Sterling Development Co. v. Collins

• Decision Date: 06 May 1992
• Docket Number: No. 23699,23699
• Citation: 421 S.E.2d 402,309 S.C. 237
• Parties: STERLING DEVELOPMENT COMPANY, Respondent, v. Roy E. COLLINS, Jr., and Roy E. Collins, III, Appellants. . Heard
• Court: South Carolina Supreme Court

Page 402

421 S.E.2d 402

309 S.C. 237

STERLING DEVELOPMENT COMPANY, Respondent, v. Roy E. COLLINS, Jr., and Roy E. Collins, III, Appellants.

No. 23699.

Supreme Court of South Carolina.

Heard May 6, 1992.

Decided Aug. 31, 1992.

Rehearing Denied Sept. 22, 1992.

John E. Johnston, Jr. and Jack H. Tedards, Jr., of Leatherwood, Walker, Todd & Mann, P.C., Greenville, for appellants.

O. G. Calhoun, Jesse C. Belcher and George E. Frazer, Jr., of Haynsworth, Marion, McKay & Guerard, Greenville, for respondent.

TOAL, Justice:

This appeal involves a breach of a real estate sale contract. The jury found the Appellants ("the Collins") breached the contract and awarded damages to the Respondent ("Sterling") which included lost profits. The Collins brought this appeal arguing there was no evidence of their breach and the damages based on lost profits were awarded in error. We affirm the trial court on both issues.

FACTS

Sterling agreed to purchase one half interest in a sixteen acre tract of land owned by the Collins to develop a shopping center. Under the contract, the Collins would retain the remaining one-half interest until the shopping center parking lot was substantially complete and the Collins' store, to be located in the shopping center, was completed. Upon completion of the Collins store, the contract provided that Sterling would deed fee simple title of the Collins' store to the Collins in exchange for their remaining one half interest in the land. The contract set forth a detailed list of requirements for any mortgage given on the property by Sterling. These requirements were designed to protect the Collins' interest in the property and their store. The time of closing, although extended several times by agreement of the parties, was ultimately required to occur within thirty days of July 31, 1989.

In a letter dated July 31, 1989, Sterling notified the Collins that Sterling would be ready to close the sale on August 30, 1989. The Collins indicated, however, they were not willing to close on the sale unless the closing of the construction loan mortgage would take place simultaneously. It is undisputed a simultaneous closing was not a requirement of the contract. The contract did not require a mortgage but merely placed restrictions on the terms of a mortgage if Sterling elected to procure this form of outside financing. Nevertheless, the President of Sterling, Vaughn, testified he tried to accommodate the Collins by attempting to close the construction loan at the time of the sale closing. Vaughn maintained he informed the Collins that this was not a condition of the contract and that Sterling was fully able and willing to perform the contract with a cash closing. When Sterling was unable to procure loan documents from its proposed lender by August 30, 1989, a second closing was set for September 15. Although the parties met on that date, the loan documents were still not satisfactory to the Collins. On September 21, 1989 Vaughn notified the Collins the loan documents were still not completed by the lender but Sterling stood ready to close the sale for cash. On September, 27, 1989 the Collins responded by unequivocally and totally repudiating the contract due to Sterling's alleged breach. Sterling, then, brought this action against the Collins for breach of contract.

There was evidence that at the time of the Collins' repudiation, Sterling had a lease agreement with BiLo. This agreement required the footings and foundation for the BiLo store to be in place by August 1, 1989. The lease agreement, however, gave Sterling a ninety day cure period before BiLo could terminate the lease. Additionally, this deadline had been extended once and there was testimony that BiLo was willing to extend this deadline again. On October 31, after the Collins repudiated the contract and the ninety day cure period had lapsed, BiLo terminated the lease.

LAW/ANALYSIS

An action for breach of contract seeking money damages is an action at law. Moore v. Crowley & Associates, Inc., 254 S.C. 170, 174 S.E.2d 340 (1970). In an action at law, the factual findings of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

The Collins argue that Sterling agreed to close the sale at the same time as the construction loan and to do so within the date specified in the contract. This assertion is not supported by the evidence. There is no evidence that Sterling ever agreed to perform both closings by August 30 or by September 15. Nor would such an agreement have been binding without consideration or compliance with the statute of frauds. Player v. Chandler, 299 S.C. 101, 382 S.E.2d 891 (1989) (any modification of a written contract must satisfy all requisites of a valid contract). Nevertheless, the Collins argue Sterling "acquiesced" this additional term and it became binding under a theory of waiver. This argument, besides being unsupported by the evidence, is inconsistent with waiver principles. A...