Unlimited Services, Inc. v. Macklen Enterprises, Inc., 1287
| Decision Date | 07 December 1988 |
| Docket Number | No. 1287,1287 |
| Citation | 298 S.C. 552,382 S.E.2d 1 |
| Court | South Carolina Court of Appeals |
| Parties | UNLIMITED SERVICES, INC., Respondent, v. MACKLEN ENTERPRISES, INC. and Melton Macklen, Appellants. . Heard |
John L. Sweeny, of Hudson & Sweeny, Myrtle Beach, for appellants.
Henrietta U. Golding and Preston B. Haines, III, both of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondent.
Unlimited Services, Inc., (Unlimited), which operated a restaurant called the "Bullshipper," sued Macklen Enterprises, Inc., and Melton Macklen (Macklen) for, inter alia, fraud and deceit and conversion of deposit money. Upon trial, the jury returned a verdict for Unlimited in the amount of $254,542.04, of which $20,000.00 was for the conversion cause of action, which was set aside by the trial judge. Judgment was then entered against the appellant in the aggregate amount of $234,542.04. We reverse and remand.
This action involves a lease originally between Macklen and Origin, Inc., the terms of which are set forth in a Lease Agreement and a later Memorandum of Lease dated December 5, 1984, which refers to the former document. The Memorandum of Lease describes the lease property as follows:
All those certain pieces, parcels or tracts of land situate, lying and being in Horry County, State of South Carolina, and shown as Parcels "B" and "D" on a map of Back-Gate Properties of a portion of Lot 25 and a portion of Lot 26 through Lot 42 divided into Parcels A, B, C, D and E, surveyed by P.H. Dukes, R.L.S., on the 10th day of March, 1984, and recorded in the Office of the Clerk of Court for Horry County in Plat Book 79, Page 247. The following is a drawing made from the above-referred to plat:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The evidence, in a light most favorable to Unlimited, is that on October 30, 1984, William J. Smith, an owner of Unlimited, entered into a contract with Origin to purchase the restaurant business known as Gina's Tophat which was operated on Parcel "B" of the leased premises and further that Origin agreed to assign its lease from Macklen to Unlimited. This contract for the sale of the restaurant business contained a provision that there was no representation except as contained in the written agreement, which made no reference to any right of access between the north bound lane of U.S. Highway 17 By-pass and the frontage road area delineated on the plat.
The core of this action lies in Unlimited's allegation that Macklen represented to the principals of Unlimited that the access to and from U.S. Highway 17 By-pass to the frontage road area was a permanent easement of exit and entrance. There is no evidence of record of an explicit representation by Macklen as alleged by Unlimited.
The principals of Unlimited were William J. Smith and Mary Sargent. The contract of October 30, 1984, provided that the closing of the transaction would be on December 15, 1984. The lease, by its own terms, could not be assigned without Macklen's consent. We emphasize that Macklen did not know either Smith or Sargent on October 30, 1984.
Subsequently, in early November 1984, while Smith and Sargent were on the restaurant property, Macklen by chance came by the property and introduced himself to Smith and Sargent as the owner of the property. At that time Smith and Sargent stated that they were looking at the "possibilities" of the restaurant property.
Later in November, Macklen, Smith and Sargent again met at the property. Smith then expressed concern that the access from the highway into the restaurant lot had a "dip" or "gully" which needed some repair. Smith and Sargent testified that Macklen assured them that he would repair the access.
The testimony of record reflects that there were no highway signs on the access. It was not paved; there was no ramp connecting the highway to the access passageway; there was no corresponding street or access between the north and south bound lanes of the highway. About a quarter mile south of the restaurant was a Waffle House to which there was a paved entrance from the highway and a corresponding paved crossing from the north bound lane to the south bound lane. Both Smith and Sargent testified that the frontage road was not completed. Smith described it as a "bumpy whatevers." Pictures introduced by the plaintiffs reflect that there is a road but do not reflect whether it is paved or the state of repair. Taking the evidence in a light most favorable to the plaintiff, the frontage road was not maintained, was bumpy and could not be considered as a road.
On December 5, 1984, Macklen consented to the assignment of the lease, and the transaction between Origin and Unlimited was closed. Unlimited opened its restaurant, which it called the "Bullshipper," in February 1985, and enjoyed some success.
In April 1985, the South Carolina Department of Highways and Public Transportation (Highway Department) placed barricades and signs on the driveway to prohibit its use by the public; these were knocked down. The Highway Department subsequently dug up the culverts beneath the driveway and thereby made it impossible for traffic to leave the highway, cross the frontage road, such as it was, and enter the restaurant parking lot. There are pictures of record of the culverts after the Highway Department dug them up. These pictures dramatically reflect the absence of a ramp connecting the...
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Unlimited Services, Inc. v. Macklen Enterprises, Inc.
...have granted a directed verdict or judgment non obstante veredicto. We disagree and therefore reverse the decision reported at 298 S.C. 552, 382 S.E.2d 1 (1989). FACTS The action arose out of alleged misrepresentations made in connection with a lease agreement between Unlimited and Macklen ......
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