Richard D. White v. FT Acquisitions, 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

Richard D. White, Appellant,

v.

FT Acquisitions, LLC; Commercial Food Service Repair,
Inc.; and Kurt Herwald, Respondents.

Appellate Case No. 2023-000155

Appeal From Greenville County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2025-UP-192
Submitted May 1, 2025 – Filed June 11, 2025

AFFIRMED

Kimberly Truluck Thomason and Devon Marc Puriefoy,
both of Truluck Thomason, LLC, of Greenville, for
Appellant.

Elizabeth Cameron Edmondson and Giles M. Schanen,
Jr., of Maynard Nexsen PC, of Greenville, for
Respondents.

PER CURIAM: Richard D. White appeals the circuit court's order granting
summary judgment in favor of FT Acquisitions, LLC, Commercial Food Service
Repair, Inc., and Kurt Herwald (collectively, Respondents) on White's claims for
breach of contract, breach of contract accompanied by a fraudulent act, fraud in the
inducement, and violation of the South Carolina Uniform Securities Act of 2005,
and on Respondents' counterclaims for breach of contract as to a General Waiver
and Release Agreement (the General Release) and breach of contract as to a
Subordination Agreement (the Subordination Agreement). On appeal, White
argues the circuit court erred in granting summary judgment because (1) a different
circuit court judge previously denied Respondents' motion for summary judgment
on the same grounds, facts, and evidence and (2) there were genuine issues of
material fact for each claim and counterclaim. We affirm pursuant to Rule 220(b),
SCACR.

1. We hold the circuit court did not abuse its discretion in granting Respondents'
renewed motion for summary judgment. See Dorrell v. S.C. Dep't of Transp., 361
S.C. 312, 325, 605 S.E.2d 12, 18 (2004) (applying the abuse of discretion standard
of review when reviewing the court's consideration of a renewed motion for
summary judgment); State v. Jones, 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016)
("An abuse of discretion occurs when the [circuit] court's ruling is based on an
error of law or, when grounded in factual conclusions, is without evidentiary
support."); Blyth v. Marcus, 335 S.C. 363, 366, 517 S.E.2d 433, 434 (1999) ("A
defendant can bring a subsequent summary judgment motion after his first motion
had been denied."); id. at 367, 517 S.E.2d at 434 ("The rationale behind these cases
is that the denial of a motion for summary judgment is an interlocutory decision
which the trial judge can reconsider until the end of the trial."); Dorrell, 361 S.C. at
325, 605 S.E.2d at 18 ("That a different [circuit court] judge previously denied the
motion [does] not preclude [a party] from renewing its motion once new evidence
came to light."); Ballenger v. Bowen, 313 S.C. 476, 477, 443 S.E.2d 379, 380
(1994) ("The denial of summary judgment does not establish the law of the case,
and the issues raised in the motion may be raised again later in the proceedings by
a motion to reconsider the summary judgment motion or by a motion for a directed
verdict.").

2. We hold the circuit court did not err in granting summary judgment in favor of
Respondents on all claims and counterclaims. See Fleming v. Rose, 350 S.C. 488,
493, 567 S.E.2d 857, 860 (2002) ("When reviewing the grant of summary
judgment, the appellate court applies the same standard applied by the [circuit]
court pursuant to Rule 56(c) [of the South Carolina Rules of Civil Procedure].");
Kitchen Planners, LLC v. Friedman, 440 S.C. 456, 459, 892 S.E.2d 297, 299
(2023) ("[T]he moving party is entitled to summary judgment 'if the [evidence
before the court] show[s] 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.'" (alterations in
original) (quoting Rule 56(c), SCRCP)); Fleming, 350 S.C. at 493-94, 567 S.E.2d
at 860 ("When determining if any triable issues of fact exist, the evidence and all
reasonable inferences must be viewed in the light most favorable to the
non-moving party."); Kitchen Planners, 440 S.C. at 463, 892 S.E.2d at 301 ("[I]t is
not sufficient for a party to create an inference that is not reasonable or an issue of
fact that is not genuine." (quoting Town of Hollywood v. Floyd, 403 S.C. 466, 477,
744 S.E.2d 161, 166 (2013))). First, we hold there were no genuine issues of
material fact as to White's claims for breach of contract, breach of contract
accompanied by a fraudulent act, and violation of the South Carolina Uniform
Securities Act of 2005 because these causes of action indisputably originated
before White executed the General Release, and the General Release
unambiguously released all of these claims against Respondents. See Williams v.
Gov't Emps. Ins. Co. (GEICO), 409 S.C. 586, 594, 762 S.E.2d 705, 710 (2014)
("The construction of a clear and unambiguous contract is a question of law for the
court to determine."); C.A.N. Enterprises, Inc. v. S.C. Health & Hum. Servs. Fin.
Comm'n, 296 S.C. 373, 377, 373 S.E.2d 584, 586 (1988) ("When a contract is
unambiguous, clear and explicit, it must be construed according to the terms the
parties have used, to be taken and understood in their plain, ordinary and popular
sense."). The General Release stated it was to apply to "any and all actions, causes
of actions, claims . . . arising out of any matter, happening, or thing" up until White
executed the General Release. It likewise stated it included "a release of any and
all claims . . . whether in tort, contract or equity, under federal or state statutory or
common law" and that "[i]t is the parties' intent to release all claims which can
legally be released but no more than that." This language is unambiguous and
applied to all claims, not just employment claims as White asserts. Although
White argues his communication with Herwald around the time of the execution of
the General Release indicated it was not intended to cover all claims, the parol
evidence rule prevents extrinsic evidence from being introduced to create an
ambiguity when the contract is otherwise unambiguous. See Beaufort Cnty. Sch.
Dist. v. United Nat. Ins. Co., 392 S.C. 506, 525, 709 S.E.2d 85, 95 (Ct. App. 2011)
("Extrinsic evidence may not be used to create an ambiguity in an otherwise
unambiguous policy."); McGill v. Moore, 381 S.C. 179, 188, 672 S.E.2d 571, 576
(2009) ("The parol evidence rule prevents the introduction of extrinsic evidence of
agreements or understandings contemporaneous with or prior to execution of a
written instrument when the extrinsic evidence is to be used to contradict, vary or
explain the written instrument."). Accordingly, White released his causes of action
for breach of contract, breach of contract accompanied by a fraudulent act, and
violation of the South Carolina Uniform Securities Act of 2005 when he executed
the General Release.
Second, we hold White's claim for fraud in the inducement of the General Release
was barred by the tender back rule. As consideration for the General Release,
White received $300,000 in severance payments, which he at no point returned to
Respondents. See State Farm Mut. Auto. Ins. Co. v. Turner, 303 S.C. 99, 102, 399
S.E.2d 22, 23 (Ct. App. 1990) ("[I]t is well settled that one who seeks to avoid the
effects of a release must first return or tender consideration paid therefor."); Taylor
v. Palmetto State Life Ins. Co., 196 S.C. 195, 199, 12 S.E.2d 708, 710 (1940)
("This rule obtains even though the contract of settlement was induced by the fraud
or false representations of the other party."). Although White argues the severance
payments were allocated solely to the non-compete clause in the General Release,
the General Release unambiguously attached the consideration to the entirety of
the agreement, not solely the non-compete clause. The release did not indicate the
payments applied strictly to the non-compete clause; rather, it stated White agreed
he received valuable consideration in exchange for entering the agreement as a
whole. Likewise, White was not otherwise entitled to receive the severance
payments under his employment agreement because he voluntarily resigned his
position. See id. at 200-01, 12 S.E.2d at 710 (stating that an exception to the tender
back rule is "where the party seeking rescission would be entitled in any event to
retain the money or the property received, and admittedly due, he need not return
or tender back the same as a condition precedent to relief").

Third, we hold there were no genuine issues of material fact as to Respondents'
counterclaims. As to White's breach of the General Release, White agreed to
release all claims against Respondents, and subsequently breached the General
Release when he filed the present action. See Williams, 409 S.C. at 594, 762
S.E.2d at 710 ("The construction of a clear and unambiguous contract is a question
of law for the court to determine."); C.A.N. Enterprises, 296 S.C. at 377, 373 S.C.
at 586 ("When a contract is unambiguous, clear and explicit, it must be construed
according to the terms the parties have used, to be taken and understood in their
plain, ordinary and popular sense."). Although White argues the General Release
only provided an affirmative defense for Respondents because it was not a
covenant not to sue, this argument was not preserved because White did not raise it
to the circuit court. 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."). Next, as to the breach of the Subordination
Agreement, the agreement unambiguously prohibited White from filing suit to
recover on his Junior Subordinated Promissory Note until the senior debt was
satisfied, and White filed the present action before such occurred. Although White
argues paragraph three of the Subordination Agreement required Respondents to
provide White written notice of Respondents' default before he was prohibited
from filing suit, it only provided Respondents the option to pay White certain
payments until it provided written notice, and it did not specifically pertain to
paragraph nine, which prohibited White from commencing an action before the
superior debt was satisfied. Accordingly, there were no genuine issues of material
fact as to whether White breached the General Release as well as the Subordination
Agreement. See C.A.N. Enterprises, 296 S.C. at 377, 373 S.C. at 586 ("When a
contract is unambiguous, clear and explicit, it must be construed according to the
terms the parties have used, to be taken and understood in their plain, ordinary and
popular sense.").

AFFIRMED. 1

THOMAS, KONDUROS, and VINSON, JJ., concur.

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