Lady Beaufort, LLC & Tideland Realty, Inc. v. Hird Island Investments, Inc.

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lady Beaufort, LLC & Tideland Realty, Inc., Appellants,

v.

Hird Island Investments, Inc., Sherwood N. Fender,
Addison D. Fender, Martha B. Fender, William B.
Bowen, Lady Kemmerlin, LLC, Brickyard Holdings, Inc.
and A&K Holding Co., LLC, Defendants,

AND

William M. Bowen, Third-Party Plaintiff,

v.

James S. Kerr and Matt Trumps, Third-Party Defendants,

Of Which Hird Island Investments, Inc. and Sherwood N.
Fender are the Respondents.

Appellate Case No. 2019-001270

Appeal From Beaufort County
Marvin H. Dukes, III, Circuit Court Judge

Unpublished Opinion No. 2022-UP-252
Heard April 7, 2022 – Filed June 8, 2022

DISMISSED AS MOOT
Andrew K. Epting, Jr. and Jaan Gunnar Rannik, both of
Epting & Rannik, LLC, of Charleston, for Appellants.

William M. Bowen, of William M. Bowen, PA, of Hilton
Head Island, and H. Fred Kuhn, Jr., of Moss Kuhn &
Fleming, PA, of Beaufort, both for Respondents.

PER CURIAM: This is a companion case to Lady Beaufort, LLC v. Hird Island
Investments, Inc., Appellate Case No. 2018-001969, which we reversed in a
separate opinion.

Hird Island Investments, Inc. (Hird Island) entered into a real estate transaction (the
Contract) to sell 9 Sams Point Rd to its neighbor, Lady Beaufort, LLC (Lady
Beaufort) for $260,000. Tideland Realty, Inc. (Tideland Realty) brokered the
transaction. The Contract provided closing was to take place within seven days of
the conclusion of the thirty-day due diligence period, which ended on October 1,
2013, making the final date for closing October 8, 2013. Because of issues regarding
title insurance, the Contract did not close by October 8, 2013, and on October 10,
2013, Hird Island sold 9 Sams Point Rd. to Inverness, LLC (Inverness) for $245,000.

Months later, Lady Beaufort bought 9 Sams Point Rd. from Inverness for $285,000
and filed a summons and complaint against Hird Island for breach of contract. The
complaint was amended to add Sherwood Fender, Hird Island's principal, and allege
additional claims for breach of contract accompanied by a fraudulent act, fraudulent
transfer, and negligent misrepresentation. Hird Island counterclaimed for breach of
contract. The lawsuit was referred by consent to the Master for disposition, and it
proceeded to trial on March 1, 2017. The Master ruled Hird Island breached the
Contract with Lady Beaufort, and it found Fender liable for negligent
misrepresentation and breach of contract accompanied by a fraudulent act, and
therefore, Fender was personally liable for any damages resulting from the breach.

The Master awarded Lady Beaufort $87,578.56, including $25,000 in actual
damages plus prejudgment interest and attorney's fees through the date of the trial in
the amount of $53,924.41, and Tideland Realty $17,500.17. Hird Island and Fender
filed a motion to reconsider the order, and after a hearing on the motion, the Master
filed an order granting Hird Island and Fender's motion to reconsider as to the award
of attorney's fees and reopening the record to allow the parties to submit evidence as
to attorney's fees. After holding a hearing on attorney's fees, the Master filed an
order amending its prior order to only allow Lady Beaufort to recover attorney's fees
up until the date it obtained the property from Inverness, reducing its attorney's fee
award to $17,857.00. The parties all appealed this order in November 2018 in the
companion appeal.

On June 20, 2019, Fender filed a motion to post bond in satisfaction of the judgments
against him. Lady Beaufort and Tideland Realty responded to the motion, noting
they "could be amenable to the posting of an appropriate bond," but arguing the bond
amount proposed by Fender was too low because the bond would not cover the total
judgment amount should they win their pending appeal and receive all of their
attorney's fees, including appellate attorney's fees, totaling $349,078.49. After a
hearing on the motion, the Master entered an order permitting Fender to post a cash
bond–in an amount one and a half times the current judgment amounts, totaling
$123,461.28–in favor of Lady Beaufort and Tideland Realty and transferring the
judgment liens from Fender's assets to these bonds. The Master also ruled that
should this court affirm the judgments in favor of Lady Beaufort and Tideland Realty
against Fender and the bond did not satisfy the judgments, Fender would remain
liable. This appeal follows.

In our opinion in the companion appeal, we reversed the Master's findings that (1)
Hird and Island and Fender breached the Contract and (2) Fender was liable for
negligent misrepresentation and breach of contract accompanied by a fraudulent act.
Accordingly, we reversed the award of attorney's fees to Lady Beaufort and Tideland
Realty. Based on our reversal of the award of attorney's fees to Lady Beaufort and
Tideland Realty, we dismiss this appeal as moot. Any decision we could make
would have no "practical legal effect" because Lady Beaufort and Tideland Realty
are owed no attorney's fees and any opinion we render as to the bond will not affect
this outcome. See Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474,
477 (2006) ("Generally, this Court only considers cases presenting a justiciable
controversy."); id. ("A justiciable controversy exists when there is a real and
substantial controversy which is appropriate for judicial determination, as
distinguished from a dispute that is contingent, hypothetical, or abstract."); id. at 26,
630 S.E.2d at 477 ("A moot case exists where a judgment rendered by the court will
have no practical legal effect upon an existing controversy because an intervening
event renders any grant of effectual relief impossible for the reviewing court."); id.
("If there is no actual controversy, this Court will not decide moot or academic
questions.").

DISMISSED AS MOOT.
GEATHERS and HILL, JJ., and LOCKEMY, A.J., concur.