Ballenger Corp. v. City of Columbia

Decision Date27 March 1985
Docket NumberNo. 0481,0481
CourtSouth Carolina Court of Appeals
PartiesBALLENGER CORPORATION, Respondent, v. CITY OF COLUMBIA, S.C., Appellant. . Heard

James S. Meggs, Columbia, for appellant.

Carl F. Muller of Wyche, Burgess, Freeman & Parham, Greenville, for respondent.

GOOLSBY, Judge:

In this breach of contract action, the City of Columbia appeals from an order granting the respondent Ballenger Corporation summary judgment as to liability. We affirm in part, reverse in part and remand for trial.

The pleadings, depositions, and exhibits establish that, with the assistance of the Environmental Protection Agency (EPA), the City of Columbia developed a design for a multi-phase regional sewage collection system. An EPA grant was to fund a portion of the system's total construction cost.

Ballenger, a general contractor, submitted a bid on a phase of the project involving the construction of sanitary sewer interceptors. The City accepted Ballenger's bid on September 10, 1980, by the adoption of a Resolution of Award. The resolution accepting the award provided that it was "adopted subject to the approval of the [EPA]."

B.P. Barber & Associates, Inc., the City's engineering consultant, informed Ballenger on October 29, 1980, of the City's acceptance of its bid. Barber advised Ballenger that the "City's acceptance is subject to approval of contract documents by the [EPA]."

Two days later, Ballenger wrote Barber asking that it be permitted to proceed with certain work. In its letter, Ballenger stated it understood that the work it would perform "would not be eligible for payment if final approval by [the] EPA was not forthcoming and the City could not award the subject contract." Barber replied to Ballenger's letter on November 6, 1980, and told Ballenger that "[a]ny work performed prior to approval of all contract documents by [the] EPA is at your own risk" and that "[s]hould [the] EPA not approve the contract documents, the City will make no payment for the work done."

The City and Ballenger executed a formal contract on November 13, 1980.

Thereafter, on November 21, 1980, the South Carolina Electric & Gas Company (SCE & G) announced it was undertaking a study concerning the feasibility of building a dam across the lower Saluda River. The project, if built, would inundate the area where the City of Columbia proposed to construct its sewage system.

The City informed EPA of SCE & G's plans and on January 9, 1981, the EPA advised the City that it could "only proceed with the construction of the project as designed if an unqualified easement" could be obtained from SCE & G.

The City thereupon cancelled the contract claiming that the "EPA's failure to approve all the contract documents" made cancellation necessary. This action followed.

Both the City and Ballenger made motions for summary judgment. The circuit court ruled as a matter of law that Ballenger was entitled to summary judgment as to liability. The circuit court's order, as we read it, held that the City's cancellation of the contract was not the result of the EPA's refusal to approve the contract documents and that EPA approval of the contract documents was not a condition that would qualify the City's duty of performance under the contract.

Summary judgment is appropriate only where it is perfectly clear that no genuine issue of material fact is involved and inquiry into the facts is not desirable to clarify application of the law. Hook v. Rothstein, 275 S.C. 187, 268 S.E.2d 288 (1980), appeal after remand, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.1984), cert. denied, 283 S.C. 64, 320 S.E.2d 35 (1984); Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E.2d 812 (1979). In considering whether the circuit court correctly granted Ballenger's motion for summary judgment, we must construe all ambiguities, conclusions, and inferences arising from the evidence most strongly against Ballenger. South Carolina Electric & Gas Co. v. Combustion Engineering, Inc., 283 S.C. 182, 322 S.E.2d 453 (Ct.App.1984).

Our review of the record convinces us that genuine issues of material fact exist concerning whether the City's performance of the contract with Ballenger was subject to a condition precedent, whether the condition precedent was the EPA's approval of all contract documents, and whether the EPA failed to approve all the contract documents. The circuit court erred ,therefore, in granting summary judgment.

We realize that the formal contract executed by the City and Ballenger makes no mention of EPA approval of contract documents; however, other documents contained in the record do so.

Under proper circumstances parol evidence of a condition precedent may be received to show that a written instrument did not become effective; but ... the condition precedent must be neither inconsistent with the instrument itself, nor of such a character that its performance would render the instrument wholly ineffective or nugatory.

Walker & Laberge Company, Inc. v. First National Bank of Boston, 206 Va. 683 at...

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9 cases
  • Parker v. Shecut
    • United States
    • South Carolina Court of Appeals
    • May 22, 2000
    ...dependent on the intent of the parties to be gathered from the language they employ." Id. (quoting Ballenger Corp. v. City of Columbia, 286 S.C. 1, 5, 331 S.E.2d 365, 368 (Ct.App.1985)). Under certain circumstances, a court may imply a condition precedent to an agreement, but one "may not b......
  • Harmon Cable Communications of Nebraska Ltd. Partnership v. Scope Cable Television, Inc.
    • United States
    • Nebraska Supreme Court
    • April 19, 1991
    ...Fred Burgos Const. Co., 477 So.2d 335 (Ala.1985); Ide v. Joe Miller & Co., 703 P.2d 590 (Colo.App.1984); Ballenger Corp. v. City of Columbia, S.C., 286 S.C. 1, 331 S.E.2d 365 (1985); Cramer v. Metropolitan Savings, supra. Where the intent of the parties is not clear, the disputed language i......
  • Flair Broadcasting Corp. v. Powers
    • United States
    • U.S. District Court — Southern District of New York
    • March 16, 1990
    ...33 S.E.2d 501, 509-10 (1945)). On the question of whether a term is a condition precedent, the case of Ballenger Corp. v. City of Columbia, 286 S.C. 1, 331 S.E.2d 365, 368 (Ct.App.1985) is instructive. There, the court set forth the relevant law: Whether a stipulation in a contract constitu......
  • Cavalier Pools & Spas, Inc. v. The Fripp Co.
    • United States
    • South Carolina Court of Appeals
    • July 14, 2005
    ... ... duty of immediate performance arises. Ballenger Corp. v ... City of Columbia, 286 S.C. 1, 5, 331 S.E.2d 365, 368 ... ...
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