1980 and 1982.  After acquiring Tract 7, Williams
constructed a nine-unit commercial building for business rental use.

During the summer of 2000, SCDOT contacted Williams
about acquiring 2,662 square feet along the front of the Property for a
right-of-way expansion of the Robert M. Grissom Parkway.  Sometime between the
summer and September 2000, settlement negotiations reached a stalemate between
Williams and an eastern region right-of-way consultant.  On September 13, 2000,
Deborah Rice (Rice), the eastern region right-of-way administrator for SCDOT
and Rabih Hamzy (Hamzy), the assistant program manager with SCDOT, met with
Williams to facilitate a settlement agreement.

According to Rice's testimony, Williams was concerned
about the functionality of his commercial units' parking spaces after the
proposed construction of the right-of-way.  Rice also testified Williams
believed the property was worth more than the $162,620 SCDOT offered, and as a
result, Williams made a counteroffer of $500,000.  Rice acknowledged the
parking situation needed further review and asked Hamzy to come up with
"something" that "perhaps could be done [about] the
parking."

Hamzy enlisted Wilbur Smith Associates to produce
planning sheets to show the possibility of parking on Tract 7.  Hamzy
subsequently mailed Williams the plan sheets along with a transmittal letter
dated September 20, 2000.  Hamzy's letter stated, "Dear Mr. Williams:
Enclosed are the plans [sic] sheets you requested.  If you have any other
questions, please call me at (803) 737-1616.  Sincerely, Rob Hamzy Program
Manager."

On September 28, 2000, Williams entered
into a contract with SCDOT for the conveyance of the Property for $385,000.  The
title was recorded on October 16, 2000, and provided, "The above
consideration is for 0.197 of an acre of land, damages, and improvements
thereon, if any, including rights of access as maybe [sic] needed for
controlled access facilities."  Williams testified he agreed to demolish
one of his buildings. 

After demolishing one of his buildings in
2001, Williams was told that his parking scheme was not feasible and that he
lacked sufficient space for cars to drive behind the building.  Also, Williams
was informed that the parking spaces did not meet the minimum length
requirement pursuant to Horry County's Code.  Williams testified he relied on
the plan sheets that Hamzy provided and asserted his agreement with SCDOT was
contingent on Hamzy's plan sheets.  Williams stated, "[Hamzy] got involved
in it and he assured me, 'Mr. Williams, I can show you that you're going to
have parking.  You're going to have parking.'"  Williams claims the deed's
special provision language concerning damages was in reference only to damages
relating to the right-of-way expansion and not to the issue of parking.  However,
Williams testified Rice might have informed him the deed's special provision
language included parking and all other damages related to the conveyance. 

Conversely, Hamzy contends the plan sheets
were provided for "information only" but later admitted there was no
documentation indicating the plan sheets were only for informational purposes. 
Rice testified Williams did not notify her that the sale of the Property was
contingent upon Hamzy's parking scheme and the consideration for the deed
including all damages, parking, and access.  Specifically Rice stated,

I was very explicit in letting [Williams] know you and
I are the ones who are -- we are negotiating this, sir.  Whatever you get from
whomever, this is what we're signing for.  I want that understood, that this is
all damages.  Access, parking, this will be it.  This is the legal document
you're signing for your piece of property and what happens on here, this all
damages. 

Rice also asserted Williams received
additional compensation because she knew he was going to have problems with
parking or continuing his businesses. 

Williams filed an action in Horry County
seeking a declaratory judgment and rescission of the contract on the grounds of
mutual mistake and/or unilateral mistake.  On the issue of mutual mistake, the
trial court found SCDOT made no misrepresentation regarding parking.  On the
issue of unilateral mistake, the trial court found the deed's language included
all issues related to damages, which specifically included parking.  As a
result, the trial court denied Williams' request to rescind the contract with
SCDOT.  This appeal followed.

STANDARD
OF REVIEW

An action to set
aside a deed is a matter in equity.  Bullard v. Crawley, 294 S.C. 276,
278, 363 S.E.2d 897, 898 (1987).  On appeal from an equitable action, an
appellate court may find facts in accordance with its own view of the
evidence.  Buffington v. T.O.E. Enter., 383 S.C. 388, 391, 680
S.E.2d 289, 290 (2009).  The appellant is not relieved of his burden of convincing
the appellate court the trial judge committed error in his findings.  Pinckney
v. Warren, 344 S.C. 382, 387-88, 544 S.E.2d 620, 623 (2001).

LAW/ANALYSIS

A. Unilateral and Mutual
Mistake

Williams argues the trial court erred in
refusing to rescind the conveyance of the property on the basis of unilateral
and mutual mistake.  We believe this issue has been abandoned on appeal.

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.  Bryson v. Bryson, 378 S.C. 502,
510, 662 S.E.2d 611, 615 (Ct. App. 2008).  Williams' statement of the
issues on appeal states, "Did the lower court err in denying appellant's
request for recession of the contract between the parties?" However,
Williams fails to produce any argument or authority in support of his
contention that the trial court erred in refusing to find unilateral or mutual
mistake regarding the conveyance of the property to SCDOT.  Williams' citation
of authority only relates to the issue of equitable estoppel.  Therefore, we
conclude this issue has been abandoned on appeal. 

B. Equitable Estoppel

Williams argues the
trial court erred in refusing to rescind the conveyance on the basis of
equitable estoppel.  Specifically, Williams asserts the elements of equitable
estoppel are met in this case because (1) he did not have any knowledge about
how many parking spaces would be available since he is not an engineer; (2) he
justifiably relied on Hamzy's representation of available parking as an agent
of SCDOT; and (3) he has suffered a prejudicial change in position because he
demolished one of his units and has less building space and reduced his potential
for rental income.  We believe this issue is not preserved for review.

Issues cannot be
raised for the first time on appeal, but must be raised to and ruled upon by
the trial court to preserve it for appellate review.  Richland County v.
Carolina Chloride, Inc., 382 S.C. 634, 655, 677 S.E.2d 892,
903 (Ct. App. 2009).  The imposition
of the preservation requirement upon an appellant is designed to enable the
lower court to rule properly after consideration of all relevant facts, law,
and arguments.  Nicholson v. Nicholson, 378 S.C. 523, 537, 663 S.E.2d
74, 82 (Ct. App. 2008).

After a careful
review of the record, we believe Williams' equitable estoppel argument was
neither raised to nor ruled upon by the trial court.  The transcript of the
hearing supports our conclusion.  The trial court's order provides a complete
designation of the specific issues presented for review.  The trial court's
order stated, "[Plaintiff] seeks declaratory judgment and also seeks to
set aside the conveyance of real property for alleged rescission due to mutual
mistake and/or rescission due to unilateral mistake."  The trial court
further concluded, "There are no additional bases for recovery stated by
the Plaintiff under this cause of action beyond which are included in the other
causes of action, addressed above."  Finally, the trial court stated that
"judgment be entered in favor of the Defendant with respect to the Plaintiff's
causes of action for recession due to mutual mistake, rescission due to
unilateral mistake, and declaratory judgment."  Accordingly, we find the
issue of equitable estoppel is not preserved for our review.

CONCLUSION

Accordingly, the
trial court's decision is

AFFIRMED.

WILLIAMS, GEATHERS,
and LOCKEMY, JJ., concur.

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