A South Carolina state appeals court has reversed and remanded a lower court’s decision that granted summary judgment to the University of South Carolina (USC) and the USC Gamecock Club in a dispute about whether it could charge a “lifetime” booster for parking at athletic events.
In 1987, the Rosen family — Harvey J. Rosen, Joseph B. Rosen, and Rebecca Nurick — donated approximately $140,000 in money and property to USC and, and in exchange, became Lifetime Silver Spur Scholarship members in the Gamecock Club. The parties executed contracts memorializing the terms of the agreement, which provided for the following to the Rosen family:
• Four Season Football Tickets (Best Available)
• Additional Four Season Football Tickets (Total of 8)
• Assigned Reserved Parking
• Second Priority on Away and Bowl Game Tickets
• Tickets May Be Assigned to One Designated Heir
• Four Season Basketball Tickets (Best Available)
• Assigned Parking at the Coliseum (If Available)
• Second Priority on Away and Tournament Game Tickets
• Second Priority on any Tickets Involving any other South Carolina Athletic Events
Also as part of the contract, each of the Rosens designated a beneficiary to receive the lifetime membership upon their respective deaths. This designation provided: “Upon the death of [ ], this Lifetime Silver Spur membership will be transferred to [ ] for his lifetime only.”
In 2007, the University initiated a fee for the assigned reserved parking at the football stadium for the Gamecock Club donors. Until that time, the Rosens had not paid for parking, but had paid for the athletic event tickets.
The Rosens sued, asserting causes of action for breach of contract, conversion, and violation of the South Carolina Unfair Trade Practices Act (UTPA). They amended their complaint to add a claim for a Constitutional taking, and both sides moved for summary judgment.
The trial court found all of the issues were subsumed in the breach of contract issue. To that end, it held the contracts between the University and the Rosens were not ambiguous and contained no language that the privileges were “free” or signified any value was assigned to the privileges. Significantly, it noted the Rosens “had paid for the football tickets over the years, including the increases in the price of the tickets. It found that lifetime donors, such as the Rosens, only received the benefit of maintaining their donor level in the Gamecock Club, regardless of any increase in dues, without ever having to contribute yearly dues in the future.” The court granted the defendants’ motion for summary judgment.
The plaintiffs appealed, arguing that the trial court erred when it found that the language of the contracts was unambiguous.
In considering this argument, the appeals court cited Farr. Farr v. Duke Power Co., 265 S.C. 356, 362, 218 S.E.2d 431, 433 (1975). That court wrote that “whether a contract is ambiguous is to be determined from the entire contract and not from isolated portions of the contract.”
It also pointed to Hawkins, which quoted 17A Am.Jur.2d Contracts § 338, at 345 (1991): “A contract is ambiguous when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages, and terminology as generally understood in the particular trade or business.” Hawkins v. Greenwood Dev. Corp., 328 S.C. 585, 592, 493 S.E.2d 875, 878 (Ct. App. 1997).
The panel in the instant case noted that while the defendants charged for football tickets, they did not require boosters, such as the Rosens, to pay for the parking spaces. “It neither stated additional charges would apply or that the benefits would be free,” wrote the court. “We find the contracts to be ambiguous as to the parking issue.”
The court next turned to the beneficiary provision and whether the plaintiffs have the right to change the beneficiary. The contract “is completely silent as to whether the beneficiary can be changed,” according to the panel.
“(O)ur supreme court and this court have also recognized when an agreement is silent as to a particular matter and because of the nature and character of the transaction an ambiguity arises, parol evidence may be admitted in order to supply a deficiency in the language of the contract. Penton v. J.F. Cleckley & Co., 326 S.C. 275, 281, 486 S.E.2d 742, 745 (1997); Lindsay v. Lindsay, 328 S.C. 329, 343, 491 S.E.2d 583, 591 (Ct. App. 1997); Ebert v. Ebert, 320 S.C. 331, 339, 465 S.E.2d 121, 126 (Ct.App.1995); U.S. Leasing Corp. v. Janicare, Inc., 294 S.C. 312, 318, 364 S.E.2d 202, 205, (Ct. App. 1988). Parol evidence is admissible not to contradict the terms of the written agreement but to determine the intent of the parties as to that particular matter. Id.
“In the present case, the contracts did not specifically prohibit or allow a change of the designated beneficiary. It is impossible from the plain language of the contracts to determine if the parties intended to allow the change. Thus, we find this provision is also ambiguous.”
Harvey J. Rosen et al. v. The University of South Carolina et al.; Ct.App.S.C.; Unpublished Opinion No. 2011-UP-331, 2011 S.C. App. Unpub. LEXIS 401; 6/27/11.
Attorneys of Record: (for appellants) J. Lewis Cromer and Julius W. Babb, IV, of Columbia. (for respondents) William H. Davidson, II, and Andrew F. Lindemann, of Columbia
