Cromwell v. Brisbane

PER CURIAM

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.

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, for Petitioner. Thomas James Rode and Michael A. Timbes, both of Thurmond Kirchner & Timbes, PA, of Charleston, for Respondent.

PER CURIAM : We granted Nordic Group, LLC's petition for a writ of certiorari to review the Court of Appeals' decision in Cromwell v. Brisbane, Op. No. 2018-UP-062 (S.C. Ct. App. filed Feb. 7, 2018). We now dismiss the writ as improvidently granted.

DISMISSED AS IMPROVIDENTLY GRANTED.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur. FEW, J., dissenting in a separate opinion. JUSTICE FEW: I dissent from the dismissal of Nordic Group, LLC's petition for a writ of certiorari because I believe certiorari was properly granted. The master-in-equity erred in ruling the statute of frauds required Nordic's counter-offer to purchase the heirs' property be in writing. The statute of frauds is section 32-3-10 of the South Carolina Code (2007). The statute provides, "No action may be brought . . . " under the circumstances set forth. The statute of frauds is, therefore, a defense to a civil action. See Rule 8(c), SCRCP. The statute of frauds has nothing to do with whether a prospective purchaser of real estate may make an oral offer through its attorney as an officer of the court on the record in a court of record. This is particularly true under these circumstances, where—if the offer is accepted—the resulting agreement would necessarily be reduced to writing in an order of the court. There is nothing in any South Carolina statutory provision or in the common law that requires offers to purchase land in a partition action to be in writing, let alone in the form of a fully executed written contract sufficient to satisfy the statute of frauds. See 68 C.J.S. Partition § 177 (2009) ("In the absence of a statute providing otherwise, an oral bid is sufficient."). In addition, the over-arching principle governing partition actions is "[t]he partition procedure must be fair and equitable to all parties of the action." Zimmerman v. Marsh, 365 S.C. 383, 386, 618 S.E.2d 898, 900 (2005). The presiding judge in a partition action has a fiduciary responsibility to make sure the heirs' rights are protected. This responsibility includes consideration of all offers so the court may choose the offer most favorable to the heirs. By refusing to consider a valid offer—an error of law—the master failed to ensure the procedure was fair, and failed to protect the interests of the heirs. I would have this Court consider the case on the merits.