Kiser v. Charleston Lodge No. 242

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Patricia Brenda Kiser, Appellant,

v.

Charleston Lodge No. 242, Charleston South Carolina Of The Benevolent
and Protective Order of Elks, Respondent.

Appeal From Charleston County

 R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-630

Submitted October 1, 2004 – Filed December
14, 2004

AFFIRMED

Chalmers Carey Johnson,
of Charleston, for Appellant.

Matthew H. Henrikson and Mary H. Abel, both of Greenville, for Respondent.

PER CURIAM: Patricia Brenda Kiser appeals from the trial court’s grant
of summary judgment to the Charleston Lodge No. 242 of the Benevolent and Protective
Order of the Elks (the Elks) on her breach of contract claim.  We affirm.1 

FACTS

The Elks is a private club, which offers community and social events to its
members and guests.  After the Elks changed its policy and began to allow women
into its membership, several members of the Elks encouraged Kiser to apply for
membership.  The application process for the Elks involves a sponsor member
proposing the applicant and ensuring the applicant completes the application. 
The sponsoring member gives the application to the lodge secretary who reads
it before the lodge at a regular session.  The investigating committee then
reviews the application, conducts an investigation of the applicant, and interviews
the applicant.  After completing this process, the investigating committee returns
the application to the secretary with a favorable or unfavorable report.  If
the report is favorable, the secretary arranges for the publication of the applicant’s
name in the monthly newsletter with the date on which the applicant is to be
voted on for membership.  At the membership vote, the applicant must receive
no less than two-thirds “yes” votes.  If the applicant fails to receive the
required votes, the applicant’s initiation fee and dues are returned and the
applicant must wait six months before being voted on again. 

Kiser completed the application process and received a favorable report from
the investigating committee.  However, she failed to receive the required two-thirds
vote to be accepted for membership.  After a request from the secretary of the
Elks, the Grand Exalted Ruler issued an executive order waiving the six-month
waiting period, allowing Kiser and another applicant to be voted on again. 
At the second balloting, Kiser again did not receive the required votes for
membership. 

In March of 2002, Kiser filed a breach of contract action
in circuit court claiming the Elks made an offer of membership to her by stating
the steps for application and membership.  Kiser claimed she accepted this offer
by complying with the required steps in the application process.  She asserted
the Elks breached this contract by denying her membership based on her sex. 
The Elks answered, denying the existence of a contract. 

Kiser served discovery requests to the Elks on June 7, 2002. 
On June 19, the Elks filed a motion for summary judgment.  On June 28, the Elks’
attorney requested a thirty-day extension for serving discovery responses, explaining
he had just received the requests, which had been mailed to his old firm’s address. 
Kiser granted the request.  The Elks served its responses to Kiser’s discovery
requests, which contained objections to some requests, on September 10, 2002. 
On September 20, the court issued an order denying the Elks’ motion for summary
judgment based on Kiser’s request for additional time to obtain discovery. 
The court granted leave for the Elks to renew its motion for summary judgment.
 On March 31, 2003, Kiser filed a motion to compel discovery of some of her
interrogatories and requests for production.  Subsequently, the Elks filed a
motion for summary judgment. 

Both motions were heard at the same hearing.  The court first
considered Kiser’s motion to compel.  The court denied her requests to obtain
the names of other women who had applied for membership and not received the
requisite number of votes and the names of members who either voted on Kiser
or were members when Kiser came up for vote.  The court, however, did require
the Elks to produce its membership list, which the Elks had previously offered
to Kiser.  The court then considered the Elks’ motion for summary judgment. 
After hearing the parties’ arguments, the court granted the Elks’ motion for
summary judgment based on a finding that as a matter of law no contract existed
between the parties.  The court’s written order only addressed the grant of
summary judgment.  It did not mention the motion to compel.  This appeal followed.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.  Osborne
v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).  The evidence and all
reasonable inferences therefrom must be viewed in the light most favorable to
the non-moving party.  Id.  “It is well established that summary judgment
should be granted ‘. . . in cases in which plain, palpable and indisputable
facts exist on which reasonable minds cannot differ.’”  Anders v. S.C. Farm
Bureau Mut. Ins. Co., 307 S.C. 371, 373, 415 S.E.2d 406, 407 (Ct. App. 1992)
(quoting Main v. Corley, 281 S.C. 525, 526, 316 S.E.2d 406, 407 (1984));
see Bloom v. Ravoira, 339 S.C. 417, 425, 529 S.E.2d 710, 714 (2000)
(stating where a verdict is not reasonably possible under the facts presented,
summary judgment is proper).

LAW/ANALYSIS

I.                 
Prematurity of motion for summary judgment

Kiser argues that she did not have a full and fair
opportunity to complete discovery because she was denied the opportunity to
obtain the membership list she requested, and that was required pursuant, to
her motion to compel.  We disagree.

Summary judgment is a drastic remedy and must not be
granted until the opposing party has had a full and fair opportunity to complete
discovery.  Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112, 410
S.E.2d 537, 543 (1991).  However, the nonmoving party must demonstrate the likelihood
that further discovery will uncover additional relevant evidence and that the
party is “not merely engaged in a ‘fishing expedition.’”  Id.  at 112,
410 S.E.2d at 544.  See Dawkins v. Fields, 354 S.C. 58, 71, 580
S.E.2d 433, 439-40 (2003) (rejecting the plaintiffs’ argument that summary judgment
was premature because they did not have a full and fair opportunity for discovery
by holding further discovery was unlikely to create any genuine issue of material
fact); Bayle v. S.C. Dep’t of Transp., 344 S.C. 115, 128-29, 542
S.E.2d 736, 743 (Ct. App. 2001) (stating it was not error to grant summary judgment
because no further discovery would have contributed to the resolution of the
case).

We thus must determine whether the additional evidence
sought by Kiser was relevant to her breach of contract claim.  Kiser argues
on appeal that having the list of names of the current members was relevant
in proving her claim, but she fails to explain in her brief how the membership
list is relevant to proving she had a contract with the Elks or that it was
breached. 

To establish a contract, Kiser must prove three elements: 
an offer, acceptance, and consideration.  Sauner v. Pub. Serv. Auth. of S.C.,
354 S.C. 397, 405, 581 S.E.2d 161, 166 (2003).  In order to have a valid and
enforceable contract, there must be a meeting of the minds between the parties
with regard to all essential and material terms of the agreement.  Player
v. Chandler, 299 S.C. 101, 105, 382 S.E.2d 891, 893 (1989).  “The ‘meeting
of minds’ required to make a contract is not based on secret purpose or intention
on the part of one of the parties, stored away in his mind and not brought to
the attention of the other party, but must be based on purpose and intention
which has been made known or which, from all the circumstances, should be known.” 
Id.  at 105, 382 S.E.2d at 894.  Without the actual agreement of the
parties, there is no contract, express or implied.  Stanley Smith & Sons
v. Limestone College, 283 S.C. 430, 433, 322 S.E.2d 474, 477 (Ct. App. 1984). 

As the trial court noted, Kiser admitted she was only
invited to apply for membership and undergo the voting process.  She acknowledged
that she knew when she went through the process there was a chance she would
be rejected by the voting membership and that no one guaranteed that simply
by applying she would become a member.  The trial court held, “The [Elks] never
expressly or impliedly manifested an assent to the most essential and material
term, i.e., [Kiser’s] Lodge membership as the result of a membership vote. .
. . [N]either the [Elks’] words nor the application circumstances indicated
[Kiser] and the [Elks] had the necessary ‘meeting of the minds’ to form a contract.”  

In our examination, the record does not indicate, and
Kiser has not provided evidence to suggest otherwise, that the membership list
is relevant to establish the existence of an offer, acceptance, or consideration
or that a “meeting of the minds” occurred.  When a party fails to establish
the existence of an element essential to the party’s case upon which that party
will bear the burden of proof at trial, “there can be ‘no genuine issue as to
any material fact’ since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.” 
Baughman, 306 S.C. at 116, 410 S.E.2d at 546.  Thus, as Kiser has failed
to demonstrate that further discovery will likely uncover additional evidence
relevant to her breach of contract claim, we find the trial court did not err
in granting the Elks’ summary judgment.

II.              
Grant of summary judgment following the grant of a motion to compel

Kiser argues that the trial court erred in granting
the Elks’ motion for summary judgment immediately after granting Kiser’s motion
to compel.  Although at the hearing Kiser argued the motion was not ripe because
adequate discovery had not been completed, she did not specifically argue the
trial court should not grant the motion because it had just granted her the
right to further discovery.  She furthermore failed to raise this argument in
a Rule 59, SCRCP, motion when the order granting summary judgment did not even
address the motion to compel.  Accordingly, we find this argument not preserved
for our review.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for
the first time on appeal, but must have been raised to and ruled upon by the
trial judge to be preserved for appellate review.”); Noisette v. Ismail,
304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (finding issue was not preserved
for appellate review where the trial judge did not explicitly rule on the appellant’s
argument and the appellant made no Rule 59(e) motion to alter or amend the judgment). 

CONCLUSION

Based on our findings, the trial court did
not err in granting summary judgment to the Elks on Kiser’s breach of contract
claim. Accordingly, the decision of the trial court is

AFFIRMED.      

HEARN, C.J., and HUFF and KITTREDGE, JJ., concur. 

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