Carpenter v. Measter

• Decision Date: 06 February 2013
• Docket Number: 2013-UP-066
• Parties: Dudley N. Carpenter and Jane G. Carpenter, Respondents/Appellants, v. Charles L. Measter and Barbara P. Measter, Appellants/Respondents. Appellate Case No. 2011-192366
• Court: South Carolina Court of Appeals

Dudley N. Carpenter and Jane G. Carpenter, Respondents/Appellants, v. Charles L. Measter and Barbara P. Measter, Appellants/Respondents.

Appellate Case No. 2011-192366

No. 2013-UP-066

Court of Appeals of South Carolina

February 6, 2013

UNPUBLISHED OPINION

Heard December 12, 2012

Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

D Ryan McCabe and Brian C. Gambrell, of Rogers, Townsend &amp Thomas, PC, of Columbia, for Appellants/Respondents.

Thomas C. Hildebrand, Jr., of Haynsworth Sinkler Boyd, P.A., of Charleston, for Respondents/Appellants.

PER CURIAM:

This case involves a contract to sell a condominium unit in Bohicket Marina Village, a horizontal property regime on Seabrook Island. Appellants/Respondents, Charles and Barbara Measter (Sellers), seek review of the circuit court's failure to grant a directed verdict or judgment notwithstanding the verdict (JNOV) on the breach of contract claim filed by Respondents/Appellants, Dudley and Jane Carpenter (Purchasers). In their cross-appeal, Purchasers challenge the circuit court's granting of Sellers' motion for a directed verdict on Purchasers' claim for violation of the Residential Property Condition Disclosure Act (Disclosure Act), S.C. Code Ann. § 27-50-10 to -270 (2007 & Supp. 2012). We affirm in part, reverse in part and remand.

1. Initially, we reject Sellers' argument that the circuit court lacked jurisdiction to issue its order dated February 23, 2010 (Sellers' Issue 1). Sellers challenge this order as an untimely revision of the circuit court's previous decision granting partial summary judgment to Sellers. They argue that Purchasers' voluntary dismissal of their claim for violation of the Unfair Trade Practices Act ended the period provided by Rule 54(b), SCRCP, for revision of the previous decision. Rule 54(b), SCRCP, provides that an order or other form of decision adjudicating fewer than all the claims and omitting an express determination that there is "no just reason for delay, " is subject to revision at any time before "the entry of judgment adjudicating all the claims . . . ."

Here Circuit Court Judge Markley Dennis, Jr., issued a Form 4 judgment dated September 3, 2009, that granted Sellers' motion for summary judgment as to Purchasers' claims for fraud and negligent misrepresentation. The judgment expressly denied the motion as to Purchasers' claim for violation of the Unfair Trade Practices Act but remained silent as to Purchasers' remaining claims for breach of contract breach of contract accompanied by a fraudulent act, and violation of the Disclosure Act. Judge Dennis's February 23, 2010 order clarified his intent, as it existed on September 3, 2009, to deny Sellers' summary judgment motion as to these remaining three claims. The February 23, 2010 order explained that (1) Judge Dennis's September 3, 2009 ruling was based on the economic loss rule; (2) as a result, he intended to grant summary judgment as to Purchasers' tort claims; and (3) he intended to deny summary judgment as to Purchasers' contract-based claims and statutory claims.

Because the February 23, 2010 order did not take any new action but merely placed in the record evidence of Judge Dennis's intent as it existed on September 3, 2009, Judge Dennis properly directed that the February 23, 2010 order was to take effect "nunc pro tunc." See Ex parte Strom, 343 S.C. 257, 264, 539 S.E.2d 699, 702-03 (2000) ("Nunc pro tunc orders can only be used to place in the record evidence of judicial action that has actually taken place. A prerequisite for a nunc pro tunc order . . . is some previous action by the court that is not adequately reflected in its record." (citation omitted)); see also Black's Law Dictionary 1174 (9th ed. 2009) (explaining that "nunc pro tunc" is Latin for "now for then" and that the phrase means having retroactive legal effect through a court's inherent power); id. ("When an order is signed 'nunc pro tunc' as of a specified date, it means that a thing is now done which should have been done on the specified date." (quoting 35A C.J.S. Federal Civil Procedure § 370 (1960))).

The nunc pro tunc effect of the February 23, 2010 order was actually contemplated by a previous Form 4 judgment dated November 4, 2009, and signed by Circuit Court Judge Deadra Jefferson. Sellers contend that this judgment was a "judgment adjudicating all the claims" for purposes of Rule 54(b). However, this judgment indicated that although Purchasers were voluntarily dismissing their claim for violation of the Unfair Trade Practices Act, they were going to file a motion seeking clarification of Judge Dennis's September 3, 2009 judgment.^[1] While Judge Jefferson checked the boxes next to the words "ACTION DISMISSED" and "Rule 41(a), SCRCP, " she expressly conditioned such a dismissal on Judge Dennis's contemplated ruling on Purchasers' motion to clarify:

[I]n the interests of justice and for clarity of the record for appellate purposes [Purchasers] will file a Motion to Clarify Judge Dennis'[s] order. After Judge Dennis's consideration of the motion if there is remaining any cause of action the matter will be restored to the jury trial roster for trial and if none remains the matter will be ended with prejudice so that the parties may avail themselves of the appellate process.

(emphasis added). Hence, Judge Jefferson's Form 4 judgment was conditional and did not qualify as a "judgment adjudicating all the claims" for purposes of Rule 54(b). Therefore, Judge Dennis had jurisdiction to issue his order dated February 23, 2010, and he properly gave the order retroactive effect.

2. As to Purchasers' breach of contract claim (Sellers' Issues 2 and 4), the circuit court properly declined to rule as a matter of law that there existed no breach of contract. See Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006) (holding that in ruling on a motion for a directed verdict, the trial court must view the evidence and the inferences reasonably drawn therefrom in the light most favorable to the party opposing the motion); McMillan v. Oconee Mem'l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006) (holding that the trial court should deny a directed verdict motion when either the evidence yields more than one inference or its inference is in doubt). There is ample evidence of Sellers' breach of the contract's implied covenant that the parties must act in good faith and deal fairly with each other. See Williams v. Riedman, 339 S.C. 251, 267, 529 S.E.2d 28, 36 (Ct. App. 2000) ("[T]here exists in every contract an implied covenant of good faith and fair dealing." (citation omitted)). We note that Purchasers did not attempt to assert the covenant of good faith and fair dealing as an independent cause of action, as argued by Sellers. See RoTec Servs., Inc. v. Encompass Servs., Inc., 359 S.C. 467, 473, 597 S.E.2d 881, 884 (Ct. App. 2004) (holding that the implied covenant of good faith and fair dealing is not an independent cause of action separate from the claim for breach of contract). Rather, Purchasers asserted a cause of action for breach of contract, and Sellers' liability may be based on a breach of any of the contract's terms, including the implied covenant of good faith, as long as the breach caused damage to Purchasers. See Williams, 339 S.C. at 274, 529 S.E.2d at 40 ("[T]he implied covenant of good faith and fair dealing has been viewed as another contract term." (emphasis added)).

In the light most favorable to Purchasers, the evidence shows that Sellers knew of the structural problems with the regime's buildings and the resulting class action litigation that ultimately yielded funds with which to reimburse unit owners for repairs. Further, in the light most favorable to Purchasers, Sellers' admitted consultations with multiple attorneys as to whether they had a duty to disclose this information to Purchasers demonstrates Sellers' awareness that the buildings' structural problems and impending repairs directly affected the unit they were selling to Purchasers. Therefore, we affirm the circuit court's denial of Sellers' motions for a directed verdict and JNOV on the breach of contract claim. See Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999) (holding that an appellate court will only reverse the trial court's ruling when no evidence supports the ruling or when the ruling is controlled by an error of law). Likewise, to the extent that Sellers adequately objected and assigned error to the jury instruction on the implied covenant of good faith, we affirm the instruction. See Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 495-96, 514 S.E.2d 570, 574 (1999) (holding that a jury charge that is substantially correct and covers the law does not require reversal).

3. As to Sellers' argument that the contract's disclaimer and other provisions required dismissal of the breach of contract claim (Sellers' Issue 3), the remedy they seek is reversal of the circuit court's "rulings that did not dismiss [Purchasers'] breach of contract claims as a matter of law." However, the record does not show that Sellers raised these precise issues in their directed verdict motion because Sellers did not include in the record a copy of their pre-trial brief, on which they relied in seeking a directed verdict. Further, the circuit court did not address these precise issues in denying the directed verdict motion as to the breach of contract claim. Therefore, these issues are not preserved for review. See Rule 210(h), SCACR (stating that the appellate court will not consider any fact which does not appear in the Record on Appeal); In re McCracken, 346 S.C. 87, 93, 551 S.E.2d 235, 238 (2001) (holding that a JNOV...