Gustilo v. Tang
| Decision Date | 04 April 2008 |
| Docket Number | 2008-UP-212 |
| Parties | Ester M. Gustilo and Joeprim G. Gustilo, Respondents, v. Nhin Thi Tang, and Tang Oriental Supermarket, Inc., Appellants. |
| Court | South Carolina Court of Appeals |
Submitted April 1, 2008.
Appeal From Charleston County, Mikell R. Scarborough Master-In-Equity
George Hamlin O'Kelley, III, of Mt. Pleasant and William Lloyd Taylor, of Kiawah Island, for Appellants.
Philip A. Middleton, of Charleston, for Respondents.
Nhin Thi Tang and Tang Oriental Supermarket, Inc. (collectively Tang) appeal the master-in-equity's order granting judgment for Ester and Joeprim Gustilo (the Gustilos). We affirm [1].
On April 6, 2000, the Gustilos entered into a contract to purchase Tang Oriental Supermarket (the Supermarket) from Tang for $250, 000. The purchase and sale agreement stated in paragraph 8.4 titled Amendment” that This agreement may be amended only by a written instrument executed by the party or parties to be bound thereby.” Subsequently, the Gustilos made a $40, 000 down payment using Mrs Gustilo's credit card. The Gustilos paid Tang $25, 000 toward the purchase price in March of 2000. The Gustilos paid $15, 000 more in April which was placed in an escrow account. Mrs. Gustilo testified she and her husband mortgaged two pieces of property valued at $210, 000 in total, one located in Berkeley County and one in Charleston County, to Tang as collateral. The parties stipulated the Gustilos paid Tang $83, 046.95 pursuant to the April 2000 contract.
Running the Supermarket proved unsuccessful, and the Gustilos fell behind in rent payments. In January 2001, the Gustilos allegedly entered into a new contract with Tang pursuant to which Tang would extinguish the Gustilos' outstanding mortgages if the Gustilos allowed Tang to repossess the Supermarket. The Gustilos moved out of the Supermarket and returned the keys to Tang. However, Tang later refused to release the Gustilos' collateral, and the Gustilos' property in Berkeley County was foreclosed. Tang negotiated with Tony Mallari (Mallari) to purchase the store, and once she repossessed the Supermarket, Tang planned to immediately sell it to Mallari. However, the sale to Mallari fell through. The Gustilos testified they never knew about the potential buyer Tang lined up until they returned possession of the Supermarket to her.
The Gustilos brought suit against Tang for breach of contract breach of contract accompanied by a fraudulent act, fraud and deceit, slander of title, conversion, and equitable satisfaction of mortgage. Tang answered and counterclaimed alleging breach of contract and mortgage foreclosure. After dismissing most causes of action, the trial court found specific performance was due under an oral agreement because the Gustilos completely performed their part of the bargain and voluntarily turned possession of the Supermarket over to Tang. The trial court further found Tang's inability to resell the premises to Mallari did not alter the terms of the new contract with the Gustilos. Based on these conclusions the trial court determined the Gustilos were entitled to an order directing the Register Mesne Conveyance (RMC) Office for the County of Charleston to mark as paid in full and satisfied the mortgage on the Charleston County property which the Gustilos still owned. The trial court found in favor of the Gustilos for their breach of contract and equitable satisfaction of their mortgage. However, the trial court found they failed to establish any monetary damage as a result of the breach. The trial court denied Tang's claims for breach of contract and foreclosure of mortgage. This appeal followed.
An action for specific performance is one in equity. Campbell v. Carr, 361 S.C. 258, 262, 603 S.E.2d 625, 627 (Ct. App. 2004). Our scope of review of a case heard by a master who enters a final judgment is to determine facts in accordance with our own view of the preponderance of the evidence. See Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989). Thus, the appellate court may reverse a factual finding by the trial judge in such cases when the appellant persuades the appellate court that the trial judge's finding is against the preponderance of the evidence. Campbell, 361 S.C. at 263, 603 S.E.2d at 627. Pursuant to Rule 220(b), SCACR, when an appellate court chooses to find facts in accordance with its own view of the evidence, the court must state distinctly its findings of fact and the reason for its decision. Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).
Tang argues the trial court erred in granting the Gustilos' motion for directed verdict based on the Statute of Frauds because the Gustilos failed to meet their burden of introducing clear and convincing evidence the oral agreement had been partly performed. We find this issue is not preserved for our review.
It is unclear whether this issue was actually raised at the trial level because the record Tang provided on appeal does not include portions of the trial transcript where Tang allegedly moved for a directed verdict. Ordinarily, no point will be considered which does not appear in the record on appeal. See Rule 210(h), SCACR. Further, the appellant has the burden of presenting a sufficient record to allow review. See, e.g., Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339-40, 611 S.E.2d 485, 487-88 (2005); Bridwell v. Bridwell, 279 S.C. 111, 113, 302 S.E.2d 856, 858 (1983); State v. Carlson, 363 S.C. 586, 608, 611 S.E.2d 283, 294 (Ct. App. 2005); Hundley ex rel. Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 306-07, 529 S.E.2d 45, 57 (Ct. App. 2000). Therefore, due to the inadequacy of the record presented, whether the trial court erred in deciding Tang's directed verdict motion is not preserved for our review. However, even if we were to reach the merits, this issue is unavailing to Tang.
When reviewing a trial court's ruling on a directed verdict, this court will reverse the ruling only when no evidence supports the ruling or the ruling is controlled by an error of law. Pye v. Estate of Fox, 369 S.C. 555, 569, 633 S.E.2d 505, 512 (2006); McMillan v. Oconee Mem'l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). On review, the appellate court must determine whether a verdict for the party opposing the motion would be reasonably possible under the facts as liberally construed in his or her favor. Ericson v. Jones St. Publishers, L.L.C., 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006).
Under the Statute of Frauds, certain contracts must be reduced to writing in order to be enforced. See S.C. Code Ann. § 32-3-10 (2007). In pertinent part, section 32-3-10 (4) (2007) bars actions which:
[C]harge any person upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them.... Unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.
However, South Carolina courts recognize several exceptions to the Statute of Frauds writing requirement, including partial or complete performance. See, e.g., Stackhouse v. Cook, 271 S.C. 518, 521, 248 S.E.2d 482, 483 (1978); Scurry v. Edwards, 232 S.C. 53, 60-61, 100 S.E.2d 812, 816 (1957); Settlemeyer v. McCluney, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (Ct. App. 2004). Where sufficient partial performance has occurred, courts of equity can enforce specific performance of an oral agreement for a land sale purchase, despite the Statute of Frauds. Scurry, 232 S.C. at 60-61, 100 S.E.2d at 816; Gibson v. Hrysikos, 293 S.C. 8, 13, 358 S.E.2d 173, 175-76 (Ct. App. 1987). To do so, a court of equity must find: 1) clear evidence of an oral agreement; 2) the agreement had been partially executed; and 3) the party who requested performance had completed or was willing to complete his part of the oral agreement.” Settlemeyer, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (citing Gibson, 293 S.C. at 13-14, 358 S.E.2d at 176).
In the present case, the trial court found the Gustilos credible in their testimony regarding the new contract which was entered into and consummated in early January 2001. Specifically, the Gustilos testified Tang offered to satisfy their outstanding mortgages if the Gustilos would allow her to repossess the Supermarket. The trial court stated, The Gustilos testimony is quite clear on this point. I conclude there is sufficient evidence by virtue of the somewhat ceremonious way in which the Gustilos returned the key to Mrs. Tang in January of 2001.” Therefore, based on the Gustilos' testimony and actions, we find clear and convincing evidence proves a new contract existed between the parties, thereby satisfying the first prong of Settlemeyer. 359 S.C. at 320, 596 S.E.2d at 516.
Additionally the Gustilos relinquished management and ownership of the Supermarket by returning the keys to Tang. Such action amounts to partial execution of the new agreement between Tang and the Gustilos, thereby satisfying the second prong of Settlemeyer. Id. Finally, the preponderance of the evidence indicates Tang, as the party who requested performance, was willing to comply with her obligations under the new agreement when she initially negotiated with the Gustilos to regain ownership of the Supermarket. Though negotiations with Mallari ultimately fell through, Tang initially was willing to satisfy the outstanding mortgages...
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