Truck South, Inc. v. Patel

• Decision Date: 29 June 1998
• Docket Number: No. 2862.,2862.
• Citation: 332 S.C. 222,503 S.E.2d 774
• Parties: TRUCK SOUTH, INC., Respondent, v. Sudhir D. PATEL, Appellant.
• Court: South Carolina Court of Appeals

332 S.C. 222

503 S.E.2d 774

TRUCK SOUTH, INC., Respondent, v. Sudhir D. PATEL, Appellant.

No. 2862.

Court of Appeals of South Carolina.

Submitted June 2, 1998.

Decided June 29, 1998.

Rehearing Denied August 19, 1998.

James F. Walsh, Jr., of Limehouse & Walsh, Orangeburg, for Appellant.

Arthur C. Boensch, Walterboro; and James B. Richardson, Jr., of Svalina, Richardson & Larson, Columbia, for Respondent.

ANDERSON, Judge:

This appeal requires us to determine which of two South Carolina venue statutes applies when a seller brings an action against the buyer for specific performance of a contract for the sale of land. Sudhir D. Patel, the buyer, appeals Judge Whetstone's decision denying his motion to change venue to his county of residence, as well as Judge Dennis's subsequent order granting summary judgment in favor of Truck South, Inc. We reverse and remand.¹

FACTUAL/PROCEDURAL BACKGROUND

In a sales contract dated September 13, 1993, Patel agreed to purchase from Truck South a parcel of real property located near the intersection of 1-95 and State Highway 63² in Colleton County, South Carolina. The purchase price was $136,745.00. The contract provided Truck South was to convey the property by a general warranty deed, "free from encumbrances, except as such are herein agreed to be assumed." In addition, the contract contained a section entitled "Covenants of Seller and Conditions and Contingencies of Sale," which provided, among other things, that the "property is or will be zoned for commercial purposes permitting the construction of a 2-story motel containing not less than 80 units."

Patel entered the agreement with the intention of building a motel on the site, a fact known to Truck South. After executing the contract, Patel obtained a franchise from Hampton Inn. Patel then hired an architecture firm to design and construct the motel.

A few days before construction was scheduled to begin, the architecture firm discovered water on the property. Concerned that this water might qualify the property as federallyprotected wetlands, the architecture firm requested an inspection by a federal agent. In a hearing following this investigation, part of the property was declared to be wetlands. This classification prevented Patel from constructing the motel.

Once Patel learned of this problem, he stopped making the payments required by the sales contract. As a result, Truck South instituted this action in Colleton County seeking specific performance of the contract or, in the alternative, damages. Patel moved for a change of venue to Orangeburg County, the county of his residence. Judge Whetstone denied this motion and kept the case in Colleton County, where the property was located.

Patel subsequently filed an answer in which he asserted various defenses and counterclaims, including that (1) the trial court should deny the relief requested by Truck South because the wetlands designation on the property constituted an encumbrance which rendered title to the property unmarketable, and (2) the trial court should rescind the contract because it was premised on a mutual or unilateral mistake of fact. The court, with Judge Dennis then presiding, eventually rejected these defenses and counterclaims and awarded summary judgment in favor of Truck South on all issues. Patel appeals the denial of his motion to change venue and the granting of summary judgment to Truck South.

ISSUES

(1) Did the trial court err by refusing to change venue to the county where Patel resided?

(2) Did the trial court err in granting summary judgment to Truck South?

STANDARD OF REVIEW

A motion for a change of venue is addressed to the sound discretion of the trial judge, whose ruling will not be disturbed on appeal unless it appears that manifest legal error was committed. Turner v. Santee Cement Carriers, Inc., 277 S.C. 91, 282 S.E.2d 858 (1981).

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991).

LAW/ANALYSIS

Venue Statutes

Section 15-7-10 of the South Carolina Code provides that an action "[f]or the recovery of real property or of an estate or interest therein or for the determination in any form of such right or interest and for injuries to real property" must be brought in the county where the property is located. S.C.Code Ann. § 15-7-10(1) (1976). On the other hand, section 15-7-30 provides that if section 15-7-10 or some other venue provision³ does not apply, "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action." S.C.Code Ann. § 15-7-30 (1976).

At issue is whether, when a seller brings an action for specific performance of a contract to sell real estate, venue is proper where the property is located, under section 15-7-10, or where the defendant resides, following section 15-7-30. In denying Patel's motion to change venue to the county of his residence, the trial court, relying primarily on Barrow v. Gowdy, 114 S.C. 122, 103 S.E. 477 (1920), concluded Truck South's action for specific performance was an action that would determine the parties' rights or interests in the property. Thus, section 15-7-10 applied, requiring Truck South to bring the action in the county where the property was located.

We disagree with the trial court's interpretation of Barrow. In Barrow the South Carolina Supreme Court had to decide which venue statute applied to an action brought by a buyer for specific performance of a contract for the sale of land. The court concluded the subject matter of the buyer's action was the property itself and held that the predecessor statute to section 15-7-10 applied, requiring the action to be brought in the county where the property was situated.

Although the opinion in Barrow is ambiguous as to the respective positions of the parties, the information appears throughout the record on appeal filed with the South Carolina Supreme Court. The case "Statement" prepared by the attorneys in Barrow, which is a part of the record on appeal filed with the Supreme Court, states the plaintiff was the buyer seeking possession of the property from the defendant/seller:

This is an action brought by the plaintiff, the vendee, against the defendant, vendor, for specific performance of an agreement alleged to have been made in writing by the defendant, who is a resident of Florence County, to convey to the plaintiff a certain tract of land situate in Clarendon County. Upon the service of the complaint, the defendant gave notice of his intention to move for a change of venue from Clarendon County, wherein the land is situate, and where the action is brought, to Florence County, wherein the defendant resides.

The motion was made before his Honor, Circuit Judge W.H. Townsend, presiding in the Court of Common Pleas for Clarendon County, who refused the motion, from which order refusing the motion this appeal is taken.

The plaintiff's status as the buyer is referenced in the complaint and in the appellate briefs of both parties. The trial judge's order denying the change of venue, which is included in the Supreme Court record, confirms the plaintiff was the buyer seeking specific performance to obtain the property from the seller:

This is a motion, in an action by the vendee for the specific performance by the vendor, a resident of Florence County, of a contract for the sale and conveyance of lands situate in Clarendon County, to change the place of trial from Clarendon to Florence, upon the ground that Clarendon is not the proper place for the trial of the action.

In contrast to Barrow, the current appeal involves an action for specific performance of a contract for the sale of land brought by the seller, not the buyer. We believe this distinction is critical in determining which venue statute is applicable.

Nature of Relief Sought

When a buyer brings an action for specific performance of a land sales contract, the plaintiff is clearly seeking the property itself and is asking the court to determine his right in the property. Hence, section 15-7-10 would apply, making venue proper in the county where the property is located. Barrow, 114 S.C. 122,103 S.E. 477.

The same analysis does not hold true when the seller brings an action for specific performance of a contract for the sale of property. In that instance, the plaintiff is not asking for the property or an order directly affecting title to the property; rather, he is seeking the purchase price of the property due under the contract. Thus, the subject matter of the seller's action is actually money. This leads us to conclude Barrow is not controlling when it is the seller, rather than the buyer, who seeks specific performance of a contract for the sale of land because the objects of the suit are different.

Our conclusion that an action by the seller seeking specific performance of a land sales contract should be brought where the defendant resides is in line with well-reasoned authority from other jurisdictions which have considered this issue. See generally C.R. McCorkle, Annotation, Venue of Action for Specific Performance of Contract Pertaining to Real Property, 63 A.L.R.2d 456 (1958) (and cases cited therein). McCorkle states:

Since an action to compel the specific performance of a contract pertaining to real property is generally classified as in personam and transitory, except to the extent that it is sought to recover a judgment or decree operating directly on the property, the venue thereof, in the absence of any constitutional or statutory provision to the contrary, is generally held to be in the county in which the defendant resides.

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