Opinion
2018-UP-062
02-07-2018
Wallace K. Lightsey, of Wyche Law Firm, of Greenville; James Atkinson Bruorton, IV and Timothy James Wood Muller, both of Rosen Rosen & Hagood, LLC, of Charleston, all for Appellant. Michael A. Timbes and Thomas James Rode, both of Thurmond Kirchner & Timbes, P.A., of Charleston, for Respondent.
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Submitted January 1, 2018
Appeal From Charleston County Mikell R. Scarborough, Master-in-Equity
Wallace K. Lightsey, of Wyche Law Firm, of Greenville; James Atkinson Bruorton, IV and Timothy James Wood Muller, both of Rosen Rosen & Hagood, LLC, of Charleston, all for Appellant.
Michael A. Timbes and Thomas James Rode, both of Thurmond Kirchner & Timbes, P.A., of Charleston, for Respondent.
PER CURIAM.
Nordic Group, LLC, (Nordic) appeals the Master-in-Equity's order approving Associated Developers, Inc.'s (Associated's) contract to purchase heirs' property in Charleston County and the Master's order denying Nordic's motion to reconsider. Nordic argues (1) the Master erred by approving Associated's contract to purchase the property and (2) Nordic's in-court, oral offer of $650,000 for the property was sufficient and binding. We affirm.
We decide this case without oral argument pursuant to Rule 215, SCACR.
We find the Master did not err by approving Associated's contract to purchase the property. See Laughon v. O'Braitis, 360 S.C. 520, 524, 602 S.E.2d 108, 110 (Ct. App. 2004) ("A partition action . . . is an action in equity. In an appeal from an equitable action, this court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence."). Here, Associated presented evidence at the valuation hearing of its contract for the sale of the property, its contract amendment increasing the value it would pay for the property to $560,000, and its agreement to provide for the perpetual care of the gravesites on the property. Although Nordic submitted to the Master a written but unsigned offer to purchase the property for the price of $560,000 prior to the valuation hearing, the only evidence Nordic offered at the hearing was its attorney's oral offer increasing its offer price. We find the attorney's statement was not proper evidence for the Master to consider. See McManus v. Bank of Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933) ("This [c]ourt has repeatedly held that statements of fact appearing only in argument of counsel will not be considered."); Gilmore v. Ivey, 290 S.C. 53, 58, 348 S.E.2d 180, 185 (Ct. App. 1986) (noting the circuit court properly disregarded statements of counsel about testimony appearing in depositions not otherwise introduced into evidence). Nordic's attorney was unable to submit a signed, written commitment that Nordic would waive the contingencies in its current offer or provide for the family gravesites. Accordingly, the only evidence properly before the Master at the valuation hearing was Nordic's original $560,000 offer; Associated's original contract, its amended contract for $560,000, and its agreement to care for the gravesites; and the parties' stipulation that the property's fair market value was $560,000.
After the valuation hearing, Nordic filed two new contracts indicating an increased offer price in support of its motion to reconsider. At the hearing on its motion to reconsider, Nordic indicated it had yet another contract but failed to admit this contract into evidence; however, a party cannot submit new evidence in support of its motion to reconsider. See Dempsey v. Huskey, 224 S.C. 536, 544, 80 S.E.2d 119, 122 (1954) (per curiam) (stating additional evidence submitted after the reference was closed could not be considered by the court because there was no opportunity for cross examination and the evidence was not necessary for "substantial justice"). Because Nordic presented no timely evidence of its new offer, Associated's written-and-signed contract was for the fair market value of the property as stipulated by the parties, and Associated had an agreement to perpetually care for the gravesites on the property, we find the Master did not err in approving Associated's contract.
As to Nordic's arguments regarding the Master's authority to proceed as it did at the valuation hearing, we find these arguments are unpreserved because Nordic never objected to the procedure at the time of the valuation hearing. See Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006) ("[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [circuit] court to be preserved."); Johnson v. Sonoco Prod. Co., 381 S.C. 172, 177, 672 S.E.2d 567, 570 (2009) (per curiam) ("An issue may not be raised for the first time in a motion to reconsider."). To the extent Nordic argues the valuation hearing was the equivalent of a judicial sale, Nordic did not raise this issue until its Rule 59(e), SCRCP motion, and thus, the issue is not preserved for appellate review. See Johnson, 381 S.C. at 177, 672 S.E.2d at 570 ("An issue may not be raised for the first time in a motion to reconsider."). Similarly, to the extent Nordic argues the Master did not have to award a contract at the valuation hearing, Nordic raised this issue for the first time on appeal, and thus, the issue is not preserved. See Pye, 369 S.C. at 564, 633 S.E.2d at 510 ("[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [circuit] court to be preserved.").
Finally, we find Nordic's oral offer to purchase the property was not sufficient and binding because the statement of Nordic's attorney regarding Nordic's oral offer at the valuation hearing did not constitute evidence of an offer. See McManus, 171 S.C. at 89, 171 S.E. at 475 ("This [c]ourt has repeatedly held that statements of fact appearing only in argument of counsel will not be considered."). Because Nordic offered no evidence of the oral offer at the hearing, there was no valid offer, and the offer was not sufficient or binding on the Master.
AFFIRMED.
WILLIAMS, THOMAS, and MCDONALD, JJ., concur.