Kuznik v. Dorman

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

Henry Kuznik, Respondent,

v.

Jack Dorman, Appellant.

Appeal From Charleston County

 Thomas L. Hughston, Jr., Circuit Court
Judge

Unpublished Opinion No. 2009-UP-382

Heard May 13, 2009 – Filed July 6, 2009

AFFIRMED

Thomas  Goldstein, of Charleston, for Appellant.

John M. Bleecker, of Charleston, for Respondent.

PER CURIAM: In this case involving a commercial lease,  Jack Dorman
argues the trial court erred in granting Henry Kuznik a directed verdict on all
of Dorman's counterclaims and in excluding Dorman's exhibits.  We affirm. 

FACTUAL/PROCEDURAL
BACKGROUND

Kuznik and Dorman
entered into a commercial lease agreement for 2117 Savannah Highway (the
Property) with a one-year term beginning on March 1, 1998.  The lease granted Dorman
ten one-year renewal options.  The rent was initially $800 a month, but the
lease provided for a cost of living increase each year.  Dorman operated a used
car dealership on the Property.  At the time the parties entered into the
lease, Dorman received possession of the building at the front of the lot.  At
the back of the lot was a larger building that Kuznik rented to two other
businesses.  Kuznik also used a portion of that building for storage. 

In May of 2000, the
South Carolina Department of Transportation condemned the Property for construction
on Savannah Highway.  Dorman and the other tenants vacated the Property. 
Dorman, however, continued to pay Kuznik rent, which Kuznik deposited into his
escrow account.  During the construction project, Dorman's building was
completely destroyed and the other building was partially destroyed.  After the
project ended, Kuznik repaired the larger building and used a portion of it for
storage.  Dorman moved into the remaining part of the building and resumed his
used car business in August of 2001.  In July of 2004, Kuznik moved his office
into the space he had used as storage.  At this point, the parties'
relationship quickly deteriorated.  Kuznik asserted that the original lease was
terminated due to the condemnation proceeding and under the new, oral lease,
Dorman owed $1,650 a month. 

On
December 31, 2004, Kuznik gave Dorman a notice to quit the premises no later
than February 1, 2005.  When Dorman failed to quit the premises, Kuznik brought
this action seeking a writ of ejectment and a claim for rent due in the amount
of $25,178.92.  Dorman answered and claimed the original lease was still
controlling.  He also asserted counterclaims for breach of quiet enjoyment,
civil conspiracy, interference with business relations, and trespass.  The case
was tried before a jury.  At the close of the evidence, the trial court granted
Kuznik a directed verdict on all of Dorman's counterclaims, finding Dorman had
failed to present any evidence of damages.  The court submitted the remaining
claims to the jury with special interrogatories.  The jury found that the
parties had agreed to substitute the new or remodeled building for the old, now
demolished, building in the lease; that the rent the parties agreed to was the
amount in the original lease, and that Kuznik owed Dorman $500.00 for water. 
The court denied Dorman's motion for a new trial.  This appeal followed.  

LAW/ANALYSIS

Dorman
argues the trial court erred in granting Kuznik's directed verdict on all of
his counterclaims.  We disagree.

The
trial court granted Kuznik a directed verdict on all the counterclaims on the
basis that Dorman had failed to establish any damages.  Although this was the
court's only stated ground, Dorman's appellant's brief argument on the directed
verdict issue focuses solely on Kuznik's alleged improper actions.  It does not
address the court's ruling on damages or argue evidence of damages was presented
other than to state:  "While it is impossible to prove a negative-such as
identifying the customers who chose not to purchase an automobile-the record
does establish sufficient evidence for a jury to conclude reasonably that
Kuznik deliberately interfered in Dorman's business."  We find this sole
statement is so conclusory as to consider the issue of damages abandoned.  See Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct.
App. 2005) (finding party abandoned an issue on appeal due to failure to cite
any supporting authority and making only conclusory arguments).  It is not
until the reply brief that Dorman addresses the issue of damages.  However, an
appellant may not raise a specific argument for the first time in his reply brief.  See Crawford v. Henderson, 356 S.C. 389, 409, 589 S.E.2d 204, 215
(Ct. App. 2003).  Similarly, Dorman's presentation of the issue of damages at
oral argument was not sufficient to bring the issue properly before this court.  See Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477
(Ct. App. 1989) (stating an issue raised for the first time in oral argument or
in the reply brief will not be considered by the appellate court). As Dorman
failed to properly challenge the trial court's ruling on damages, the ruling is
the law of the case.  See First Union Nat'l Bank of S.C. v. Soden,
333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct. App. 1998) ("The unchallenged
ruling, right or wrong, is the law of the case and requires affirmance.").

Accordingly,
we affirm the trial court's granting of a directed verdict on Dorman's
counterclaims.  As we affirm for the above stated reason, we need not address
Dorman's remaining issue. 

AFFIRMED.

HUFF,
PIEPER, and GEATHERS, JJ. concur.