McDONALD, J.
South Causeway, LLC (South Causeway) appeals in this commercial foreclosure action, arguing the circuit court erred by (1) directing a verdict in favor of First South Bank on South Causeway's claim for tortious interference with a prospective contract; (2) refusing to admit certain email correspondence; and (3) denying South Causeway's motion for judgment notwithstanding the verdict, or in the alternative, a new trial on its breach of contract counterclaim. We affirm.
In October 2005, Peggy Wheeler-Cribb and Will Darwin Wheeler (collectively, the Wheelers) executed a promissory note in favor of First Palmetto Savings Bank (Palmetto) in the amount of $4,500,000. The note was secured by mortgages on two properties: (1) 17.49 acres
Pursuant to the loan agreement (Agreement), FSB was to lend South Causeway up to $6,500,000 in separate advancements. At the closing, FSB advanced South Causeway $4,769,725.23, satisfying both the outstanding loan from Palmetto and an outstanding loan from FSB secured by Lot 4 at 334 Myrtle Avenue in Pawleys Island. (Lot 4).
Under the terms of the Agreement, "Advances subsequent to the Initial Advance shall be made . . . as construction of the
Section 4.2 stated the conditions precedent for each subsequent advance including: an executed construction contract assignment, no event of default, and a request for advance. Section 4.6(4) of the Agreement provided that FSB "shall have no obligation to lend if at the time of any requested advance there shall have occurred an event of default hereunder."
Section 7.1 articulated numerous events constituting default, including the borrower's abandonment of "construction of the improvements with the intent not to resume construction for a period of 5 consecutive days." Section 7.2 outlined FSB's remedies upon the occurrence and continuation of an event of default:
On June 30, 2008, Lincoln Harris Properties, LLC (LHP) entered into a letter of intent with South Causeway to purchase the 19.17 acre tract for $12,000,000. On July 2, 2008, Wheeler-Cribb informed FSB of LHP's interest in the undeveloped commercial property and the letter of intent. Later that day, Wheeler-Cribb sent the following email to FSB: "Information only. We would not be interested in those terms."
In a September 30, 2008 email, Wheeler-Cribb informed FSB that due to the downturn in the economy, South Causeway
South Causeway attempted to negotiate a lease agreement with Lowe's Food through October 2008, but Lowe's Food terminated negotiations. Shortly thereafter, South Causeway sought a real estate broker to market the 19.17 acre tract. In November 2008, Wheeler-Cribb approached FSB about making a loan on another piece of property. At this time, FSB suggested South Causeway seek financing from a local lender.
On April 10, 2009, South Causeway and FSB entered into an amended agreement that shortened the maturity date by one year and released Lot 4.
In March 2010, Harris Investment Company # 1, LLC (HIC), a subsidiary of LHP, approached FSB regarding a potential purchase of South Causeway's note and mortgage. After HIC and FSB entered into a confidentiality agreement, HIC reviewed South Causeway's primary loan documents, which included the Agreement, note, title insurance, and appraisal. Ultimately, FSB declined HIC's offer to purchase the South Causeway loan.
On April 12, 2010, South Causeway retained Vintage Estates Realty (VER) to sell the undeveloped commercial property at auction. At trial, Wheeler-Cribb testified they
As a result of the conversation between Thomas and Lovelace, VER changed the minimum sale price of each lot to $4,800,000, for a total sale price of $19,200,000. The auction went forward on June 1, 2010. At trial, Thomas testified they "offered the first parcel, being the entire [19.17 acre tract], and when we did not get any bids on that, then we went down to each parcel individually."
On July 2, 2010, LHP made a second offer to purchase the 19.17 acre tract from South Causeway for $4,000,000. South Causeway rejected this offer. South Causeway was unable to satisfy its financial obligations to FSB on the loan's maturity date, July 5, 2010. On August 5, 2010, FSB initiated a foreclosure action.
The Honorable Thomas A. Russo heard the case on September 18-25, 2012. Judge Russo bifurcated the trial, first presenting South Causeway's counterclaims to the jury and then ruling on the foreclosure action after discharging the jury. Following FSB's case, South Causeway moved for a directed
South Causeway argues the circuit court erred in directing a verdict in favor of FSB on South Causeway's counterclaim for tortious interference with a prospective contract. We disagree.
When reviewing the trial court's ruling on a motion for a directed verdict, this court must apply the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party.
After the conclusion of South Causeway's case, FSB moved for a directed verdict on numerous grounds, including South Causeway's counterclaim for tortious interference with a prospective contract. FSB argued that "the only evidence . . . [presented] at all is that the auction got no bids. We haven't heard about any prospective contract." According to South Causeway, Thomas testified "he used his professional judgment and skill in setting the reserve prices[,] and as a result of Mr. Lovelace's directions[,] they were changed."
The circuit court directed a verdict in favor of FSB, noting that FSB was "justified in disclosing the information, as [VER] needed [it] . . . to effectively conduct the auction." South Causeway immediately moved for reconsideration, arguing FSB interfered with South Causeway's contract with the auction company and that "prior to the auction there was a reasonable certainty that . . . a contract [would be] made as a result of the auction." The circuit court denied South Causeway's motion to reconsider.
"To establish a cause of action for intentional interference with prospective contractual relations, a plaintiff must show: 1) intentional interference with prospective contractual relations; 2) for an improper purpose or by improper methods; and 3) resulting in injury." Eldeco, Inc. v. Charleston Cty. Sch. Dist., 372 S.C. 470, 480, 642 S.E.2d 726, 731 (2007). "Generally, there can be no finding of intentional interference with prospective contractual relations if there is no evidence to suggest any purpose or motive by the defendant other than the proper pursuit of its own contractual rights with a third party." Eldeco, 372 S.C. at 482, 642 S.E.2d at 732 (quoting S.
William Barksdale (Barksdale) testified for South Causeway as an expert in commercial banking, commercial lending policies and procedures, and banking policies and procedures. With respect to the Lovelace disclosure, Barksdale opined that
Barksdale further testified that the amount owing on a note, a loan's maturity date, and a bank's decision whether to renew a loan would be confidential information. He admitted on cross-examination, however, that FSB's disclosure did not violate any code of ethics, banking standard, or privacy law and that FSB was under no obligation to renew the loan once it had legally matured.
To satisfy the first element of the cause of action for tortious interference with prospective contractual relations, South Carolina law requires that a "plaintiff must demonstrate that he had a truly prospective or potential contract with a third party; that the agreement was a close certainty; and that the contract was not speculative." Santoro v. Schulthess, 384 S.C. 250, 263, 681 S.E.2d 897, 904 (Ct.App.2009). South Causeway cannot satisfy this requirement.
Although Wheeler-Cribb sought to establish that the Lovelace disclosure caused LHP to reduce its purchase offer from the $12,000,000 offered in 2008, to the $4,000,000 offered in 2010, the record, particularly Wheeler-Cribb's outright rejection of the terms of the 2008 $12,000,000 offer and the subsequent unforeseen downturn in the commercial real estate market, simply does not support this assertion. The record further reflects that South Causeway called no witnesses to testify as to any other existing prospective contract, nor did it present testimony from potential auction bidders or prospective purchasers who were deterred by the disclosure.
In addition, South Causeway cannot demonstrate that the Lovelace disclosure was made for an improper purpose or by
Lovelace provided VER with information necessary to protect FSB's contractual rights under the loan documents, and no sale of the separate parcels could have occurred without the information concerning FSB's interest in the tract. Thus, South Causeway cannot establish the "improper purpose or improper method" necessary to support a cause of action for interference with prospective contractual relations. See, e.g., Eldeco, 372 S.C. at 482, 642 S.E.2d at 732 (upholding directed verdict where defendant acted in pursuit of its own contractual rights).
South Causeway contends the circuit court erred in sustaining hearsay objections as to certain email correspondence when the documents at issue were offered to prove notice and motive, rather than the truth of the matter asserted.
"The admission of evidence is within the [circuit] court's discretion." R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 439, 540 S.E.2d 113, 121 (Ct.App. 2000). "The court's ruling to admit or exclude evidence will only be reversed if it constitutes an abuse of discretion amounting to an error of law." Id.; see also Gamble v. Int'l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996) (noting a ruling on the admission or exclusion of evidence will not be disturbed on appeal absent a clear abuse of discretion).
South Causeway attempted to introduce into evidence a series of emails between Greg Currie of LHP and Chip
At trial, South Causeway acknowledged that it sought to introduce the March 27, 2010 email—at least in part—for the truth of the matter asserted. Although South Causeway contends on appeal that it did not admit that the emails were being offered for the truth of the matter asserted, South Causeway acknowledges "counsel conceded during argument that the emails could be considered for the truth of the matter asserted for a very limited purpose." Thus, we find South Causeway's argument regarding the March 27, 2010 email is not properly before this court. See Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 46, 691 S.E.2d 135, 147 (2010); see also TNS Mills, Inc. v. S.C. Dep't of Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower court may not be argued on appeal.").
South Causeway also sought to admit a May 24, 2010 email, arguing it showed Lyerly was on notice that LHP breached its confidentiality agreement by meeting with county officials regarding the 19.17 acre tract, and that FSB had motive to contact VER on May 15, 2010, about the upcoming auction. The circuit court ruled the May 24, 2010 email inadmissible, cogently noting "this doesn't have any effect on the hearer when it occurs nine days after the hearer already acted."
The May 24, 2010 email from Currie to Lyerly included the following information:
We find it factually impossible that the May 24, 2010 email from LHP to FSB provided FSB with a motive for contacting VER on May 15, 2010. Thus, the circuit court did not abuse its discretion in excluding the May 24, 2010 email correspondence, and we affirm the hearsay rulings.
South Causeway argues the series of emails was admissible under the business records exception to the hearsay rule found in Rule 803(6), SCRE.
South Causeway contends the circuit court erred in denying its motion for judgment notwithstanding the verdict on its breach of contract counterclaim. In the alternative, South Causeway argues the circuit court erred in denying its motion for a new trial pursuant to the thirteenth juror doctrine. South Causeway bases these arguments on the following language from subsection F of the Commitment: "An additional $550,000.00 of the proceeds of the Loan shall be disbursed by Bank into the Account to fund monthly interest payments due upon the Loan upon the earlier to occur of completion of the Infrastructure and six (6) months from the date of Loan closing." South Causeway asserts that this subsection "clearly requires that only one of the two conditions had to occur before the interest reserve funds were due for deposit."
"A motion for judgment notwithstanding the verdict under Rule 50(b), SCRCP is a renewal of a directed verdict motion." Wright v. Craft, 372 S.C. 1, 20, 640 S.E.2d 486, 496 (Ct.App.2006). "A motion for JNOV may be granted only if no reasonable jury could have reached the challenged verdict." Gastineau v. Murphy, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998).
The circuit court found that the admitted exhibits and witness testimony supported the following findings: South Causeway did not meet the conditions precedent for subsequent advances as required by the Agreement; South Causeway abandoned its plan to develop the property, constituting an event of default under the Agreement; and therefore, FSB did not have a duty to make the subsequent advance of $550,000 into the interest reserve account. Moreover, the $550,000 advance referenced in the Commitment was not part of the Agreement, which provided that "the terms, conditions[,] and provisions of the Commitment are incorporated herein and made a part hereof by reference. To the extent that any specific inconsistencies exist between the Commitment, and this Agreement, . . . the provisions of this Agreement. . . respectively, shall govern."
The circuit court explained that "the release contained in the April 10, 2009 agreement between the parties further
There is significant evidence in the record supporting the circuit court's denial of South Causeway's motion for JNOV, and the circuit court committed no error of law. See Law, 368 S.C. at 434-35, 629 S.E.2d at 645 (stating this court will reverse the circuit court's ruling on a directed verdict or JNOV motion only "when there is no evidence to support the ruling or where the ruling is controlled by an error of law"). Therefore, we affirm the circuit court's denial of South Causeway's motion for judgment notwithstanding the verdict.
In its order denying South Causeway's motion for a new trial, the circuit court explained as follows:
"South Carolina's thirteenth juror doctrine allows the circuit court judge to grant a new trial absolute when the judge finds the evidence does not justify the verdict." Trivelas v. S.C. Dep't of Transp., 357 S.C. 545, 551, 593 S.E.2d 504, 507 (Ct.App.2004). "The effect is the same as if the jury failed to reach a verdict, and thus, the circuit court is not required to give any reason for granting the new trial." Id. at 553, 593 S.E.2d at 508. Assuming evidence exists to support the circuit court's decision, a "judge . . . [, sitting as] the thirteenth juror, possess[es] the veto power to the Nth degree. . . ." Id. (alterations in original) (quoting Worrell v. S.C.
As significant evidence supports the circuit court's denial of South Causeway's "thirteenth juror" motion, we affirm.
We find the circuit court properly granted FSB's motion for a directed verdict on South Causeway's counterclaim for tortious interference with a prospective contract. The circuit court did not err in refusing to admit certain email correspondence because the correspondence was hearsay. Finally, the circuit court committed no error in denying South Causeway's motion for JNOV, or in the alternative, a new trial on the breach of contract counterclaim. Accordingly, the ruling of the circuit court is
WILLIAMS and GEATHERS, JJ., concur.