Diminich v. 2001 Enterprises, Inc., 0858

• Decision Date: 22 October 1986
• Docket Number: No. 0858,0858
• Citation: 292 S.C. 141,355 S.E.2d 275
• Parties: Samuel U. DIMINICH and H.A. Anderson, Inc., Appellants, v. 2001 ENTERPRISES, INC., Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 275

355 S.E.2d 275

292 S.C. 141

Samuel U. DIMINICH and H.A. Anderson, Inc., Appellants, v. 2001 ENTERPRISES, INC., Respondent.

No. 0858.

Court of Appeals of South Carolina.

Heard Oct. 22, 1986.

Decided Jan. 12, 1987.

George M. Hearn, Jr., of Stevens, Stevens, Thomas, Hearn & Hearn, P.A., and Howell V. Bellamy, Jr., of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, P.A., Myrtle Beach, for appellants.

William E. Lawson, of McCutcheon, McCutcheon & Baxter, Conway, for respondent.

GARDNER, Judge:

Samuel U. Diminich (Diminich) and H.A. Anderson, Inc., (Anderson) sued 2001 Enterprises, Inc., (2001) by a complaint which alleged a breach of express and implied covenants to quiet enjoyment of leased premises. 2001's answer, in effect, denied that under the instruments in question, there was either an express or implied warranty of quiet enjoyment; 2001 moved for judgment on the pleadings which was granted by the appealed order. We reverse and remand.

A motion for judgment on the pleadings will be sustained only where the pleadings are so defective that, taking all the facts alleged in the pleadings as admitted, no cause of action or defense is stated. Rosenthal v. Unarco Industries, Inc., 278 S.C. 420, 297 S.E.2d 638 (1982). Wooten v. Standard Life and Cas. Ins. Co., 239 S.C. 243, 122 S.E.2d 637 (1961). And we observe that motions for judgment on the pleadings under Rule 12(c), S.C.R.C.P., can be considered as motions for summary judgment.

In the case before us the sequence of the lease transactions presented by the record can best be demonstrated diagrammatically thusly:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In summary the complaint alleges (1) that on August 15, 1977, Hawaiian Village accepted the assignment of the lease of 24 acres of land fronting on Highway 17 in North Myrtle Beach, South Carolina, (2) that thereafter Hawaiian Village, Inc., subleased a portion of this property to Anderson on March 10, 1978, and that thereafter Anderson built a restaurant on the land subleased to him and operated it from 1978 until 1981, (3) that on October 2, 1981, Hawaiian Village assigned its leasehold interest to respondent 2001, (4) that on June 1, 1982, Anderson assigned its interest in the subleased property to appellant Diminich, (5) that prior to the acceptance of the assignment from Anderson, Diminich, through his attorney, inquired of 2001 whether it would accept payments from him on the subleased property and that 2001 agreed to accept $10,000 per year payment from Diminich provided that Diminich pay an additional $150 during the first year of the assignment, (6) that thereafter Diminich paid 2001 $10,000 as rent for the subleased property during the 1982-83 summer season, plus an additional $150 which was tendered to 2001 by Diminich as interest on the $10,000 in accordance with 2001's requirement, (7) that 2001 accepted the rent from Diminich and in return covenanted and guaranteed that Diminich and Anderson could quietly enjoy the subleased property until 1997 when the main lease expired, (8) that on September 1, 1982, 2001 defaulted on the rent payment owed to the property owner, and (9) that as a result of 2001's default, Diminich was evicted from the subleased property by the order of a magistrate and that thereby Diminich and Anderson lost their right to occupy the leased property for a period of 15 years.

The issues presented are whether the complaint alleged sufficient facts to constitute a cause of action against 2001 for breach of either a written, implied or oral contract of quiet enjoyment.

The appealed order adopted the general rule that there is no privity of contract between...