Moats Construction, Inc. v. Cicil R. Dyar

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

Moats Construction, Inc., Appellant,

v.

Cecil R. Dyar, Respondent.

Appellate Case No. 2022-001527

Appeal From Anderson County
R. Scott Sprouse, Circuit Court Judge

Unpublished Opinion No. 2025-UP-123
Heard September 11, 2024 – Filed April 9, 2025

AFFIRMED

David Lee Paavola, of Kenison Dudley & Crawford,
LLC, of Cayce, for Appellant.

James W. Logan, Jr., of Logan & Jolly, LLP, of
Anderson, for Respondent.

PER CURIAM: Moats Construction, Inc. (Moats) appeals the circuit court's
orders granting Cecil R. Dyar's (Dyar) motion for summary judgment and
calculating damages. We affirm.
1. We hold the circuit court did not err in granting Dyar's motion for summary
judgment. Moats alleged multiple causes of action to reduce the final amount due
under the agreement at issue. However, the agreement is clear that Moats took the
property "as is" and did not account for any offsets to the amount due in the form
sought by Moats. Additionally, the record reflects Moats agreed foreclosure was
the proper remedy and the only matter left for the circuit court was to determine
the amount due under the agreement. See Hawkins v. City of Greenville, 358 S.C.
280, 289, 594 S.E.2d 557, 562 (Ct. App. 2004) (explaining an appellate court
"applies the same standard which governs the trial court" when reviewing the grant
of a summary judgment motion); Kitchen Planners, LLC v. Friedman, 440 S.C.
456, 463, 892 S.E.2d 297, 301 (2023) ("[T]he proper standard is the 'genuine issue
of material fact' standard set forth in the text of . . . Rule [56(c), SCRCP].");
Hawkins, 358 S.C. at 289, 594 S.E.2d at 562 ("Summary judgment is proper when
'there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.'" (quoting Rule 56(c), SCRCP));
Crenshaw v. Erskine Coll., 432 S.C. 1, 24, 850 S.E.2d 1, 13 (2020) ("Actions on a
contract must be based on the terms of the contract."); Ellis v. Taylor, 316 S.C.
245, 248, 449 S.E.2d 487, 488 (1994) ("[This] court's duty is to enforce the
contract made by the parties regardless of its wisdom or folly, apparent
unreasonableness, or the parties' failure to guard their rights carefully.");
Crenshaw, 432 S.C. at 25, 850 S.E.2d at 13 ("No jury—nor any judge—is
permitted by law to rewrite a contract to impose liability based on some vague
personal sense of what is fair. The contract in this case is written . . . and our
decision is based on its written terms."); Ellie, Inc. v. Miccichi, 358 S.C. 78, 93,
594 S.E.2d 485, 493 (Ct. App. 2004) ("If its language is plain, unambiguous, and
capable of only one reasonable interpretation, no construction is required and the
contract's language determines the instrument's force and effect.").

2. We hold the circuit court did not err in refusing to adjust its initial calculation of
damages because Moats had in its possession evidence that would have aided the
circuit court but decided not to present it. At the damages hearing, Moats testified
it hired an expert to contest Dyar's calculation of damages; however, the expert
refused to testify because he had not been paid. We find the circuit court properly
declined to adjust its calculation of damages following Moats's subsequent proffer
of testimony and evidence at the hearing on Moats's motion to reconsider. Moats
did not timely raise the issue of incorrect calculations. The proper time to do so
would have been at the first damages hearing. See Eades v. Palmetto
Cardiovascular & Thoracic, PA, 422 S.C. 196, 200 n.3, 810 S.E.2d 848, 850 n.3
(2018) ("In order for an issue to be preserved for appellate review, the issue must
have been timely raised by the appellant with sufficient specificity and ruled upon
by the trial court."); Spreeuw v. Barker, 385 S.C. 45, 68–69, 682 S.E.2d 843, 855
(Ct. App. 2009) (finding this court could not consider a document that was
submitted to the family court "only as an attachment to [a] Rule 59(e)[, SCRCP]
motion"); Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App.
1990) ("A party cannot use Rule 59(e)[, SCRCP] to present to the court an issue
the party could have raised prior to judgment but did not.").

AFFIRMED.

WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.