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Norwest Properties, LLC v. Strebler

Court of Appeals of South Carolina

August 1, 2018

Norwest Properties, LLC, Appellant,
v.
Michael T. Strebler, Lisa W. Strebler, and Paul J. Mitchell, Defendants, Of whom Michael T. Strebler and Lisa W. Strebler are the Respondents. Appellate Case No. 2016-000636

          Submitted May 1, 2018

          Appeal From Richland County Joseph M. Strickland, Master-in-Equity

          Kathleen Chewning Barnes, of Barnes Law Firm, LLC, of Hampton; Phillip Anthony Curiale, of Auburn, WA; and Brian L. Boger, of Columbia; all for Appellant.

          Robert L. Widener and Andrew Gordon Melling, both of McNair Law Firm, PA, of Columbia, for Respondents.

          HILL, J.

         This is an appeal from a damages award arising from the failed sale of a residential lot. The Master awarded the Seller, Respondents Michael T. Strebler and Lisa W. Strebler (collectively "Seller"), $40, 388 in damages for breach of contract. The Buyer, Appellant Norwest Properties, LLC, appeals claiming the award (except $350 in costs) constitutes special damages that Seller failed to plead. We agree, and reverse.

         I.

         Seller listed the lot for sale in 2005. They soon accepted Buyer's offer for the $175, 000 asking price. The parties signed a contract and set a closing date. Buyer commissioned a survey of the lot, which revealed numerous encroachments on the property by an adjoining landowner, Paul J. Mitchell. It transpired Seller had previously granted Mitchell permission for the encroachments, which were never recorded or otherwise memorialized.

         After reviewing the survey, Buyer requested Seller remove the encroachments before closing. The closing date passed without resolution.

         On November 18, 2005, Buyer sued Seller for specific performance and breach of contract. Seller appeared pro se, filing an Answer denying Buyer's allegations and asserting Buyer breached the contract. The only reference to any claim for damages appears in Seller's prayer for relief, which asks for "costs and damages."

         The Master held a bench trial on November 9, 2009. The only testimony at this hearing related to Seller's breach of contract damages occurs amidst the following brief exchange while Mr. Strebler is on the stand:

Mr. Strebler: [I]s it appropriate in my testimony to ask for damages, as I sit here?
THE COURT: Well - - in your Pleadings did you ask for ...

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