Ginn-LA University Club Ltd., LLLP v. Amelia Capital III, LLC
| Decision Date | 06 February 2013 |
| Docket Number | 2013-UP-067 |
| Court | South Carolina Court of Appeals |
| Parties | Ginn-LA University Club Ltd., LLLP, Respondent, v. Amelia Capital III, LLC, Appellant. Appellate Case No. 2011-194106 |
UNPUBLISHED OPINION
Heard December 12, 2012
Appeal From Richland County Doyet A. Early, III, Circuit Court Judge
Keith D. Munson and Michael James Bogle, both of Womble Carlyle Sandridge & Rice, LLP, of Greenville, for Appellant.
Carl F. Muller, of Carl F. Muller, Attorney at Law, P.A., of Greenville; John Carroll Moylan, III, and Matthew Terry Richardson, both of Wyche, PA, of Columbia, for Respondent.
In this breach of contract case, Amelia Capital III, LLC (Amelia) appeals a jury verdict in favor of Ginn-LA University Club Ltd., LLLP (Ginn). On appeal, Amelia argues the circuit court erred in (1) failing to exclude expert testimony as to the future costs for environmental remediation; (2) failing to admit into evidence certified tax assessor records as public records or self-authenticating documents; (3) refusing to allow Amelia to call Ginn's in-house counsel as a rebuttal witness; and (4) failing to instruct the jury that South Carolina law requires that contracts of indemnity be subject to strict construction. We affirm as modified.
On August 11, 2005, Ginn and Amelia executed an Agreement for Purchase and Sale, wherein Ginn agreed to purchase, and Amelia agreed to sell, approximately 239.50 acres of real property located in Blythewood, South Carolina (the Property). At the time of the contract, both Amelia and Ginn were aware of the existence of environmental contamination on the Property; however, the full extent of the contamination was unknown to either party.
Prior to executing the contract, Ginn retained an environmental consultant, QORE, Inc. (QORE), to inspect the Property and identify the environmental contamination. QORE found two locations with environmental contamination on the Property (1) in the area of a maintenance shed, and (2) in the area of two small above-ground storage tanks. Subsequently, QORE reported its findings to Ginn and the South Carolina Department of Health and Environmental Control (DHEC). In response, DHEC required the installation of a monitoring well in the area around the above-ground storage tanks. QORE then prepared an assessment proposal for the installation of the monitoring well, which was approved by DHEC on July 25, 2005.
The sale of the Property closed on October 18, 2005. To facilitate the sale of the Property, the parties negotiated a limited indemnity provision to the contract, stating as follows:
5.2 Environmental Indemnity. Seller and Purchaser acknowledge that there have been Hazardous Materials disposed of or released upon the Land and certain adjoining land owned by Purchaser as set forth in the Environmental Reports (the "Contamination"). Seller has authorized that notification of the Contamination be provided to the appropriate authorities at the South Carolina Department of [Health and] Environmental Control ("SCDHEC") and SCDHEC has required that additional assessment and removal measures be conducted and reported back to SCDHEC ("Additional Work"). Seller hereby agrees to indemnify, defend and hold harmless Purchaser from and against any and all claims, losses, liabilities, damages costs and expenses, including attorney's fees and court costs arising from or relating to the Additional Work to the extent required to achieve "no further action" status, or its equivalent, from SCDHEC for the Contamination. All terms and provisions of this Section 5.2 shall survive the Closing or termination of this Agreement until such time as SCDHEC has issued a "no further action" letter, or its equivalent, whereupon this Environmental Indemnity shall terminate.
After the closing, QORE reported its testing of the monitoring well to DHEC on October 21, 2005. DHEC sent a letter to Ginn suggesting additional remediation activities to the Property. Ginn later consulted with DHEC and created a remediation plan, which was reviewed and approved by DHEC. Thereafter Ginn retained the firm of GEL Engineering (GEL) to perform the environmental assessment and cleanup of the Property. Ginn has continued to perform remediation activities on the Property, under the supervision of DHEC. Additionally, Ginn has developed and subdivided large portions of the Property into individual lots, which have either been sold or are being marketed for sale. To date, DHEC has still not issued a "no further action" letter.
On January 21, 2010, Ginn filed suit against Amelia for a number of causes of action related to Amelia's alleged breach of the indemnity provision of the contract. In the complaint Ginn alleged it had incurred costs of $351, 971.80 in performing environmental remediation on the Property. Additionally, Ginn alleged in the complaint and sought to recover at trial any expenses associated with additional work that may be required by DHEC in order to achieve "no further action" status, or its equivalent. A jury trial was held from April 4 to April 5, 2011. At the end of the trial, Ginn elected to pursue only its breach of contract claim.
On April 6, 2011, the jury returned a verdict in Ginn's favor in the amount of $939, 877.12. Amelia filed a motion for a new trial absolute, or in the alternative, for a new trial nisi remittitur on April 15, 2011. A hearing was held on both motions. By order dated May 18, 2011, the court denied Amelia's motion for a new trial. This appeal followed.
Amelia argues that the circuit court erred in allowing QORE's Environmental Department Manager, Robert MacPhee, to provide expert testimony as to alleged future damages.
Here, Amelia made a pre-trial motion seeking to exclude any expert testimony from MacPhee because his "designation" as an expert witness came too late. The circuit court subsequently ruled "Mr. MacPhee . . . will be allowed to testify as any lay witness can testify to [sic], but he will not be allowed to give opinions." MacPhee later testified before the jury that he had had submitted a bid of $598, 000 to complete the remedial services.
Although it is a close question, we believe this testimony constitutes fact testimony. The statements merely relayed the fact that MacPhee submitted a bid to complete the remediation for $598, 000 and that he was willing to the do the work for this amount; the statements do not set forth an opinion that $598, 000 worth of work was reasonably necessary to complete the remediation. See Rule 702, SCRE ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."); Watson v. Ford Motor Co., 389 S.C. 434, 445-46, 699 S.E.2d 169, 175 (2010) (citing Rules 602 and 701, SCRE) ("[A] lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training.").
Amelia further argues that to recover future damages, Ginn must provide some evidentiary basis for future work that has not yet been performed at the Property upon which the jury can rely in reaching a verdict.
We agree with Amelia's implicit argument that without expert evidence of the necessity of $598, 000 worth of work to achieve "no further action" status, the inference of necessity the jury must draw from the mere fact that MacPhee submitted a $598, 000 bid would be speculative. See Winters v. Fiddie, 394 S.C. 629, 647, 716 S.E.2d 316, 325 (Ct. App. 2011) ; id. (); cf. Pope v. Heritage Communities, Inc., 395 S.C. 404, 434, 717 S.E.2d 765, 781 (Ct. App. 2011) .
Moreover we believe MacPhee's testimony as to the future costs of achieving "no further action" status was irrelevant because Amelia was only entitled to remediation costs already incurred, and not future damages. See Rule 401 ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."); Rule 402, SCRE ( that evidence that...
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