Vidhyaben R. Patel v. Hardik R. Patel (1)

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

Vidhyaben R. Patel, Individually and as Co-Personal
Representative of the Estate of Rameshchandra
Prabhudas Patel, and Darshak Kumar Patel, Individually
and as Co-Personal Representative of the Estate of
Rameshchandra Prabhudas Patel, Appellant-
Respondents,

v.

Hardik R. Patel, Anal H. Patel and AAHARVID, LLC,
Respondent-Appellants.

Appellate Case No. 2020-001472

Appeal From Laurens County
Eugene C. Griffith, Jr., Circuit Court Judge

Unpublished Opinion No. 2024-UP-169
Heard November 7, 2023 – Filed May 8, 2024

AFFIRMED

Sierra Danielle Carini and S. Jahue Moore, both of
Moore Bradley Myers, PA, of West Columbia; and
Samuel M. Price, Jr. and Jennifer Dowd Nichols, both of
Newberry, all for Appellants-Respondents.
Desa Ballard and Harvey M. Watson, III, both of Ballard
& Watson, Attorneys at Law, of West Columbia; and
Thomas Carroll Jeter, III, of Nosal & Jeter, LLP, of Fort
Mill, all for Respondents-Appellants.

PER CURIAM: In this civil action, Vidhyaben "Vidhya" R. Patel (Vidhya) and
Darshak Kumar Patel (Darshak), individually and as co-personal representatives of
the estate of Rameschandra Prabhudas Patel (Ramesh) (collectively, Appellants)
appeal the trial court's order finding in favor of Hardik R. Patel, Anal H. Patel
(Anna), and AAHARVID, LLC (collectively, Respondents). Appellants argue the
trial court erred by failing to impose a resulting or constructive trust over the
property at issue, support its order with evidence presented at trial, and set aside
the conveyance from AAHARVID into a new company as a fraudulent transfer
under the Statute of Elizabeth. Respondents cross-appealed, arguing the trial court
erred by denying their request for relief under the South Carolina Frivolous Civil
Proceedings Sanctions Act (FCPSA) 1 and failing to award attorney's fees and costs
against Appellants. We affirm.

FACTS

Vidhya's spouse, Ramesh, died unexpectedly and intestate in June 2017. The
couple married in India in 1979 and had two children: Hardik and Darshak.
Vidhya and Ramesh immigrated to the United States in 2000 and obtained
permanent resident status in 2013.

Appellants filed this action in February 2019, alleging they were entitled to a
fifty-percent ownership interest in a residence and a convenience store, both
located in Clinton, including the real estate, cash, and inventory of the convenience
store. Appellants further alleged they were entitled to a fifty-percent membership
interest in AAHARVID, LLC and its assets. Appellants alleged causes of action
for resulting trust and constructive trust as to both the residence and the
convenience store. Appellants alleged Vidhya and Ramesh purchased the
residence but because their immigration status would make it difficult for them to
obtain a loan to finance the purchase, the residence was titled in Hardik's name.
Appellants further alleged Vidhya and Ramesh provided the funds to lease and
operate the convenience store and that the designation of Anna, Hardik's spouse, as

1
S.C. Code Ann. §§ 15-36-10 to -100 (Supp. 2023).
the sole member of AAHARVID, LLC was "for administrative convenience with
the understanding that the membership interest would be held in trust by An[na]
for the benefit of Ramesh and Vidhya." In their answer and counterclaims,
Respondents sought a declaratory judgment that Hardik owned the residence and
Anna owned AAHARVID and all assets of the convenience store.

The case proceeded to a non-jury trial. The testimony of Vidhya and Darshak
conflicted with that of Anna and Hardik regarding the ownership of the residence
and the convenience store. According to Vidhya, Ramesh purchased the residence
but titled it in Hardik's name. Vidhya claimed Ramesh leased and purchased the
convenience store using their personal funds. However, she could not say how
much he paid for the down payment on either purchase. According to Anna and
Hardik, Ramesh and Vidhya were employees of the store but Anna, through
AAHARVID, owned it. Anna and Hardik testified they purchased the residence
and the convenience store with their own funds and these properties were titled in
their names, respectively, because they owned them. The parties do not dispute
that Vidhya, Ramesh, Hardik, and Anna all lived together at the residence for a
time and that after Hardik and Anna moved out in 2011, Vidhya and Ramesh
continued to live there.

Anna testified during trial that AAHARVID, LLC leased the convenience store
from P&P Investment (P&P) in 2007. Anna stated she was the owner of
AAHARVID and Prakash Patel and Pallev Desai were the owners of P&P. Anna
clarified she was the sole owner of AAHARVID at the time it was created and
identified her signature on the documents forming the company. Anna testified
Hardik came up with the name AAHARVID and that the "AA" stood for Anna, the
"HAR" stood for Hardik and the "VID" stood for Vidhya. She explained they
included Vidhya's name because she was family. Anna testified she and Hardik
leased the convenience store, including goodwill and inventory, for $124,000. She
executed a promissory note for $124,113.69 to Prakash on August 3, 2007. The
lease and promissory note were entered into evidence at trial, and the note bore
Anna's signature as the obligor. She stated they obtained a loan from P&P for the
entire amount and AAHARVID did not pay any money down at the time of the
lease. Anna testified the payments to Prakash for the lease came out of
AAHARVID's business profits which were held in AAHARVID's business
account. Anna testified there was no specific period on the lease but she and
Hardik paid all of it back. Anna denied Ramesh paid $40,000 to Prakash to satisfy
any portion of the lease. Anna stated neither Ramesh nor Vidhya ever claimed to
have an ownership interest in the store and there was never a discussion that the
store was being leased for Ramesh and Vidhya.
Anna testified she and Hardik purchased the store in the name of AAHARVID in
2012 by taking out a loan from BB&T. She stated they personally guaranteed the
loan and that they paid the mortgage on the loan from the convenience store's
earnings, which were held in its business account. Anna explained Ramesh
negotiated the 2012 sale of the convenience store because he was a great
businessman and she and Hardik trusted him. She explained she and Hardik
provided the financing for the purchase of the convenience store and the real estate
upon which it was located. Anna stated they obtained a loan from BB&T for
$385,000 with a five-year term. She testified Ramesh had no part in setting up
AAHARVID or the financing for the purchase of the convenience store. Anna
stated Prakash, not Desai, handled the financing for AAHARVID to purchase the
store.

Anna testified Vidhya and Ramesh were both salaried employees of the
convenience store but that she was not aware of Vidhya ever working more than
forty hours per week. Anna explained that in 2011, she and Hardik moved to
Richmond, Virginia, and they gave Ramesh and Vidhya check-signing authority so
they could manage the store in Hardik's and Anna's absence.

Anna stated the fact she and Hardik had obtained permanent resident status while
Vidhya and Ramesh possessed only work permit visas had nothing to do with the
way the residence or convenience store were titled. Anna testified she and Hardik
paid the down payment on the residence using their own funds, which they had
earned from their respective jobs. She stated the residence was purchased from
foreclosure for $39,000. She denied Vidhya and Ramesh put down any money on
the purchase. Anna agreed the home was not livable when it was purchased and
required renovation. She stated Hardik completed most of the renovations with the
help of two contractors and the cost was between $45,000 and $50,000. Anna
recalled they took out a loan from BB&T to finance the renovations. She stated
Vidhya and Ramesh lived at the residence after she and Hardik moved out but
Hardik continued to pay the taxes and the insurance.

Anna acknowledged she obtained an interest in a hotel in Newberry (the Newberry
hotel) where Ramesh worked, and that she transferred half of her interest to
Hardik. She could not recall whether she purchased the interest. Anna stated she
and Hardik later gave away their shares in the Newberry hotel.

Vidhya testified she and Ramesh shared finances and that she was familiar with the
finances. She agreed Ramesh was involved in the purchase of the Newberry hotel
and that he put down some money, but she did not know how much. Vidhya
testified she worked in the convenience store from 2007 to 2018. Vidhya asserted
she and Ramesh owned the convenience store, she worked there sixty hours per
week, and she did not receive a paycheck. She stated she and Ramesh ran the cash
register, ordered the inventory for the store, paid all of the bills, and handled the
checkbook for the convenience store. Vidhya testified she and Ramesh put down
money when the store was leased, but she did not know how much. She testified
the name AAHARVID stood for Anna, Hardik, Vidhya, Darshak, and Ramesh and
that they all got together and came up with this name as a family. Vidhya testified
that when she and Ramesh leased the store, they took out a note for about $80,000
for the inventory and goodwill. Vidhya testified they paid the monthly payments
on the lease with the convenience store's profits. She stated that when the store
was leased, she and Ramesh paid about $25,000 for necessary repairs and upgrades
to the property. Vidhya testified that when the Newberry hotel was sold, Ramesh's
portion of the price was paid to Prakash for the note on the convenience store.
Vidhya confirmed the residence was titled in Hardik's name. Vidhya recalled the
residence was purchased for about $39,000 and that she and Ramesh paid for it.
Vidhya testified she and Ramesh paid the taxes and the insurance on the home and
the convenience store. During cross-examination, Vidhya admitted she received
W-2 tax forms for the years 2011 through 2016 showing she was an employee of
the convenience store and that she filed a worker's compensation claim in 2012 in
which she stated she was an employee.

Desai testified he owned the Newberry hotel in 2006 and sold it to an LLC for
about $1.8 million. He stated Ramesh, Prafull Patel, and Prakash Patel were
involved in the purchase. Desai testified that, on behalf of P&P, he negotiated the
lease of the convenience store with Ramesh. He stated AAHARVID was the party
on the note but he only dealt with Ramesh and Ramesh was obligated on the note
given to Prakash. Desai testified he was present when the lease was signed and
that Prakash received about $120,000, which consisted of about $40,000 cash and
the rest was a note. He stated the lease was made to AAHARVID because as a
landlord he wanted to do business with a legal resident of the United States. Desai
further testified he was involved in the financing for the purchase of the
convenience store and that Ramesh was not able to obtain financing from the bank,
so the sale was made to AAHARVID. Desai testified Ramesh made the down
payment for the purchase of the convenience store and paid $80,000 on the note
taken out for the goodwill and inventory. Desai stated he did not know where
Ramesh obtained the funds to pay the down payment.
Prafull Patel testified he was one of the owners of the Newberry hotel. He stated
he, Ramesh, Prakash, and another individual formed a company to purchase the
hotel. Prafull testified Ramesh paid $200,000 toward the purchase, giving him a
forty-percent interest in the hotel. He stated Ramesh transferred his interests to
Anna and Hardik around 2007. Prafull explained Ramesh later withdrew himself
from ownership of the hotel.

Regarding the Newberry hotel, Hardik clarified Ramesh gifted his forty-percent
interest to Anna who then transferred twenty percent to Hardik. He testified they
later gave up their shares in the Newberry hotel to resolve what the owners
determined was an accounting error by Ramesh and that he and Anna received no
value for their shares. Hardik identified an agreement titled "Memorandum of
Understanding" dated July 10, 2013, pursuant to which Hardik and Anna agreed to
transfer their combined forty-percent interest to Prakash. This memorandum stated
that in exchange for these transfers, Prakash agreed the August 3, 2007 promissory
note for the convenience store had been fully satisfied. Hardik agreed the
memorandum contained this language but stated the note had already been paid in
full by this time.

Hardik testified he purchased the residence. He explained he made the down
payment and he and Anna took out a loan for the purchase price. Hardik testified
he supplied a check for $6,573.57 at closing and the deed was in his name.
Documents in the record show a wire transfer of $2,500 in earnest money was
drawn on the bank account that belonged only to Hardik and Anna. Hardik stated
he and Anna were the obligors on the loan and he paid all of the mortgage
payments on the residence since the purchase. Hardik stated the BB&T account
ending in 3464, from which the down payment for the residence and the mortgage
payments were made, was Anna's account. He stated Ramesh was added to the
account as a convenience after 2011 when Hardik and Anna moved to Virginia.
Hardik further testified he paid the taxes and insurance on the residence. He stated
there was never a discussion that Ramesh could not own property because of his
immigration status and Ramesh had in fact owned other property in his name.

Hardik testified AAHARVID was held only in Anna's name and was not a family
business. As to the convenience store, Hardik testified he, Anna, and Prakash
verbally agreed they would lease the store for five years and then purchase the
store. He explained when they leased the store in 2007, Prakash loaned them the
full amount at 8.5% interest and they paid no cash down. Hardik stated they made
payments on the loan using the convenience store's earnings, which were held in
the convenience store's business account. He denied Ramesh and Vidhya made
any payments on the loan. As to the down payment for the purchase of the
convenience store, Hardik stated he had a well-paying job at the time and provided
some money towards the purchase and that the remainder came from the
convenience store's earnings. He stated the convenience store belonged solely to
Anna's company. Hardik further testified Ramesh never asked to transfer title in
the properties to his own name after he obtained permanent residence status in
2013.

The circuit court ruled in favor of Respondents as to Appellants' claims and found
against Respondents as to their counterclaims against Appellants. The circuit court
concluded Appellants failed to establish the existence of a constructive trust or
resulting trust by clear and convincing evidence. The circuit court found Hardik
and Anna used their personal funds and profits of the convenience store to
purchase the residence and convenience store. The circuit court further found there
was conflicting testimony and evidence as to whether the residence or the
convenience store were to belong in whole or in part to Ramesh and concluded the
testimony of Respondents outweighed the testimony of the Appellants. In
addition, the circuit court stated Appellants' arguments regarding immigration
status, if true, would support a conclusion that the transactions were fraudulent in
nature, such that equity would not provide a remedy or impose a trust over the
residence or convenience store. In making its rulings, the circuit court noted it
"carefully observed each witness," including their "tone of voice, gesture[s],
hesitation or readiness to answer questions, their sincerity and mannerisms, as well
as their biases and alliances" in evaluating their credibility.

Appellants filed a motion to reconsider, which the circuit court denied.
Respondents subsequently filed a motion pursuant to the FCPSA for attorney's fees
and costs. The circuit court denied the motion, finding Appellants' claims were not
frivolous under the FCPSA and noting the case was very close factually but the
Respondents' testimony and evidence outweighed Appellants' testimony and
evidence. Respondents filed a motion to reconsider, which the circuit court denied.

ANALYSIS

I. Implied Trusts

Standard of Review

Actions seeking to impose a constructive trust or resulting trust are in equity.
Donnan v. Mariner, 339 S.C. 621, 626, 529 S.E.2d 754, 756-57 (Ct. App. 2000).
Therefore, "a reviewing court may find facts in accordance with its own view of
the evidence." Carolina Park Assocs., LLC v. Marino, 400 S.C. 1, 6, 732 S.E.2d
876, 879 (2012). "While this permits us a broad scope of review, we do not
disregard the findings of the [circuit court], who saw and heard the witnesses and
was in a better position to evaluate their credibility." Jocoy v. Jocoy, 349 S.C. 441,
444, 562 S.E.2d 674, 675 (Ct. App. 2002) (quoting Tiger, Inc. v. Fisher Agro, Inc.,
301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989)).

A. Resulting Trust

We hold the circuit court did not err by finding Appellants failed to establish a
resulting trust for Ramesh's benefit as to the convenience store and the residence.

"Equity devised the theory of resulting trust to effectuate the intent of the parties in
certain situations where one party pays for property, in whole or in part, that for a
different reason is titled in the name of another." Bowen v. Bowen, 352 S.C. 494,
499, 575 S.E.2d 553, 556 (2003).

The general rule is that when real estate is conveyed to
one person and the consideration paid by another, it is
presumed that the party who pays the purchase money
intended a benefit to himself, and accordingly a resulting
trust is raised in his behalf. The presumption, however,
may not be in accord with the truth. It may be rebutted
and the actual intention shown by parol evidence.

Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 249, 489 S.E.2d 472, 475 (1997)
(citations omitted).

"[T]he evidence to establish a resulting trust must be definite, clear, unequivocal
and convincing." Moore v. McKelvey, 266 S.C. 95, 98, 221 S.E.2d 780, 781
(1976). "[F]or a resulting trust to arise, [it] must arise, if at all, at the time the
purchase is made. The funds must then, or prior thereto, be advanced and invested.
A trust will not result from funds subsequently furnished." Glover v. Glover, 268
S.C. 433, 437, 234 S.E.2d 488, 489 (1977) (quoting Hodges v. Hodges, 243 S.C.
299, 307, 133 S.E.2d 816, 819-20 (1963)). Thus, the purported beneficiary of the
resulting trust must "show by definite, clear, unequivocal, and convincing evidence
that she paid a definite portion of the purchase money at the time of the
transaction." Id. at 435, 234 S.E.2d at 489 (emphasis added); see also id. at 436,
234 S.E.2d at 489 (finding "[t]he record show[ed] conclusively that [the purported
beneficiary] paid no part of the purchase money for the property nor did she incur
any legal obligation in connection with the transaction").

We hold Appellants failed to meet their burden of proving that either the residence
or the convenience store was purchased for Ramesh's benefit. As an initial matter,
the circuit court found the testimony of Respondents outweighed the testimony of
the Appellants on the issue of whether the residence or convenience store was to
belong in whole or in part to Ramesh. The circuit court noted it "carefully
observed each witness," including their "tone of voice, gesture[s], hesitation or
readiness to answer questions, their sincerity and mannerisms, as well as their
biases and alliances" in evaluating their credibility. Appellants' testimonies
conflicted with that of Respondents' regarding ownership of the residence and
convenience store. In addition, Vidhya's testimony was at times self-contradictory,
such as when she stated she was an owner of the convenience store but then
admitted that she received W-2 tax forms from 2011 to 2016 showing she was an
employee and had filed a worker's compensation claim in 2012 in which she stated
she was an employee. Where the testimony in the record conflicts, we do not
disregard the circuit court's findings as to the witnesses' credibility. See Jocoy, 349
S.C. at 444, 562 S.E.2d at 675 ("[W]e do not disregard the findings of the [circuit
court], who saw and heard the witnesses and was in a better position to evaluate
their credibility." (quoting Tiger, Inc., 301 S.C. at 237, 391 S.E.2d at 543)).

We hold Appellants failed to set forth definite, clear, unequivocal, and convincing
evidence that Vidhya or Ramesh paid a definite portion of the purchase money
when the residence or convenience store was purchased. Only Respondents
provided documentary evidence associated with the transactions at issue, and this
evidence did not support Appellants' claims. Although Vidhya testified Ramesh
provided money for the purchase of the residence, she did not know how much,
and no evidence shows Vidhya was present for any of the transactions at issue.
Hardik testified he purchased the residence. The loan closing documents from the
purchase of the residence shows only Hardik provided money for the down
payment. The documents showed a transfer of $2,500 in earnest money was drawn
on a bank account that Hardik testified belonged to only Anna and himself and that
Hardik paid $6,573.57 at closing using a check drawn from the same account.
Hardik stated the money came from Anna's employment and the earnings from the
store. The documents further show Hardik obtained a loan for the purchase of the
residence and was the only obligor on the loan. Hardik stated he paid every
mortgage payment on the home since purchasing it. Additionally, he and Anna
testified he had paid the taxes and insurance on the residence.
As to Vidhya's testimony that she and Ramesh paid for renovations to the
residence, Anna testified Hardik paid for these renovations through another loan.
Regardless, "[a] trust will not result from funds subsequently furnished." Glover,
268 S.C. at 437, 234 S.E.2d at 489.

As to the lease of the convenience store, we find the record does not set forth by
clear, unequivocal, and convincing evidence that Ramesh surrendered his
ownership interest in the Newberry hotel to satisfy the balance on the note for the
lease of the convenience store. Although Hardik acknowledged a memorandum
recited this, he stated he and Anna had already satisfied the balance on the note
before the memorandum was written. In addition, the promissory note for the
purchase of the goodwill and inventory for $124,000 shows Anna as the only
obligor. Moreover, the record contains no financial documentation showing
Ramesh made any payments on the lease.

As to the purchase of the convenience store, Anna testified she and Hardik
obtained a $385,000 loan from BB&T for the purchase. The loan was made to
AAHARVID, and it is undisputed Anna was the sole member and manager of
AAHARVID. Hardik testified he and Anna paid the down payment using funds
generated by the convenience store and his and Anna's earnings from their
respective employers. The closing documents show Anna and Hardik personally
guaranteed and were obligated to repay the loan for the purchase of the store.
Anna testified Ramesh signed only on behalf of AAHARVID, pursuant to a limited
power of attorney, and not as a purchaser or obligor. Documents in the record
support this testimony. Further, no documentary evidence shows Ramesh paid any
portion of the down payment. Although Desai testified during trial that Ramesh
paid the down payment, he did not know where Ramesh obtained the funds, and
the record contains no documentary evidence showing who paid this down
payment. The record contains a memorandum that Desai signed indicating a down
payment of $90,950 was made for the purchase of the convenience store and
stating checks submitted as part of the loan request documented this; however, the
record does not contain these checks.

Further, we reject Appellants' claims that because Ramesh could not own property
due to his immigration status, the properties were titled in Hardik's and
AAHARVID's names, respectively, rather than in Ramesh's name. Desai testified
Ramesh was one of the members of the LLC to which Desai sold the Newberry
hotel in 2006. Likewise, Prafull Patel testified Ramesh owned a forty-percent
membership interest in that LLC. In addition, Vidhya testified Ramesh was one of
the owners of the Newberry hotel and had also owned a hotel in Concord, North
Carolina. That Ramesh was a member of an LLC when it purchased an interest in
the Newberry hotel in 2006—well before he obtained permanent residence status
in 2013—indicates his immigration status would not have prevented him from
being a member of AAHARVID or purchasing property. In addition, Hardik
testified he and Ramesh never discussed that Ramesh could not own property due
to his immigration status. Furthermore, as the circuit court acknowledged, "The
law will not permit a party to deliberately put his property out of his control for a
fraudulent purpose, and then, through intervention of a court of equity, regain the
same after his fraudulent purpose has been accomplished." Settlemeyer v.
McCluney, 359 S.C. 317, 321, 596 S.E.2d 514, 516 (Ct. App. 2004) (quoting All v.
Prillaman, 200 S.C. 279, 308, 20 S.E.2d 741, 753 (1942)). Accordingly, we find
the evidence does not support Appellants' assertions that Respondents held legal
title to either property for Ramesh's benefit due to his immigration status.

Based on the foregoing, we find Appellants have failed to prove by definite, clear,
unequivocal, and convincing evidence that a resulting trust was created for
Ramesh's benefit as to the residence or the convenience store. We therefore affirm
as to this issue.

B. Constructive Trust

We hold the circuit court did not err by failing to find a constructive trust arose in
Ramesh's favor.

"A constructive trust will arise whenever the circumstances under which property
was acquired make it inequitable that it should be retained by the one holding the
legal title." Lollis v. Lollis, 291 S.C. 525, 529, 354 S.E.2d 559, 561 (1987). "A
constructive trust results from fraud, bad faith, abuse of confidence, or violation of
a fiduciary duty which gives rise to an obligation in equity to make restitution." Id.
"[A] confidential or fiduciary relationship exists when one reposes a special
confidence in another so that the latter, in equity and good conscience, is bound to
act in good faith and with due regard to the interest of the one reposing the
confidence." Chapman v. Citizens & S. Nat'l Bank of S.C., 302 S.C. 469, 477, 395
S.E.2d 446, 451 (Ct. App. 1990). "A constructive trust arises whenever a party has
obtained money which does not equitably belong to him or has been acquired
through a breach of trust or the violation of a fiduciary duty." Id. at 480, 395
S.E.2d at 453. "[T]he standard of proof is high, in that 'to establish a constructive
trust, the evidence must be clear, definite, and unequivocal.'" Carolina Park
Assocs., LLC, 400 S.C. at 6, 732 S.E.2d at 879 (quoting Lollis, 291 S.C. at 530,
354 S.E.2d at 561); see also All, 200 S.C. at 304, 20 S.E.2d at 752 ("Proof to
establish a constructive trust must be clear, convincing, and so strong, unequivocal,
and unmistakable as to lead but to one conclusion. If the evidence is doubtful or
capable of reasonable explanation upon a theory other than the existence of the
trust, it is not sufficient to support a decree declaring and enforcing the trust.").
"Fraud is an essential element, although it need not be actual fraud." Lollis, 291
S.C. at 529, 354 S.E.2d at 561.

We hold Appellants failed to meet their burden of establishing a constructive trust.
Anna and Hardik testified regarding the lease and purchase of the store and the
purchase of the residence. The documents in the record support their testimonies,
showing only AAHARVID as a party to the lease and only Anna as obligated on
the payment of the note for the lease. Further, the loan closing documents for the
purchase of the convenience store show that only AAHARVID was the borrower
and the obligor on the repayment of the $385,000 note and that Hardik and Anna
personally guaranteed the loan. Although Desai testified during trial that Ramesh
paid the down payment on the purchase of the convenience store, he did not know
where Ramesh obtained the funds and no documentary evidence in the record
shows who paid this down payment. The record contains a memorandum that
Desai signed indicating a down payment of $90,950 was made for the purchase of
the convenience store and stating that checks submitted as part of the loan request
documented this down payment; however, the record does not contain these
checks. Hardik and Anna testified they supplied the money for the down payment
using their own funds, which were funds they had earned through their respective
employment and through the convenience store's business. Because Anna, through
AAHARVID, was the lessee, the convenience store's earnings belonged to her.
We find the foregoing does not establish by clear, definite, and unequivocal
evidence that Ramesh paid any portion of the down payment on the purchase of the
convenience store.

Next, we find Vidhya's testimony that she considered herself and Ramesh to be
owners of the convenience store did not set forth clear, definite, and unequivocal
evidence that Ramesh was entitled to equitable ownership of the convenience
store. Vidhya testified she and Ramesh ordered inventory for and paid the bills of
the convenience store; however, Anna testified she gave them signatory authority
after she and Hardik moved to Virginia so that Vidhya and Ramesh could manage
the convenience store for them while they were gone. Further, Vidhya stated she
considered herself to be the owner of the convenience store but then admitted she
received W-2s from 2011 to 2016 indicating she was an employee of the store and
that she filed a claim for worker's compensation in 2012 in which she stated she
was an employee. Regarding Vidhya's assertions that she and Ramesh spent
$25,000 to make repairs to the convenience store, the record contains no
documentary evidence showing repairs were made or who paid for such repairs.
We find the foregoing testimony failed to establish clear, definite, and unequivocal
evidence of a constructive trust.

As to Appellants' contention Ramesh made a $40,000 down payment on the lease
for the convenience store, Anna—who executed the note and lease—stated no such
down payment was made. Although Desai stated Ramesh paid a down payment of
about $40,000, he was not certain of this amount and stated Ramesh paid Prakash,
not Desai. Anna denied Ramesh paid Prakash $40,000 for the lease. Further, the
record contains no documentary evidence showing a down payment was made.
We find the foregoing was not sufficient to establish Ramesh paid a down payment
on the lease of the convenience store.

Further, we find the evidence does not show Respondents violated any fiduciary
duty. Ramesh already owned a forty-percent interest in the Newberry hotel
through his membership in the LLC that purchased it. Vidhya testified Ramesh
had also owned a hotel in Concord, North Carolina. In our view, this evidence
shows Ramesh possessed knowledge of business dealings and did not rely on
Hardik or Anna to conduct business on his behalf. Thus, Appellants failed to
establish by strong and unequivocal evidence that Ramesh reposed a special
confidence in Hardik or Anna and the evidence therefore does not show they
violated any trust or fiduciary duty as to Ramesh. Rather, we find the evidence
shows Anna and Hardik purchased these properties using their own funds. Anna
stated Ramesh was only involved in the convenience store purchase to help
negotiate, and she and Hardik testified they provided all funds for the transaction
while Ramesh provided no funds. Hardik testified the down payment for the
purchase of the convenience store came from the convenience store's earnings and
that he personally contributed some funds that he earned through his employment.
Because Anna, through AAHARVID, was the lessee of the convenience store, the
convenience store's earnings belonged to her and her company. Hardik testified he
and Ramesh never discussed that the purchase of the residence or the convenience
store was intended for Ramesh's benefit. Hardik further stated Ramesh never
asked him to transfer the residence or convenience store to his name after he
obtained permanent resident status in 2013. Documentary evidence in the record,
including the closing documents, shows Hardik paid the earnest money and down
payments on the purchase of the residence, and he was the obligor on the note.
Furthermore, he testified he has paid all taxes, insurance, and mortgage payments
on the home since purchasing it. Based on the foregoing, we find Appellants failed
to satisfy their burden of showing Respondents engaged in fraud, bad faith, abuse
of confidence, or violation of a fiduciary duty.

For these reasons, we find Appellants failed to prove by clear, definite, and
unequivocal evidence that a constructive trust arose, and we affirm as to this issue.

II. Evaluation of Evidence

We hold Appellants have failed to demonstrate the circuit court erred by ignoring
evidence presented at trial or by relying upon the testimony of Respondents as to
the underlying facts and the interpretation of documentary evidence. See Regions
Bank v. Wingard Props., Inc., 394 S.C. 241, 248, 715 S.E.2d 348, 352 (Ct. App.
2011) ("[D]e novo review does not require an appellate court to disregard the
findings of the trial court or to ignore the fact that the trial court is in the better
position to assess the credibility of the witnesses."); id. at 248-49, 715 S.E.2d at
352 ("Moreover, the appellant is not relieved of the burden of convincing the
appellate court that the trial court committed error in its findings."). Here,
Vidhya's and Darshak's testimonies directly conflicted with Anna's and Hardik's
testimonies with regard to the ownership of the residence and convenience store.
The circuit court found Respondents' testimony more credible than Appellants' as
to the issue of ownership. Where the testimony conflicts, we do not disregard the
circuit court's credibility findings. We hold Appellants have failed to demonstrate
the circuit court erred in its findings.

III. Statute of Elizabeth

As to Appellants' argument the circuit court erred by failing to find the transfer
from AAHARVID, LLC to Hardik's new business violated the Statute of
Elizabeth, 2 we hold Appellants have failed to preserve this issue for appellate

2
S.C. Code Ann. § 27-23-10(A) (2007) ("Every . . . transfer[] and conveyance of
lands . . . goods [or] chattels . . . or of any . . . profit . . . out of the same, . . . made
to or for any intent or purpose to delay, hinder, or defraud creditors and others of
their just and lawful actions, suits, debts, accounts, damages, penalties, and
forfeitures must be deemed and taken . . . to be clearly and utterly void . . . ."); see
also Oskin v. Johnson, 400 S.C. 390, 397, 735 S.E.2d 459, 463 (2012) ("In
interpreting [the Statute of Elizabeth], this Court has held conveyances shall be set
aside under two conditions: First, where there was valuable consideration and the
transfer is made by the grantor with the actual intent to defraud; and, second,
review. See Bowers v. Thomas, 373 S.C. 240, 247, 644 S.E.2d 751, 754 (Ct. App.
2007) ("An issue not raised to and ruled upon by the court is not preserved for
appeal."). Appellants raised this issue for the first time in their proposed order, but
the circuit court did not rule on the issue. Furthermore, although the record
contains the circuit court's order denying Appellants' motion to reconsider, this
order likewise did not address this issue, and the record does not contain
Appellants' motion. See Summersell v. S.C. Dep't of Pub. Safety, 337 S.C. 19, 22,
522 S.E.2d 144, 145-46 (1999) ("[W]here an issue presented to the circuit court in
a civil case is not explicitly ruled upon in the final order, the issue must be raised
by an appropriate post-trial motion to be preserved for appellate review."); see also
Germain v. Nichol, 278 S.C. 508, 509, 299 S.E.2d 335, 335 (1983) ("[An
a]ppellant has the burden of providing this Court with a sufficient record upon
which this Court can make its decision."). Because the record does not indicate
Appellants raised this issue to the circuit court, we hold this issue is unpreserved
for appellate review.

IV. Violation of FCPSA

We hold the circuit court did not err by (1) failing to grant Respondents relief
under the FCPSA on the ground that Appellants failed to respond within the
statutory thirty-day period or (2) refusing to award attorney's fees and costs based
upon its finding that Appellants' case was not "frivolous."

"[A] judge's threshold decision to apply sanctions under the FCPSA sounds in
equity . . . ." Pres. Soc'y of Charleston v. S.C. Dep't of Health & Env't Control,
430 S.C. 200, 221, 845 S.E.2d 481, 492 (2020). "Therefore, an appellate court
must review the findings of fact with respect to the decision to grant sanctions
under the FCPSA by 'taking its own view of the evidence.'" Holmes v. E. Cooper
Cmty. Hosp., Inc., 408 S.C. 138, 167, 758 S.E.2d 483, 499 (2014) (quoting Father
v. S.C. Dep't of Soc. Servs., 353 S.C. 254, 260, 578 S.E.2d 11, 14 (2003)).

First, we hold the statute does not require a court to hold a party in default for
failing to respond within thirty days. Section 15-36-10(A)(4) sets forth the actions
for which an attorney or pro se litigant may be sanctioned. Subsection (D)
provides the "party . . . who allegedly violated subsection (A)(4) has thirty days to
respond to the allegations as that person considers appropriate." See
§ 15-36-10(D) (emphasis added). Subsection (E) provides a list of non-exclusive

where a transfer is made without actual intent to defraud but without valuable
consideration.").
factors that the circuit court must take into account in determining whether to
impose sanctions upon an attorney, party, or pro se litigant, including "the
response, if any, of the attorney, party, or pro se litigant to the allegation."
§ 15-36-10(E)(6) (emphasis added). The foregoing language demonstrates a
response is not mandatory and the deciding court has discretion whether to weigh
the response or lack thereof in favor of or against the defending party. Thus, we
hold the failure of Appellants to timely respond did not require the circuit court to
grant relief to Respondents.

Further, we hold the circuit court did not err by denying Respondents' request for
attorney's fees. In rendering its decision after the trial, the circuit court weighed
the conflicting testimonies and made credibility findings. It ultimately concluded
the evidence did not support Appellants' claims. Considering the evidence in our
own view, we find a reasonable attorney in the same circumstances would not
believe the case was frivolous as not reasonably founded in fact, was clearly not
warranted under existing law, or that the initiation or continuance of the suit was
intended merely to harass or injure the other party. See § 15-36-10(C)(1) ("An
attorney, party, or pro se litigant shall be sanctioned for a frivolous claim or
defense if the court finds the attorney, party, or pro se litigant failed to comply with
one of the following conditions: (a) a reasonable attorney in the same
circumstances would believe that under the facts, his claim or defense was clearly
not warranted under existing law and that a good faith or reasonable argument did
not exist for the extension, modification, or reversal of existing law; (b) a
reasonable attorney in the same circumstances would believe that his procurement,
initiation, continuation, or defense of the civil suit was intended merely to harass or
injure the other party; or (c) a reasonable attorney in the same circumstances would
believe that the case or defense was frivolous as not reasonably founded in fact or
was interposed merely for delay, or was merely brought for a purpose other than
securing proper discovery, joinder of proposed parties, or adjudication of the claim
or defense upon which the proceedings are based."); see also § 15-36-10(C)(2)
("Unless the court finds by a preponderance of the evidence that an attorney, party,
or pro se litigant engaged in advancing a frivolous claim or defense, the attorney,
party, or pro se litigant shall not be sanctioned."). In our view, the evidence shows
Vidhya and Darshak believed they were entitled to their requested relief and that
the facts were such as to warrant this relief. The evidence presented at trial was
simply insufficient to support their position. We therefore hold the circuit court
did not err by denying Respondents' request for attorney's fees and costs pursuant
to the FCPSA and we affirm.

CONCLUSION
For the foregoing reasons, the circuit court's rulings are

AFFIRMED.

MCDONALD and VINSON, JJ., and LOCKEMY, A.J., concur.