Town of Sullivan's Island v. Nathan Bluestein

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Town of Sullivan's Island, Respondent,

v.

Nathan Bluestein and Theodore Albenesius, III,
Appellants.

Appellate Case No. 2023-001082

Appeal from Charleston County
Jennifer B. McCoy, Circuit Court Judge

Opinion No. 6139
Heard October 8, 2025 – Filed February 25, 2026

AFFIRMED

James Bernard Hood and Virginia Rogers Floyd, both of
Hood Law Firm, LLC, of Charleston; Lisa Brennan Bisso,
of Charleston; and Deborah Harrison Sheffield, of
Columbia, all for Appellants.

Alexandra Harrington Austin, of Nexsen Pruet, LLC, of
Charleston; Clarence Ross Turner, IV, of The Turner
Agency Inc., of Greenville; and William W. Wilkins, of
Billy Wilkins Law, LLC, of Greenville, all for
Respondent.
GEATHERS, J.: This case arises out of a declaratory judgment action brought by
Respondent Town of Sullivan's Island (the Town) against Appellants Nathan
Bluestein and Theodore Albenesius, III (collectively, Property Owners). Property
Owners appeal the circuit court's order granting summary judgment in favor of the
Town, arguing the circuit court erred by (1) finding the settlement agreement
between the parties was invalid and unenforceable because it involved the Town's
legislative functions or governmental powers; (2) finding the settlement agreement
was otherwise unreasonable as a matter of law because of its perpetual duration; (3)
refusing to enforce the settlement agreement's severability clause; and (4) refusing
to reinstate Property Owners' initial action against the Town after invalidating the
settlement agreement. We affirm.

FACTS AND PROCEDURAL HISTORY

The Town is the fee simple owner of accreted land1 located along the Atlantic
Ocean on Sullivan's Island. Property Owners purchased property in the Town that
abuts the accreted land. The settlement agreement that is the focus of our analysis
arose from Property Owners' initial action concerning the Town's maintenance
obligations under the deed for the accreted land.

The deed for the accreted land includes the following restrictive covenants:

1. Except as otherwise provided or permitted in
Paragraphs 2 and 3 hereof, the [accreted land] shall remain
in its natural state, no changes shall be made to its
topography or vegetation[,] and no structures or
improvements shall be erected on the [accreted land].

2. Notwithstanding the provisions of Paragraphs 1 and 3
and subject to the limitations of Paragraph 4, the Town
Council is given the unrestricted authority to trim and
control the growth of vegetation for the purposes of
mosquito control, scenic enhancement, public and

1
Accreted land is land that has gradually increased in size due to the deposit of sand,
soil, or other materials caused by movement of water sources, such as rivers, lakes,
or the sea. See Accretion, Black's Law Dictionary (11th ed. 2021).
emergency access to the Atlantic Ocean[,] and providing
views of the ocean and beaches to its citizens.

3. Notwithstanding the provisions of Paragraph 1 hereof,
and subject to the limitations of this Paragraph 3 and of
Paragraph[] 2 . . . the Town . . . shall have the right to
improve, change, modify[,] or alter the [accreted land]
only if such actions are to further or effect one or
more . . . enumerated public objectives or policies
("Public Policies") . . . .

(emphasis added). Under the restrictions of paragraph 3, should the Town choose
to trim or remove vegetation on the accreted land, it must do so in furtherance of at
least one of the following Public Policies: (1) drainage; (2) mosquito control;
(3) maintenance of public walkways and emergency access to the Atlantic Ocean;
(4) beach renourishment; (5) erosion control; (6) vegetation management; (7)
educational programs; (8) public safety; (9) public health; and (10) scenic
enhancement.

Furthermore, for the Town to take any action permitted under paragraph 3,
the deed requires the Town council to make the following findings of fact in
writing: (1) the proposed public action is solely for the purpose of furthering one or
more of the Public Polices; (2) the proposed public action is necessary for the Town's
health, safety, or general welfare; (3) the benefits of the action outweigh any damage
done to the accreted land's value in its natural state; and (4) in making the prior
findings of fact, the Town considered the cumulative effect of the action, alternative
methods, and probable results of not taking the action. Additionally, the deed gives
property owners in the Town authority to "seek any appropriate remedy for any
violation [of the deed's restrictions], including, but not limited to, injunctive relief to
force a termination of the violation or to permit restoration of the area damaged by
a[] prohibited activity."

In July 2010, Property Owners brought several causes of action against the
Town, including a declaratory judgment action to determine how the Town must
maintain the accreted land's vegetation to comply with the deed.
The master-in-equity granted summary judgment in favor of the Town as to all
claims, and this court affirmed the master's order. See Bluestein v. Town of Sullivan's
Island, 424 S.C. 362, 818 S.E.2d 239 (Ct. App. 2018). Our supreme court
reversed—finding that genuine issues of material fact existed as to the Town's
maintenance responsibilities of the accreted land and that such responsibilities under
the deed were ambiguous—and remanded the case for further proceedings. See
Bluestein v. Town of Sullivan’s Island, 429 S.C. 458, 839 S.E.2d 879 (2020).

Following remand, Property Owners and the Town negotiated a settlement
agreement, and the Town's council members passed a resolution authorizing the
agreement. The resolution's findings of fact, which were incorporated into the
settlement agreement, provided that "[t]he settlement, and implementing steps
associated therewith, [were] solely undertaken to further specific enumerated,
permissible public purposes under the [d]eed" and were "necessary for the health,
safety, and general welfare of the Town." On October 7, 2020, the parties executed
the settlement agreement.

As part of the settlement agreement, the Town agreed to implement a
"selective thinning" plan consisting of the removal and trimming of vegetation on
the accreted land. The selective thinning plan involves two components: (1) initial
trimming of the accreted land (the Initial Trimming Component); and (2) subsequent
and recurring review or maintenance of the accreted land and its vegetation (the
Recurring Review Component).

For the Initial Trimming Component, the settlement agreement requires the
Town to provide part of the funding, and the remainder of the funding is "subject to
receipt of adequate donations or grants," which may include funding from Property
Owners and neighboring homeowners. The agreement directs the Town to begin
trimming or removing vegetation on designated portions of the accreted land once it
receives sufficient funds and gives the homeowners twelve months from the date of
the settlement agreement to provide sufficient funds to the Town. 2

For the Recurring Review Component, the settlement agreement provides the
following:

In order to maintain similar conditions going forward,
with the help of a naturalist the Town would review
changes in the condition of the [accreted land] on a

2
The parties later amended the settlement agreement for the twelve-month period to
commence once "the Town receive[d] necessary regulatory approvals."
recurring basis (for instance, once every five years) with
an eye toward[] making whatever changes might be
necessary to maintain appropriate levels of density and
diversity.

(emphasis added). The parties stipulated that the settlement agreement could not be
"modified or amended, nor [could] any of its provisions be waived, except upon
mutual agreement of all [p]arties or their authorized agents in writing."
(emphasis added). Furthermore, the settlement agreement provides that it would be
"binding upon and inure to the benefit of all the parties, and their heirs, successors[,]
and assigns."

After the parties executed the settlement agreement, the circuit court approved
it, finding that it was proper and "in the best interests of all [p]arties." The parties
later sought approval to amend the agreement,3 and the circuit court issued an order
approving the amendment on April 12, 2021.

On or about May 4, 2021, the Town elected a new town council. On February
21, 2022, the Town brought a declaratory judgment action against Property Owners,
seeking an order that the settlement agreement was invalid and unenforceable. The
Town moved for summary judgment, which the circuit court granted.

In granting summary judgment, the circuit court found the following:

[T]he [s]ettlement [a]greement is invalid and
unenforceable as a matter of law because it involves the
legislative/governmental powers of the Town and purports
to bind the current and future town councils. However,
even if the settlement agreement could somehow be said

3
The parties intended the amendment to address "anticipated third-party regulatory
concerns," "further the spirit of the original settlement agreement," and describe the
work plan "with enough clarity and in enough detail to allow [f]ederal and [s]tate
agencies with permitting authority to determine if the proposed activities [would]
require a permit." The amendment added a more detailed scope of work for the
accreted land and provided that "[t]he [p]arties' statements of general intent, goals,
and desire to balance various interests as described in the original [s]ettlement
[a]greement [were to] remain valid."
to involve only proprietary/business functions, it is still
invalid and unenforceable because it is unreasonable as a
matter of law.

To support the finding that the settlement agreement was unreasonable as a
matter of law, the circuit court concluded that the agreement's provision requiring
that the Town "maintain similar conditions going forward," as well as the provisions
on the agreement's binding effect and modification requirements, imposed
obligations on the Town for a perpetual duration, which was unreasonable and
against public policy.

The circuit court also found that the material terms of the settlement
agreement (specifically, the selective thinning plan and the provision requiring the
Town to "maintain similar conditions going forward") were so interdependent that
they could not be severed without depriving the agreement of any meaningful
substance or effect.

Property Owners filed a motion to alter or amend, and the circuit court denied
the motion. This appeal followed.

ISSUES ON APPEAL

I. Whether the circuit court erred by finding the settlement agreement was
invalid and unenforceable because it involved the Town's legislative
functions or governmental powers.

II. Whether the circuit court erred by finding the settlement agreement was
unreasonable as a matter of law because of its perpetual duration.

III. Whether the circuit court erred by refusing to enforce the settlement
agreement's severability clause.

IV. Whether the circuit court erred by not reinstating Property Owners' initial
action after invalidating the settlement agreement.

STANDARD OF REVIEW
"Declaratory judgments in and of themselves are neither legal nor equitable.
The standard of review for a declaratory judgment action is therefore determined by
the nature of the underlying issue." Kinard v. Richardson, 407 S.C. 247, 256, 754
S.E.2d 888, 893 (Ct. App. 2014) (citation omitted) (quoting Campbell v. Marion
Cnty. Hosp. Dist., 354 S.C. 274, 279, 580 S.E.2d 163, 165 (Ct. App. 2003)).

"In South Carolina jurisprudence, settlement agreements are viewed as
contracts." Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802
(Ct. App. 2009). "An action to construe a contract is an action at law reviewable
under an 'any evidence' standard." Pruitt v. S.C. Med. Malpractice Liab. Joint
Underwriting Ass'n, 343 S.C. 335, 339, 540 S.E.2d 843, 845 (2001). "Whether a
contract is against public policy or is otherwise illegal or unenforceable is generally
a question of law for the court." Palmetto Mortuary Transp., Inc. v. Knight Sys.,
Inc., 424 S.C. 444, 452, 818 S.E.2d 724, 729 (2018) (quoting Milliken & Co. v.
Morin, 399 S.C. 23, 30, 731 S.E.2d 288, 291 (2012)); 17B C.J.S. Contracts § 1031
(2025). This court reviews questions of law de novo. See Palmetto Mortuary, 424
S.C. at 452, 818 S.E.2d at 729.

This court reviews the grant of a summary judgment motion under the same
standard applied by the trial court pursuant to Rule 56(c), SCRCP. See Jackson v.
Bermuda Sands, Inc., 383 S.C. 11, 14 n.2, 677 S.E.2d 612, 614 n.2 (Ct. App. 2009).
Summary judgment shall be granted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Rule 56(c), SCRCP. "At the summary judgment
stage of litigation, the court does not weigh conflicting evidence with respect to a
disputed material fact." S.C. Prop. & Cas. Guar. Ass'n v. Yensen, 345 S.C. 512, 518,
548 S.E.2d 880, 883 (Ct. App. 2001). Rather, "[t]he purpose of summary judgment
is to expedite the disposition of cases not requiring the services of a fact finder."
John Deere Constr. & Forestry Co. v. N. Edisto Logging, Inc., 443 S.C. 424, 434,
904 S.E.2d 889, 894 (Ct. App. 2024).

"[A]n adverse party may not rely on the mere allegations in [the] pleadings to
withstand a summary judgment motion[] but must set forth specific facts showing
there is a genuine issue [of material fact] for trial." Strickland v. Madden, 323 S.C.
63, 68, 448 S.E.2d 581, 584 (Ct. App. 1994). "In determining whether any triable
issues of fact exist, the evidence and all inferences which can be reasonably drawn
from the evidence must be viewed in the light most favorable to the nonmoving
party." Moore v. Weinberg, 383 S.C. 583, 588, 681 S.E.2d 875, 878 (2009).

LAW AND ANALYSIS

Property Owners argue the circuit court erred by invalidating the settlement
agreement because the subject matter of the agreement involves the Town's business
or proprietary functions and, thus, could bind the current and future town councils.
We disagree.

There is a "public interest in the finality of settlement agreements,"
Condon v. State, 354 S.C. 634, 642, 583 S.E.2d 430, 434 (2003), but we still must
view this settlement agreement as a contract between the Town and Property
Owners. See Pee Dee Stores, 381 S.C. at 241, 672 S.E.2d at 802 ("In South Carolina
jurisprudence, settlement agreements are viewed as contracts."). As such, if the
subject matter of the settlement agreement entered into by the prior town council
involves the Town's legislative functions or governmental powers, the agreement
cannot bind the current and future town councils.

If the term of the contract in question extends beyond the
term of the governing members of the municipality
entering into the contract, the validity of the contract is
dependent on the subject matter of the contract. The
general rule is that, if the contract involves the exercise of
the municipal corporation's business or proprietary
powers, the contract may extend beyond the term of the
contracting body and is binding on successor bodies if, at
the time the contract was entered into, it was fair and
reasonable and necessary or advantageous to the
municipality. However, if the contract involves the
legislative functions or governmental powers of the
municipal corporation, the contract is not binding on
successor boards or councils.

Piedmont Pub. Serv. Dist. v. Cowart (Cowart I), 319 S.C. 124, 132, 459 S.E.2d 876,
880 (Ct. App. 1995) (emphases added), aff'd, 324 S.C. 239, 478 S.E.2d 836 (1996);
see also 10A McQuillin, The Law of Municipal Corporations, § 29:103 (3d ed. 2025)
("To the extent that a governmental contract impinges on a municipality's ability to
legislate freely, the contract is ultra vires and void."); 64 C.J.S. Municipal
Corporations § 1140 (2025) ("Municipal corporations have no authority . . . to make
contracts that will embarrass or control them in the performance of their legislative
powers and duties."); 56 Am. Jur. 2d Municipal Corporations, Etc. § 134 (2025) ("A
city board exercising legislative authority lacks the power to bind its successors with
regard to governmental functions . . . . On the other hand, the restriction regarding
binding successors does not apply to the exercise of the business powers of a
municipal corporation.").

[W]here the contract involved relates to governmental or
legislative functions of the council, or involves a matter of
discretion to be exercised by the council[,] unless the
statute conferring power to contract clearly authorizes the
council to make a contract extending beyond its own term,
no power of the council to do so exists, since the power
conferred upon municipal councils to exercise legislative
or governmental functions is conferred to be exercised as
often as may be found needful or politic, and the council
presently holding such powers is vested with no discretion
to circumscribe or limit or diminish their efficiency, but
must transmit them unimpaired to their successors.

Cowart I, 319 S.C. at 132, 459 S.E.2d at 880-81 (quoting Newman v. McCullough,
212 S.C. 17, 23, 46 S.E.2d 252, 255 (1948)).

[T]he difference between proprietary and governmental
functions is often difficult to determine, because, "[a]s the
scope of 'governmentality' expands, the intertwining and
overlapping of such functions make it increasingly more
difficult to draw any definitive line of separation."
However, it is clear the rule is intended to protect the
public by insuring that each governing body has available
to it the powers necessary to effectively carry out its
duties. Thus, when determining whether a contract is
binding on successor boards, it appears that the "[t]rue
test is whether the contract itself deprives a governing
body, or its successor, of a discretion which public policy
demands should be left unimpaired."
Cowart I, 319 S.C. at 132-33, 459 S.E.2d at 881 (second and third alteration in
original) (emphasis added) (first quoting Valvano v. Bd. of Chosen Freeholders of
Union Cnty., 183 A.2d 450, 452 (N.J. Super. Ct. App. Div. 1962); then quoting Plant
Food Co. v. City of Charlotte, 199 S.E. 712, 714 (N.C. 1938)).

Our courts have consistently invalidated contracts that bind future governing
bodies because the contracts involved the bodies' legislative functions or
governmental powers. See, e.g., G. Curtis Martin Inv. Tr. v. Clay, 274 S.C. 608,
612, 266 S.E.2d 82, 84-85 (1980) (holding that sewer service constituted a
governmental function of a quasi-municipal sewer district); City of Beaufort v.
Beaufort-Jasper Cnty. Water & Sewer Auth., 325 S.C. 174, 179-82, 480 S.E.2d 728,
731-33 (1997) (holding that the power to decide when a special purpose district can
provide water to those in its service area was a governmental function of said
district); Cowart I, 319 S.C. at 133, 459 S.E.2d at 881 (holding that a public service
district's decision to employ an administrator and set the terms of the administrator's
employment was a governmental function of said district).

In Clay, a sewer district entered an agreement in which a private company
transferred a privately-owned sewer system to the sewer district; the private
company, however, reserved the right to approve or disapprove of the sewer system's
connection to large commercial establishments, apartments, townhouses, and
condominiums. 274 S.C. at 610, 266 S.E.2d at 83-84. Our supreme court held that,
though the sewer district had authority to engage in discretionary contracting, the
reservation by the private company was unlawful because the sewer district
abdicated its "statutory and constitutional responsibility to act for the public welfare
to a private party who has no duty to give the public welfare any deliberation." Id.
at 612, 266 S.E.2d at 84-85.

In City of Beaufort, a water and sewer authority contracted with municipalities
to sell water to the municipalities. 325 S.C. at 177, 480 S.E.2d at 730. The contested
clauses in the contract at issue prohibited the authority from selling its water for use
in Beaufort County without the municipalities' consent. See id. Our supreme court
determined that the contested clauses deprived the authority of its ability to provide
utility services to "persons [the authority] would have the right to serve but for the
[c]ontested [c]lauses." Id. at 181, 480 S.E.2d at 732. Thus, our supreme court held
the contested clauses were an unlawful delegation of governmental power "both
because the [c]ontested [c]lauses [bound] future governing boards and, more
importantly, because they g[a]ve away too much power in themselves." Id. at 182,
480 S.E.2d at 732-33.

In Cowart I, a public service district entered a twenty-year employment
contract with the district's administrator. 319 S.C. at 127, 459 S.E.2d at 877. The
contract contained a severance clause requiring the district to pay the administrator
two years' salary following the district's termination of the administrator's
employment, even "in the event of any violation by [the] employee." Id. The parties
later signed a separate employment agreement encompassing the severance
provisions in the original agreement, allowing severance pay for five years.
See id. at 127, 459 S.E.2d at 877-78. This court held that the employment agreement
was void as a matter of public policy because the agreement, in running for twenty
years and requiring severance pay for five years even if the administrator breached
the agreement, caused "an enormous impairment of the [d]istrict's power and
authority" to employ and set terms of employment for the district's administrator, a
public official. Id. at 133, 459 S.E.2d at 881.

Here, we recognize that the Town has a proprietary interest in the accreted
land due to its ownership of and control over the land. See Proprietary, Black's Law
Dictionary (12th ed. 2024) ("[o]f, relating to, or holding as property"). However,
unlike an agreement entered into by a private business that is tied to the commercial
interests of the business, the settlement agreement's selective thinning plan is not
concerned with maintaining the land (nor settling the initial action against the Town)
for some financial benefit; it is concerned with maintaining the land in furtherance
of the public health and safety of the general public. See Governmental Function,
Black's Law Dictionary (12th ed. 2024) (defining a governmental function as
conduct by a government agency "that is expressly or impliedly mandated or
authorized by constitution, statute, or other law and that is carried out for the benefit
of the general public"); 63 C.J.S. Municipal Corporations § 875 (2025) (defining a
governmental function as "one that benefits the general public and is performed for
the common good of all" and a proprietary function as "one intended primarily for
the advantage and benefit of persons within the corporate limits of the municipality
rather than for use by the general public"); 57 Am. Jur. 2d Municipal, Etc., Tort
Liability § 44 (2025) ("Governmental functions are public acts that are integral in
some way to government while proprietary functions are of a sort in which private
persons or businesses might engage for profit."); 56 Am. Jur. 2d Municipal
Corporations, Etc. § 167 (2025) ("Generally, the principal test for determining
whether a function is 'governmental' or 'proprietary' is whether the act performed is
for the common good of all, or whether it is for the special benefit or profit of the
corporate entity.").

The Town is statutorily authorized to enact "regulations, resolutions, and
ordinances, not inconsistent with the [c]onstitution and general law of this
[s]tate . . . which appear[] to it necessary and proper for the security, general
welfare, and convenience of the municipality or for preserving health, peace, order,
and good government in it."4 S.C. Code Ann. § 5-7-30 (Supp. 2025) (emphasis
added).

Under the authority of section 5-7-30, the Town enacted a resolution that
authorized the settlement of the initial action, detailed the selective thinning plan,
and provided that both the settlement agreement and the selective thinning plan were
"necessary for the health, safety, and general welfare of the Town" and were "solely
undertaken to further specific enumerated, permissible public purposes under the
deed." (emphasis added). The "enumerated, permissible public purposes" are the
Public Policies listed in the deed, which include, but are not limited to, public safety
and public health. The resolution also provided a statement that the benefits of the
selective thinning plan outweighed any damage done to the accreted land's value in
its natural state and a discussion of the cumulative effect of the plan, alternative
methods to the plan, and probable results of not executing the plan.

The Town not only passed the resolution in furtherance of public health and
safety under its authority under section 5-7-30, but it also included findings of fact
in the resolution that were required under the deed to be made before the Town could

4
Section 5-7-30 and Article VIII of the South Carolina Constitution give the Town
authority to enter contracts in furtherance of such regulations, resolutions, and
ordinances. See S.C. Const. art. VIII, § 17 ("The provisions of this [c]onstitution
and all laws concerning local government shall be liberally construed in their favor.
Powers, duties, and responsibilities granted local government subdivisions by this
[c]onstitution and by law shall include those fairly implied and not prohibited by this
[c]onstitution."); see also Williams v. Town of Hilton Head Island, 311 S.C. 417,
422, 429 S.E.2d 802, 805 (1993) (noting that municipalities have constitutional and
statutory "authority to enact regulations for government services deemed necessary
and proper for . . . preserving health, peace, order[,] and good government,"
removing the need for additional statutory authorization "so long as such regulations
are not inconsistent with the [c]onstitution and general law of the state").
improve, change, modify, or alter the accreted land. These findings of fact, along
with the details of the selective thinning plan, were effectively incorporated into the
settlement agreement.

Thus, by passing the resolution with language subsequently incorporated into
the settlement agreement, the Town acted both in its statutorily-authorized authority
and in furtherance of public health and safety to formalize a plan to maintain the
accreted land. For these reasons, we hold the subject matter of the settlement
agreement concerns the Town's governmental function to maintain land it owns in
furtherance of public health and safety.5 Because our analysis on the subject matter
of the settlement agreement above applies to the entire agreement and is dispositive
of the second and third issues on appeal, including the severability of the agreement,
we need not address those issues. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999). Further, the fourth issue,
concerning the reinstatement of Property Owners' initial action against the Town, is
not preserved for appeal because Property Owners did not raise this issue to the
circuit court. See State v. Stahlnecker, 386 S.C. 609, 617, 690 S.E.2d 565, 570
(2010) ("For an issue to be properly preserved it has to be raised to and ruled on by
the trial court.").

5
Additionally, like the contracts in Clay, City of Beaufort, and Cowart I, the
settlement agreement impairs, if not expressly delegates, authority the Town has a
right to exercise under the constitution and law of this state. See Cowart I, 319 S.C.
at 132-33, 459 S.E.2d at 881 (noting the "true test" as to whether a contract is binding
on successor boards is "whether the contract itself deprives a governing body, or its
successor, of a discretion which public policy demands should be left unimpaired").
Before the settlement agreement, the prior town council could conduct maintenance
on the accreted land to improve public health and safety by simply exercising its
statutory authority and passing a resolution with findings of fact as required by the
deed. But as a result of this settlement agreement, the decisions of the current or
future town councils to alter or stop the selective thinning plan—even if done under
the town council's statutorily-authorized authority and in furtherance of public health
and safety—would require and be conditioned upon the consent of private
individuals, specifically, Property Owners (who have no statutory duty to give public
health and safety any deliberation) as the agreement "may not be modified or
amended . . . except upon mutual agreement of all [p]arties or their authorized
agents in writing." (emphasis added).
CONCLUSION

For the foregoing reasons, the circuit court's grant of summary judgment is

AFFIRMED.

KONDUROS and VINSON, JJ., concur.