Hawkins v. Greenwood Development Corp.

• Decision Date: 11 September 1997
• Docket Number: No. 2741,2741
• Citation: 328 S.C. 585,493 S.E.2d 875
• Court: South Carolina Court of Appeals
• Parties: Tommy HAWKINS, Respondent, v. GREENWOOD DEVELOPMENT CORPORATION, and H & T Investments, a South Carolina General Partnership, Defendants, of whom Greenwood Development Corporation is Appellant. . Heard

Page 875

493 S.E.2d 875

328 S.C. 585

Tommy HAWKINS, Respondent, v.GREENWOOD DEVELOPMENT CORPORATION, and H & T Investments, a South Carolina General Partnership, Defendants of whom Greenwood Development Corporation isAppellant.

No. 2741.

Court of Appeals of South Carolina.

Heard Sept. 11, 1997.

Decided Oct. 27, 1997.

Rehearing Denied Dec. 17, 1997.

Certiorari Denied Oct. 9, 1998.

Marcus A. Manos and Harold W. Jacobs, both of Nexsen, Pruet, Jacobs & Pollard; and David B. Summer, Jr., of Parker, Poe, Adams & Bernstein, Columbia, for appellant.

Steven L. Smith, of Smith & Collins, Charleston, for respondent.

HEARN, Judge:

In this action for breach of contract, Greenwood Development Corporation(Greenwood) appeals a jury verdict of $1,500,000 in favor of Tommy Hawkins.We affirm.

Facts

Greenwood entered into a contract in January 1989 to purchase 177 acres of undeveloped property in Dorchester County from H & T Investments.H & T was owned by Tommy Hawkins and Joseph Tamsberg.The January contract was contingent on Greenwood's being able to develop "an 18-hole championship golf course, approximately 900 single family lots, plus assorted commercial property."

As part of the January contract, Greenwood agreed to build an access road on the property as set forth in paragraph 6:

Purchaser agrees that it will build an access road, beginning at the location on Dorchester Road as shown on the attached survey and which will provide access to the southeasternmost boundary of the property of Ava Bryant Hawkins, as shown on the attached survey.Said road will be constructed in accordance with the requirements of the City of North Charleston and shall be dedicated to the City of North Charleston within five (5) years from the date of closing.

After entering the January contract, Greenwood and H & T realized that the encroachment of property owned by Ava Bryant Hawkins, Tommy Hawkins' wife, would interfere with Greenwood's plans to develop the property as a golf course.Thus, in February 1989, Greenwood entered into a second contract with H & T, Joseph Tamsberg d/b/a Tamsberg Properties, Ava Bryant Hawkins, and Tommy Hawkins.Greenwood and the various parties agreed to a like-kind exchange in which Greenwood would purchase a tract of land from Tamsberg Properties and deed it to Ava Bryant Hawkins in exchange for her deeding a portion of her property to Greenwood.This exchange consolidated Greenwood's land into a single, contiguous parcel that could be used to develop a golf course.

Under the February contract, Greenwood had a continuing obligation to provide an access road to Tommy Hawkins' property.The contract states:

14.Hawkins relocation.Hawkins agrees and consents to the relocation of proposed Road E so that it intersects the southern half of the common boundary between the Property and the property of Hawkins, as identified as Godley Auction Company, Inc., as shown in Green on Exhibit B.

15.Hawkins Boulevard Relocation.H & T Investments agrees that the relocation of Road E as provided in paragraph 14 shall satisfy the requirements set forth in paragraph 6 of the H & T contract and affirmatively waives the requirement that Road C be constructed as provided therein.Greenwood Development Corporation agrees to construct Road C from Dorchester Road to the relocated intersection of Road C and Road E and to construct Road E from the relocated intersection of Road C and Road E to the boundary between the Tamsberg property and the property in accordance with the requirements of the City of North Charleston and shall be dedicated to the City of North Charleston within Five (5) years from the date of closing, all as shown in more detail on Exhibit B. (emphasis added).

When the February contract was drafted by counsel for H & T Investments, only the green zone was identified in Exhibit B.The exact location of the new proposed Road E was not shown.During negotiations between the parties, Hawkins drew in the exact location and configuration of proposed Road E on Exhibit B to the contract before signing.In the drawing, Hawkins curved the road toward the northeast boundary of the property of Ava Bryant Hawkins.Greenwood then signed the contract, with Hawkins' hand-drawn configuration of the road appearing on the attached exhibit.

After the execution of the contract, Greenwood prepared several plats and diagrams of the proposed development which depicted Road E as curving as shown on Exhibit B of the contract.However, when Greenwood applied to the South Carolina Coastal Council and Army Corps of Engineers for permits to construct various roads across wetlands, the Council rejected the location of Proposed Road E.The reason for its rejection was that a development plan for the land owned by Hawkins had not been submitted.Greenwood subsequently built the road straight, without the curve Hawkins had drawn on Exhibit B.

Hawkins brought suit against Greenwood for breach of contract.The jury returned a verdict in favor of Hawkins for $1,500,000.

I.

Greenwood argues the trial judge erred in denying its motion for judgment notwithstanding the verdict on the ground that the contract language is clear, unambiguous, and susceptible of only one interpretation.We disagree.

Greenwood argues that its only obligation under the terms of paragraph 14 of the contract was to construct a road which ended in the green zone.Hawkins argues that both paragraphs 14 and 15 of the contract refer the reader to Exhibit B which depicts the exact location of the proposed road.

The construction of a clear and unambiguous contract is a question of law for the court.United Dominion Realty Trust, Inc. v. Wal-Mart Stores, Inc., 307 S.C. 102, 105, 413 S.E.2d 866, 868(Ct.App.1992).A contract is ambiguous when the terms of the contract are inconsistent on their face, or are reasonably susceptible of more than one interpretation.17A Am.Jur.2dContracts§ 338, at 345(1991)."A contract is ambiguous when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business."Id.It is a question of law for the court whether the language of a contract is ambiguous.17A Am.Jur.2dContracts§ 339, at 346(1991).Once the court decides that the language is ambiguous, evidence may be admitted to show the intent of the parties.The determination of the parties' intent is then a question of fact for the jury.Id.

In ruling on a motion for judgment notwithstanding the verdict, the trial court must view the evidence and its inferences in the light most favorable to the nonmoving party.Shupe v. Settle, 315 S.C. 510, 515, 445 S.E.2d 651, 654(Ct.App.1994).The court must deny the motion if either the evidence yields more than one reasonable inference or its inferences are in doubt.Id.The verdict will be upheld if there is any evidence to sustain the factual findings implicit in the jury's verdict.Id.

We hold that the language of paragraphs 14 and 15 of the contract, together with the hand-drawn depiction of Road E on Exhibit B, created an ambiguity as to whether Greenwood was required to merely end the road in the green zone or build the road according to the exact configuration depicted on the plat.Thus, we find this was properly a question for the jury and the trial judge committed no error in denying Greenwood's motion for judgment notwithstanding the verdict.See3 Arthur L. Corbin, Corbin on Contracts§ 548, at 181-83(1960)(Printed provisions of a contract should be harmonized, if possible, with handwritten ones.If there is an inconsistency between the two provisions, however, the handwritten provision prevails.).

II.

Greenwood argues the trial judge erred in denying its motion for judgment notwithstanding the verdict on the ground that it was legally impossible for it to perform the contract as Hawkins demanded.We disagree.

A party to a contract must perform its obligations under the contract unless its performance is rendered impossible by an act of God, the law, or by a third party.Moon v. Jordan, 301 S.C. 161, 164, 390 S.E.2d 488, 490(Ct.App.1990).Impossibility must be real and not a mere inconvenience.17A Am.Jur.2dContracts§ 673, at 681(1991)."A party to a contract cannot be excused from performance on the theory of impossibility of performance unless it is made to appear that the thing to be done cannot by any means be accomplished, for if it is only improbable or out of the power of the obligor, it is not deemed in law impossible."Id.A party claiming impossibility of performance has the burden of proving the defense.17A Am.Jur.2dContracts§ 674, at 682(1991).

Greenwood argues that it was impossible for it to construct the road to Hawkins' specifications because the South Carolina Coastal Council and Army Corps of Engineers denied it a permit to cross wetlands at that location.Hawkins argues that the Council rejected the permit because there was no development plan in place for the area to which the road led.He further argues that no one at Greenwood informed him of the need for a development plan or requested such a plan from him to facilitate construction of the proposed road.

We find the trial judge properly denied Greenwood's motion for judgment notwithstanding the verdict on the ground of impossibility.Several of Greenwood's witnesses testified that it would be difficult, but not impossible, to obtain the required permits.Furthermore, the trial judge charged the jury on the defense of impossibility and allowed the jury to determine whether Greenwood had met its burden of proving the defense.We find no error.

III.

Greenwood argues the trial judge erred in allowing Hawkins to support his claim for damages by speculating on the value of land at an intersection of proposed...