Premier Holdings v. Barefoot Resort Golf Club II

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals Premier Holdings, LLC, a Utah Limited Liability Company, and Premier Resorts, International, Inc., a Delaware corporation, Respondents, v. Barefoot Resort Golf Club II, LLC, a South Carolina Limited Liability Company, Appellant. Appeal From Horry County J. Stanton Cross, Jr., Master-in-Equity Unpublished Opinion No. 2008-UP-336 Submitted June 2, 2008 – Filed July 2, 2008 AFFIRMED C. Mitchell Brown, of Columbia, and Ian S. Ford, of Charleston, for Appellant. J. Jackson Thomas, of Myrtle Beach, for Respondents. PER CURIAM: Barefoot Resort Golf Club, II, LLC (“Barefoot”) appeals inter alia the master’s finding that it breached a valid contract with Premier Holdings, LLC and Premier Resorts, International, Inc. (collectively “Premier”). We affirm.[1] FACTS Barefoot is owner and operator of three golf courses at the Barefoot Resort in North Myrtle Beach, South Carolina.[2] Premier manages large, condominium-resort properties throughout the United States and Mexico and manages properties at the Barefoot Resort. Legends Barefoot had borrowed three million dollars from Premier in July of 2002 to pay for purchasing its interest in the courses. The parties agreed to an extension of the loan in July of 2003. They executed numerous documents in conjunction with the extension of the loan. One of these documents was a Shared Services Agreement (“SSA”). The SSA provided several benefits to Premier to help “ensure the availability of golf tee times for clients of Premier.” These benefits included giving Premier control of the tee time sheets for Barefoot, blocking certain tee times for Premier customers and paying Premier a four percent commission on all golf tee times booked by Premier. In January of 2005, Barefoot took control of the tee time sheets away from Premier. Premier filed suit for breach of contract alleging Barefoot had violated the provisions of the SSA. Barefoot answered alleging the SSA was not an enforceable contract because it lacked material terms, specifically, a contract duration. The master-in-equity found the contract was enforceable and the duration of the contract was “for as long as” Premier continued doing business at Barefoot. The master further held Barefoot had breached the SSA and awarded Premier damages in the amount of $161,369. Barefoot appeals. STANDARD OF REVIEW “An action to construe a contract is an action at law. Likewise, ‘[a]n action for breach of contract seeking money damages is an action at law.’” Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 590, 658 S.E.2d 539, 541-42. (Ct. App. 2008) (quoting R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 343 S.C. 424, 430, 540 S.E.2d 113, 117 (Ct. App. 2000)). On appeal from a final judgment of the master in a law case tried without a jury, “we may not consider the case based on our own view of the preponderance of the evidence, but must view the record so as to support the master’s findings of fact whenever reasonably possible.” South Carolina Fed. Sav. Bank v. Thornton-Crosby Dev. Co., 303 S.C. 74, 78, 399 S.E.2d 8, 11 (Ct. App. 1990) (citing Sheek v. Crimestoppers Alarm Sys., 297 S.C. 375, 377 S.E.2d 132 (Ct. App. 1989)). “In other words, we must consider the evidence in the light most favorable to the respondent, eliminating from consideration evidence to the contrary.” Id. at 79, 399 S.E.2d at 11. LAW/ANALYSIS I. Enforceability of Contract/Duration of Contract[3] Barefoot argues the master erred in finding the SSA to be a valid and enforceable contract where material terms were omitted. We disagree. “It is well settled in South Carolina that in order for there to be a binding contract between parties, there must be a mutual manifestation of assent to the terms.” Edens v. Laurel Hill, Inc., 271 S.C. 360, 364, 247 S.E.2d 434, 436 (1978). “Some terms are considered indispensable to a binding contract. Among these are price, time and place.” Id. However, as noted by the master in his order, the requirement of a specific duration for the enforcement of a contract is not limited solely to a calendar date, but may be provided upon the occurrence of a specific event. Prestwick Golf Club, Inc. v. Prestwick Ltd. P’ship, 331 S.C. 385, 392, 503 S.E.2d 184, 187-88 (Ct. App. 1998). “Although the interpretation of a contract is generally a matter of law, the intent of the parties becomes a question of fact . . . when the contract is ambiguous.” Id. at 390, 503 S.E.2d at 187. “An ambiguous contract is a contract capable of being understood in more than one way or a contract unclear in meaning because it expresses its purpose in an indefinite manner.” HK New Plan Exchange Prop. Owner I, LLC v. Coker, 375 S.C. 18, 24, 649 S.E.2d 181, 184 (Ct. App. 2007). When a contract is ambiguous, the court’s primary objective must be to discern the intent of the parties. Ecclesiastes Prod. Ministries v. Outparcel Assocs., 374 S.C. 483, 497, 649 S.E.2d 494, 501 (Ct. App. 2007). In ascertaining intent, the court will examine the totality of the contract and the language used by the parties. The court will also strive to discover the situation of the parties, along with their purposes at the time they entered the contract. Id. at 498, 649 S.E.2d at 502. “In arriving at the intention of the parties . . . , the subject matter, the surrounding circumstances, the situation of the parties, and the object in view and intended to be accomplished by the parties at the time, are to be regarded.” Id. at 499, 649 S.E.2d at 502 (quoting Brady v. Brady, 222 S.C. 242, 246-47, 72 S.E.2d 193, 195 (1952)). We agree with the master’s finding the duration of the SSA is ambiguous as the parties’ intent is not clearly discernable from the language of the SSA. We believe the testimony in the record reasonably supports the master’s finding the parties intended the SSA to be in effect for so long as Premier was doing business at Barefoot. Bradley Goulding, part owner and chief operating/financial officer of Premier Resorts International, testified Premier would not have entered into the loan-extension agreement without the SSA. He further testified Premier was making a long-term investment in the Myrtle Beach area and would need the advantages offered by the SSA for as long as they were doing business at Barefoot. Barbara Zimonja, co-owner and president of Premier Resorts International, testified she understood the SSA would be in effect as long as Premier was in business at Barefoot. Zimonja also stated Barefoot was resistant to allowing Premier to have control of the tee time sheets, but eventually Barefoot agreed to the SSA. In an e-mail, Thomas Trefor, an attorney acting as general counsel for Barefoot at the time the SSA was executed, acknowledged the payoff of the loan did not affect the status of the SSA. He further testified as follows: Q. Did you have any understanding as to how long the parties intended --- Whether they were contractual obligations or not --- how long these items mentioned in the Shared Services Agreement were to be enforced? A. My understanding was the intention here was that it be in perpetuity. I’ll point out, however, that the reason that Barefoot --- or actually Larry Young and Danny Young were willing to agree to this provision, if it were contractually binding on them, was that they were really obligated to do it to Bank of America and, if they had engaged in this business at Barefoot, they’d be in default of the seventy-five million dollar loan. Q. When you say, “in perpetuity,” do you mean, “in perpetuity,” or do you mean, “perpetuity, so long as Barefoot is in business at the beach.” . . . A. The way that it’s drafted, it would appear to be a claim in true perpetuity. In practice, if Barefoot is no longer in business, it becomes unenforceable. Larry Young, one of the principal owners of Barefoot, admitted the SSA was intended to help ensure the availability of golf tee times for Premier clients. It logically follows Premier intended to accomplish this goal by having control of the tee time sheets as set forth in Paragraph 3(c) of the SSA for as long as they were doing business at Barefoot. Larry Young and Danny Young, another principal owner in Barefoot, testified the SSA was to be re-evaluated periodically to see if it continued to be mutually beneficial to both parties. However, their testimony indicated adjustments to the SSA were contemplated primarily with regard to the release dates for the blocked tee times.[4] While Barefoot had little negotiating power in the agreement considering the need for the loan extension, they ultimately, and perhaps reluctantly, agreed to give control of the tee sheets to Premier. The surrounding circumstances and the testimony in the record support the master’s finding that the agreement was to last “so long as” Premier was doing business at Barefoot. II. Barefoot’s Breach of the SSA Next, Barefoot contends the master erred in finding it breached the SSA. We disagree. Barefoot’s argument on lack of breach goes hand in hand with its arguments regarding the validity and duration of the SSA. Barefoot does not deny it took control of the tee time sheets. Barefoot simply contends this action provided notice to Premier that Barefoot intended to terminate the SSA. See Carolina Cable Network v. Alert Cable TV, Inc., 316 S.C. 98, 102, 447 S.E.2d 199, 201 (1994) (holding when no intent can be gleaned from the circumstances surrounding a contract, the court will find the contract to be terminable by either party given reasonable notice). However, as previously discussed, we find the master did not err in determining the SSA was to be in place so long as Premier was doing business at Barefoot. Consequently, the SSA was not terminable at will by either party, and Barefoot’s actions constituted a breach of the agreement. III. Grant of Injunctive Relief Barefoot also appeals the master’s issuance of a temporary injunction. The injunctive order allowed Barefoot to retain control of the tee time sheets. It also prevented Premier from booking any tee times outside of its blocked tee times until Premier had booked at least eighty-five percent of its blocked tee times. Finally, the order required Barefoot to leave the required tee times blocked until sixty days prior at which time the time could be released. Upon the issuance of the master’s final order, the temporary injunction expired rendering this issue moot. Therefore, we decline to address it. See Curtis v. State, 345 S.C. 557, 568, 549 S.E.2d 591, 597 (2001) (holding when a is moot). IV. Damages Next, Barefoot contends the trial court erred in awarding Premier $161,369 in damages when that award was not supported by the evidence. We disagree. Barefoot appears to argue because Premier was paid the four percent commission on all tee times booked during the breach, Premier suffered no damages. However, a plaintiff is allowed to offer evidence of lost profits so long as the circumstances indicate lost profits would have been within the contemplations of the parties at the time of the contract. Drews Co. v. Ledwith-Wolfe Assocs., 296 S.C. 207, 213, 371 S.E.2d 532, 535 (1988). In this case, all the parties understood the control of the tee sheets would have substantial bearing on the success of Premier at Barefoot. The parties would have also contemplated loss of control of the tee sheets would reduce the number of bookings by Premier. The lost profits need not be reduced to a mathematical certainty to be recoverable. Minter v. GOCT, Inc., 322 S.C. 525, 528, 473 S.E.2d 67, 70 (Ct. App. 1996). However, the damages cannot be left to conjecture, guess, or speculation. Id. Here, Premier’s expert, Robert Mark Woodworth, testified he compared booking trends for Premier both “pre-breach and post-breach.” He then compared those figures with Premier bookings made during the breach when Barefoot had control of the tee time sheets. Woodworth testified he then compared Premier’s performance during the breach against other similar businesses in the area. Using all of that data, he arrived at the conclusion Premier lost package golf commission income in the amount of $79,970 and non-package golf commission in the amount of $89,399. Woodworth’s testimony established Premier’s lost profits to a reasonable degree of certainty providing evidence to support the master’s award. V. Retention of Jurisdiction Finally, Barefoot argues the master erred in retaining jurisdiction “for the purpose of compliance with this Order and with the provisions of the Shared Services Agreement, and for determining such issues as may arise thereunder.” This issue was not raised to the trial court in its motion to alter or amend the judgment. Therefore this issue is not preserved for our review. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (holding issues not raised and ruled upon in the trial court will not be considered on appeal). For all of the foregoing reasons, the decision of the trial court is AFFIRMED. SHORT and KONDUROS, J.J., and CURETON, A.J., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR. [2] Barefoot is equally owned by Barefoot Golf Club, LLC and Legends Barefoot, LLC (“Legends Barefoot”). [3] We have combined Appellant’s Issues 1 and 2. [4] Danny Young testified he had negotiated with Bradley Goulding for the unbooked blocked tee times to be released ninety days in advance so they could be booked through other avenues. However, the SSA contained a sixty-day provision. Young stated Goulding assured him at the signing of the SSA that the timing of the releases could be reviewed and adjusted periodically as needed.