THE STATE OF SOUTH CAROLINA In The Supreme Court

Stevens and Wilkinson of South Carolina, Inc., Gary Realty Company, Inc., Ga rfield Traub Development, LLC, and Turner Constructio n Company, Plaintiffs,

Of Whom Stevens & Wilkinson of South Carolina, Inc., Gary Realty Company, Inc., and Garfield Traub Development, LLC, are Respondents,

v.

City of Columbia, Paul C. "Bo" Aughtry III, Windsor/Aughtry Co., Inc., Vi sta Hotel Partners, LLC, and Hilton Hotels Corpor ation, Defendants,

Of Whom the City of Columbia, is Petitioner.

Appellate Case No. 2012-208490

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Richland County The Honorable George C. James, Jr., Circuit Court Judge

Opinion No. 27434 Heard January 21, 2014 – Filed August 20, 2014

REVERSED

Michael W. Tighe, D. Reece Williams, III, Richard C.Detwiler, and Kathleen M. McDaniel, all of Callison Tighe & Robinson, LLC, of Columbia, for Petitioner.

Richard A. Harpootlian and Gr aham L. Newman, both of Richard A. Harpootlian, PA, of Columbia; Kenneth M. Suggs and Francis M. Hinson, IV, both of Janet Jenner & Suggs, LLC, of Columbia, for Respondents.

JUSTICE HEARN: The respondents, two developers and an architectural firm, entered into a Memorandum of U nderstanding (MOU) with the City of Columbia as part of a larger project te am to develop a public ly-funded hotel for the Columbia Metropolitan Convention Center. The City eventually abandoned its plan under the MOU, and the respondents br ought suit on several causes of action including breach of contract and equitabl e relief. The City moved for summary judgment arguing the MOU was not a contract and therefore the contract claims failed. The circuit court agr eed and, rejecting the equita ble claims as well, granted summary judgment in favor of the City. The respondents appealed and the court of appeals affirmed in part and reversed in part. Stevens & Wilkinson of South Carolina, Inc. v. City of Columbia , 396 S.C. 338, 721 S.E.2d 455 (Ct. App. 2011).

We reverse.

FACTUAL/PROCEDUR AL BACKGROUND

In January of 2001, the City, seeking a team to develop a publicly-funded, full-service hotel adjacent to the conve ntion center, issued a request for qualifications. The City settled on a pr oject team in December of 2002 that consisted of the architectural firm of Stevens & Wilkinson of South Carolina, Inc. (S&W); Turner Construction Company; Hilton Hotels Corporation; the underwriter Salomon Smith Barney, Inc.; and three developers—Edens & Avant Real Estate Services LLC; Garfield Tr aub Development, LLC; and Gary Realty Company Inc.

In April of 2003, the City and the pr oject team members entered into the

MOU. The MOU documented "the understa ndings reached with respect to the financing, development and operation of the Hotel." It contemplated multiple future agreements to fully define the duties of the parties—the Development Management Agreement, the Design/Build Agreement, the Qua lified Management Agreement, and the HQ Hotel Room Block Commitment, a joint use agreement for parking, and a bond financi ng agreement. At the outset, the MOU provided:This MOU reflects the intent to proceed in good faith to execute definitive written agreements with respect to the business terms and

conditions herein contained. Notw ithstanding anything herein to the contrary, if the City determines that is it not feasible to proceed with the Hotel project it shall ha ve no liability under this MOU.

Additionally, the MOU illustrated the roles of the signatories. The City was to acquire the land and prepare it for construc tion, establish a non-profit corporation

to own the Hotel and issue bonds for fina ncing, and "retain [Salomon] and legal counsel to structure and issue approxi mately $60 million in tax exempt hotel
revenue bonds." Under the MOU, the "D eveloper"—Edens, Garfield, and Gary— "will coordinate design, de velopment, construction a nd delivery of Hotel in

accordance with the terms of the Deve lopment Management Agreement to be finalized between the City or [non-profit co rporation]." S&W, the architect, "shall develop and implement a desi gn review process."

The MOU also addressed payment of the project team, stating:

The Project Team will be responsible for the costs incurred prior to closing the financing. . . . If Hote l financing fails to close as a result of the City not meeting its obligations outlined in the Development Management Agreement, . . . the C ity will reimburse the Project Team for actual, documented costs incurred to that point up to an amount to be agreed upon.

Additionally, the MOU clarified any paym ent to S&W, Turner, or Salomon was contingent upon Salomon successfully clos ing the bond financing. The MOU also stated: "All studies, tests, plans and the like prepared or obtained by the Project Team will be assigned to and become property of the City."

The parties began negotiating the c ontracts required under the MOU during the course of the next year. S&W co mpleted its initial design thereby allowing Turner to determine the guaranteed maxi mum price of the project as envisioned under the MOU, and that price was approve d by the City in July 2003. S&W informed the City it would cease design wo rk for the ninety days remaining until the bond financing closed unless the City agreed to compen sate it for work performed in the interim. S&W submitte d an estimate of $650,000 to continue working until the anticipated bond closing and $75,000 per week after that. On July 30, 2003, the city counc il voted to approve "$650,000 for interim architectural design."Over the course of the negotiations , the bond issuance required to fund the project rose from the $60 million esti mated in the MOU to $71 million by February 2004. Neverthele ss, the non-profit organiza tion accepted the financing plan for the $71 million and set the bond cl osing date as April 1, 2004. However, by mid-March the estimate had climbed to above $72 million. A little over a week after receiving this most re cent financial report, the C ity issued a new request for proposals to develop a privately-funde d hotel for the convention center. Ultimately Windsor/Aughtry Co., Inc. wa s chosen as the developer and it successfully constructed the Hilton.

S&W sued the City for breach of contr act based on the MOU and the July 30 agreement, and on the equitable gr ounds of quantum meruit and estoppel. 1 Gary

and Garfield also sued the City for quantum me ruit and breach of the duty of good faith, later adding a breach of contract claim. The City moved for summary judgment arguing the MOU was not a contr act, it retained no benefit from the work of the project team, and the MOU c ontained no promise to pay S&W.

In a consolidated order, the circuit court granted summary judgment in favor of the City on all claims. 2 Specifically, the court found the MOU was not a binding contract, and instead was a nonbinding agreement to agree in the future. It further held that the respondents failed to present any evidence they had conferred a benefit on the City, and that S&W failed to prove a promise to pay existed within

the MOU or that reliance on the MO U for payment was reasonable.

S&W appealed the issue of whether the MOU was a contract and the issue of promissory estoppel. Gary and Garfiel d appealed the issue of whether the MOU was a contract and their claim for quantum meruit. The court of appeals affirmed in part and reversed in part. Stevens , 396 S.C. at 340, 338 S.E.2d at 456. The court affirmed the grant of summary ju dgment on S&W's claim for promissory

1 S&W moved for partial summary judgment arguing the July 30 agreement created a contract between it and the City. That case is the subject of our opinion

in Stevens & Wilkinson of South Caroli na, Inc. v. City of Columbia , Op. No. 27433 (S.C. Sup. Ct. filed August 20, 2014).

2 Turner Construction also filed suit against the City for breach of contract, quantum meruit, contract implied by law, a nd breach of the duty of good faith and fair dealing. Turner's case was consolid ated with the respon dents' cases and it simply joined the arguments of the respondent s at the hearing. It did not file an appeal.estoppel. Id. It held the circuit court erred in granting summary judgment on the grounds the MOU is not a contract, findi ng there was conflicting evidence as to whether the parties intended to create a binding contract, and therefore reversed

and remanded on that issue. Id. at 344, 721 S.E.2d at 458. The court of appeals also reversed the grant of summary judgment on Gary and Garfield's quantum meruit claims, stating it could not rule as a matter of law the City retained no

benefit. Id. at 347, 721 S.E.2d at 460. The Cour t granted certiorari to review the court of appeals' opinion.

ISSUES PRESENTED

I. Did the court of appeals err in finding a genuine issue of material fact existed as to whether the MOU is a binding contract?

II. Did the court of appeals err in reve rsing the circuit court's grant of summary judgment in favor of the City on Gary and Garfield's claim for quantum meruit?

STANDARD OF REVIEW

"The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder." Dawkins v. Fields , 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003 )

. On review from a grant of summary judgment, the Court applies the same standa rd applied by the circuit cour t pursuant to Rule 56(c),

SCRCP. Knight v. Austin , 396 S.C. 518, 521–22, 722 S. E.2d 802, 804 (2012). Accordingly, summary judgment is appr opriate when the pleadings, depositions, affidavits, and discovery prove there is no genuine issue of material fact and the movant must prevail as a matter of law. Id. In reviewing the evidence, all inferences must be viewed in the light most favorable to the non-moving party. Id.

LAW/ANALYSIS

I. MEMORANDUM OF UNDERSTANDING

A. Extrinsic Evidence

Initially, the City argues the court of appeals erred in looking outside the

four corners of the MOU to determine wh ether it constituted a binding contract. Because we find the MOU is unambiguousl y not an enforceab le contract, we

agree."Where an agreement is clear on its face and unambiguous, the court's only function is to interpret its lawful meani ng and the intent of the parties as found within the agreement." Miles v. Miles , 393 S.C. 111, 117, 711 S.E.2d 880, 883 (2011) (quotation omitted). Where the contract language is plain and capable of legal construction, that langua ge alone determines the instrument's force and effect. Jordan v. Sec. Grp., Inc. , 311 S.C. 227, 230, 428 S.E.2d 705, 707 (1993).

The respondents argue the MOU is a comp lete contract, lacking no material terms and the MOU itself claims it fully "identifies the understandings of the parties." Although the majority of case law addressing extrinsic evidence pertains

to contract construction and not the existence of a contract, the inquiry in both instances involves giving force and effect to the intent of the parties, and we discern no reason for different rules of analysis. 3 As this Court has stated:

When a writing, upon its face , imports to be a complete expression of the whole agreement, and contains thereon all that is necessary to constitute a contract, it is presumed that the parties have

3 The respondents rely heavily on Conner v. City of Forest Acres , 363 S.C. 460, 611 S.E.2d 905 (2005), for the proposition that "when the existence of a contract is disputed or its terms are ambiguous, eviden ce that a party complied with the terms of the alleged contract or acted in confor mity therewith is relevant and admissible on the issues of the contract's existence, the meaning of its terms, and whether the

contract was breached." Id. at 473, 611 S.E.2d at 912. The facts of Conner are inapposite. Conner was a so-called "employee ha ndbook claim" which dealt with the termination of an empl oyee and posed the question of whether evidence of the employer's grievance procedures was ad missible in determining whether the employee handbook provisions constit uted contractual terms. Id. at 473, 611 S.E.2d at 912. The empl oyee contended the handbook modified the terms of her existing at-will employment contract, and th erefore the Court he ld evidence that the employer followed the procedures within the handbook was probative of the

intent to treat the handbook as contractual. Id. at 473, 611 S.E.2d at 911. Therefore, Conner addressed contract modification, not whether a single document

constituted a contract.introduced into it every material item and term, and parol evidence is

not admissible to add another term to the agreement, although the writing contains nothing on the particular item to which the parol

evidence is directed.

Gladden v. Keistler , 141 S.C. 524, 542, 140 S.E. 161, 167 (1927). We accordingly hold that where the language of a purported contract clearly expresses the intent to be non-binding, the analysis is limite d to the four corners of the document. 4

B. Existence of Enfo rceable Contract

The City also argues the court of app eals erred in holding a genuine issue of

material fact exists as to whether the MOU is a contract. We agree.

Although the existence of a contract is ordinarily a question of fact for the jury, where the undisputed facts do not es tablish a contract, the question becomes

one of law. Capital City Garage & Tire Co . v. Elec. Storage Battery Co. , 113 S.C. 352, 362, 101 S.E. 838, 841 (1920) . A valid and enforceable contract requires a meeting of the minds between the parties with regard to all essential and material terms of the agreement. Patricia Grand Hotel, LLC v. MacGuire Enters

, 372 S.C. 634, 638, 643 S.E.2d 692, 694 (C t. App. 2007). Thus, for a contract to be binding,

material terms cannot be left for future agreement. Aperm of S.C. v. Roof , 290 S.C. 442, 447, 351 S.E.2d 171, 173 (Ct. App. 1986). "In a contract for services two essential terms are the scope of the wo rk to be performed and the amount of compensation." W.E. Gilbert & Assocs . v. S.C. Nat. Bank , 285 S.C. 421, 423, 330 S.E.2d 307, 309 (Ct. App. 1985).

In reversing the circuit court, the cour t of appeals focused on the intent of the parties, noting that there were mutu al promises within the MOU and some boilerplate contractual language that at leas t create a genuine issue of material fact as to whether the parties in tended the MOU to be a contr act. However, regardless

4 The dissent contends our holding in some way does violence to the parol

evidence rule as well as the statute of fr auds. We disagree. Of course the parol evidence rule involves actual contracts, not purported ones such as the written agreement here. We make only the unremarkable assertion that where a writtendocument, by its own terms, unambiguously indicates it is meant to be nonbinding, we will not allow th e introduction of extrinsic evidence in an attempt to contradict that clear expression.of intent, an agreement which leaves ope n material terms is unenforceable. Aperm

, 290 S.C. at 447, 351 S.E.2d at 173; 1 Co rbin on Contracts § 2.8 (Rev. ed. 1993) ("Even if an intention to be bound is manifested by both parties, too much indefiniteness may invalidate the agreem ent, because of the difficulty of administering the agreement."); 1 Corbin on Contracts § 4.1 ("A court cannot

enforce a contract unless it can determine wh at it is. It is not enough that the parties think that they have made a contract. They must have expressed their

intentions in a manner that is capable of being understood.").

Examining the plain language of th e document, we find there was no meeting of the minds as to all mate rial terms and the MOU is therefore unenforceable. It is only an agreement to agree in the future outlining the framework under which the parties would pr oceed to negotiate the development of the hotel. By its own terms, it "reflect s the intent to proceed in good faith to execute definitive written agreements with respect to the business terms and conditions herein contained." (emphasis added). The MOU expressly states the

intention to enter into future "definitiv e" agreements, such as the Development Management Agreement, the Design/Build Agreement, the Qua lified Management Agreement, and the HQ Hote l Room Block Commitment. Thus, the clear language of the MOU indicates the parties consciously agreed to finalize binding agreements at some point in the future.

The respondents counter that the MO U provides clear guidelines for the subsequent agreement and theref ore the MOU is enforceable under Aperm . In that case, Aperm of South Carolina, the owner of a roof coating composition and application method entered into an optio n agreement with R oof and granted him exclusive license to research, develop, manufacture and sell its invention. Aperm

, 290 S.C. at 444, 351 S.E.2d at 172. The ag reement allowed Roof to terminate the contract upon written notice by August 1, ot herwise the agreement would become

fixed. Id. Under the agreement, Roof was also required to present Aperm with a comprehensive manufacturing and marke ting program which conformed to the agreement's guidelines. Id.

The program was required to include minimum royalty payments of $ 4,800.00 per month during the peri od August 1, 1981 to July 31, 1982, and increased monthly royalty payments thereafter. The marketing and manufacturing progr am was subject to Aperm's approval, but disapproval had to be reasonably related to the guidelines set out. The contract stat ed specifically that if the program provided for the minimum royalties, then objections to the program byAperm would be subject to arbitra tion, but if the program failed to provide for minimum royalties, Ap erm could cancel the contract.

Id. at 444–45, 351 S.E.2d at 172. Roof exercised his rights under the agreement to proceed therewith, but almost immediately defaulted for failing to pay the required royalties to Aperm. Id. at 445, 351 S.E.2d at 172. Ap erm sued Roof for breach of

contract and the trial court awarded dama ges pursuant to the licensing agreement.

Id. at 446, 351 S.E.2d at 173. Roof appeal ed, arguing the licensing agreement was merely an agreement to en ter into a contract after August 1 and was therefore

unenforceable. Id. at 446–47, 352 S.E.2d at 173. The court of appeals disagreed, finding sufficient guidelines for drafting a subsequent manufacture and marketing agreement within the licensing agreement to enforce it. Id. at 447, 352 S.E.2d at

174. The court stated that the sine qua non of the manufacture and marketing program was the payment of minimum roya lties, noting Aperm agreed to arbitrate

the other terms. Id.

We find this case distinguishable from Aperm . In Aperm , the licensing agreement clearly set out the specific sum of minimum royalties and clarified that this payment was the salient factor for the program. Additionally, the Aperm agreement only contemplated one future document. Here, the MOU envisions the parties entering into multiple agreements and describe s the intended agreements with a fluidity that renders it impossible for a court to anticipate the terms. For example, pursuant to the MOU, "The Developer will coordinate design, development, construction an d delivery of the Hotel in accordance with the terms of the Development Management Agreement to be finalized between the City or [non-profit corporation] and the Developer." This leaves the sc ope of work to be performed by the Developer still unde fined as it is as yet unclear how it will design, develop, and construct the hotel . We cannot see how merely stating a forthcoming document will dictate the terms of the "design, development, construction and delivery" does not plainl y leave material terms undecided. The whole project is the design, development, constr uction, and delivery of the hotel. 5

5 The respondents claim the Preliminary Development Management Scope of

Services which was an attachment to the MOU, could have been the final Development Management Agreement. We disagree. That document also lacks significant material terms, including any duties of the City a nd caps on financial liability as contemplated in the MOU.Nor is the scope of S&W's duties clear ly defined. The only description of the work S&W was to perform under the MOU is to "develop and implement a design review process" and contains no specific reference to an actual design. There are no guidelines as to what this pr ocess should look like, only that it should "provide the City, neighborhood and professional staff input into the design of the hotel." The MOU lacks any provisions on actual design duties of S&W and instead plainly envisions a subsequent contract between S&W and Turner. It is pursuant to this contract with Tu rner that S&W would be paid.

Furthermore, although initially th e parties' compensation appears ascertainable with some certainty, calculating the amounts requires unknown numbers. For example, the Developer "is to be paid a development fee of 4.75% of the project budget," which was undetermin ed. S&W was to be paid by Turner

"a fee of 7.25% . . . based on hard cons truction costs together with [Turner's] general expenses and fees." Aside from th e fact Turner, and not the City, was to pay S&W, that amount was based on a sum—costs and fees determined by Turner—that was yet to be de termined. Additionally, the MOU specifically states

in reference to Turner and S&W that "[i]f the Underwrite r does not close the financing, the City will no t be responsible for reimbur sing any costs incurred [unless the City breached its duties in the Development Agreement]." The MOU further clarifies that "[t]he Project Team will be responsible for the costs incurred prior to closing the financing. . . . If the Hotel financing fails to close as a result of the City not meeting its oblig ations outlined in the Deve lopment Agreement, . . . the City will reimburse the Project Team for actual, documented costs incurred to that point in time up to an amount to be agreed upon." Thus, any possible liability of the City for costs incurred prior to cl osing the financing wa s to be agreed upon in a future agreement—the Developmen t Agreement. This document would illustrate the obligations of the City and create liability for any breach. Furthermore, the document would contain an agreed upon limitation on liability. It appears the parties all acknowledged the City 's liability would be predicated on the Development Agreement, a forthcoming contract that was never executed.

Nevertheless, the respondents argue that focusing on the unfilled gaps of the agreement, such as the bond financing, ignor es the fact that one of the duties under the MOU was to obtain the bond financing. Essentially, they argue the MOU is comprised of interdependent parts that are all promises to perfo rm certain specified duties to develop a plan for a feasible, pub licly-funded hotel. While we agree that the determination of many of the terms within the MOU necessarily depend on theexecution of other portions of the MOU, we fail to see how that changes the analysis.

Frequently, agreements are arrived at piecemeal with different terms and items being discusse d and agreed upon separa tely. However, as long as the parties know there is an essential term not yet agreed on, there is no contract. The prelimin ary agreements on specific items are mere preliminary negotiation building up the terms of the final offer that may or may not be made.

1 Corbin on Contracts § 2.8. From the pl ain language of the MOU, it is clear the parties knew material term s still remained to be agr eed upon. They were also undoubtedly aware that payment and reimbursement was contingent upon obtaining bond financing, wh ich never took place. The parties were in the process of negotiating a plan to develop the hotel and the MOU simply memorialized how the parties planned to proceed in thos e negotiations toward the execution of binding contracts.

Because the MOU is simply comprise d of agreements to execute further agreements, there was no meeting of the minds on numerous material terms which had not yet been defined. Accordingly, we reverse the court of appeals and hold

the MOU is unenforceable as a matter of law.

II. QUANTUM MERUIT

The City also argues the court of appeal s erred in reversing the circuit court's grant of summary judgment finding no evid ence of a benefit conferred on the City to maintain Gary and Garfield's qua ntum meruit claim. We agree.

Quantum meruit is an equitable doctrin e which allows recovery for unjust enrichment under a quasi-contract theory. Columbia Wholesale Co. v. Scudder May N.V. , 312 S.C. 259, 261, 440 S. E.2d 129, 130 (1994). "The elements of a quantum meruit claim are: (1) a benef it conferred upon th e defendant by the plaintiff; (2) realization of that benefit by the defendant; and (3) retention by the

defendant of the benefit unde r conditions that make it unj ust for him to retain it without paying its value." Earthscapes Unlimited, Inc. v. Ulbrich , 390 S.C. 609, 616–17, 703 S.E.2d 221, 225 (2010).

Gary and Garfield point to plans and drawings prepared by the project team, as well as their expertise, to argue the C ity retained a benefit from their services. At oral argument, they focused on the site location and orientation of the hotel thatwas eventually used. Additio nally, they highlight the de position of the City's Rule 30(b)(6) representative, the assistant city manager, who admitted the City gave a rendering of the original project team's pr oposed hotel to Windsor/Aughtry. It is unclear what Windsor/Aughtry then did w ith the rendering, but the City manager noted the rendering "looks much like the bu ilding, the hotel that we presently have." Additionally, Raymond Garfield, the founding member of Garfield Traub, stated in his deposition that Gary and Garfie ld's work "gave [the City] the ability to distinguish the different financing types, different hotel types" and the City was "educated significantly by [Gar y and Garfield and their] team in all respects."

The circuit court found this was insuff icient to create a genuine issue of material fact, noting it was not enough to say the constructed building "looks like" the previous rendering, with no further detail as to speci fic "striking similarities." Furthermore, there was no evidence Windsor /Aughtry did anything with the plans or how that directly benefitted the City. The court also rejected the argument that the City benefitted from the project team's expertise, stating a ny benefit as to how

these deals should be structured was conf erred upon the other project members, not the City. However, the cour t of appeals reversed stati ng, "We do not believe it is possible to rule as a matter of law that the alleged benefit to the City had no value. Therefore, we reverse the circuit court' s decision to grant summary judgment on this element of the quantum meruit claim." Stevens , 396 S.C. at 347, 721 S.E.2d at

460.

We agree with the circuit court's finding there was no genuine issue of material fact as to whether the City retained a benefit. An anecdotal visual comparison alleging the build ing Windsor/Aughtry construc ted looks similar to the schematics for Gary and Garfield's proposed hotel and a vague assertion that Gary and Garfield imparted some knowledge to the City does not suffice to withstand

the mere scintilla standard. There is no other evidence offered that Windsor/Aughtry used the plans in any way or, even if it did, how that benefitted the City. Likewise, we are unpersuaded that the City retained a benefit by learning from Gary and Garfield's expertise. To some extent any dealing with other professionals is educational, and this is certainly true in the context of business negotiations. We again, however, fail to find any intrinsic value to the City.

Moreover, even if we were to find th e City received some benefit, we find no evidence any enrichment was unjust. There is no evidence Gary and Garfieldhad any reason to expect the City would otherwise compensate them for any work they performed in the event the project was not completed. As the MOU makes plain, the parties were aware they were proceeding at risk until the bond financing

closed.

CONCLUSION

Accordingly, we reverse the opinion of the court of appeals and reinstate summary judgment in favor of the City on the contract claims and on Gary and Garfield's quantum meruit claim.

TOAL, C.J., BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion.JUSTICE PLEICONES: I respectfully dissent and would affirm the decision of the Court of Appeals as I ag ree that the circuit court erred in granting the City summary judgment on S&W's contract cl aim and on Gary and Garfield's quantum meruit claim. As explained below, I st rongly disagree with that portion of the majority's opinion that w ould extend the applicability and scope of the parol

evidence rule.

The parol evidence rule is a substantive rule of law th at prohibits the introduction of evidence to contradict, add to, alter, explain, or vary the terms of an unambiguous valid written contract

. E.g. Garnett v. WRP Enterps., Inc , 380 S.C. 206, 669 S.E.2d 591 (2008). The scope of this rule is limited to evidence of understandings and negotiations th at preceded the making of the complete written
agreement , not post-formation conduct or agreements. 6 Peter Linzer, Corbin on

Contracts § 25.2 (Joseph M. Perillo ed. 2010).

The majority would now expand the reach of the parol evidence rule in two ways. As explained above, the predicate for the application of the parol evidence rule is a valid and complete written cont ract: the majority now proposes to apply the rule to

an incomplete writing . The majority would also expand the scope of the rule and hold not only that it bars pre-writing understandings of the parties, but all extrinsic evidence, whether ante- or post-writing. Explaining the effect of this newly expanded rule, the majority holds that when a writing "unambiguously fails to create an enforceable agreem ent," the determination whether that document is a valid contract is to be made by looki ng only within the four corners of the [unambiguously unenforceable] document. In other words, if parties place some part of their contract in writing, but that writing is insufficient to stand alone as a contract, then as a matter of law the parties have no contract.

This new rule unintentionally affects the statute of frauds, 6 since, for example, no longer could evidence of part performance satisfy the statute where the written

memoranda did not. E.g. Mims v. Chandler , 21 S.C. 480(1884) (written receipt insufficient to satisfy statute but part performance allowed court to order specific performance). Moreover this ne w rule fundamentally alters the law of contracts in

this State. See e.g. Gladden v. Keistler , 141 S.C. 524, 140 S.E. 161 (1927) (while holding a receipt was a contract, opini on acknowledges parol evidence rule does not apply to incomplete written agreements). Further, the majority purports to

6 S.C. Code Ann. § 32-3-10 (2007). See also Corbin

, supra at pp. 20-22, "The Statute of Frauds Compared with the Parol Evidence Rule."distinguish Conner v. City of Forest Acres , 363 S.C. 460, 611 S.E.2d 905 (2005),

which reiterates and a pplies the here-to-fore well settled rule that evidence of

conduct is admissible to decide an issue of contract formation. In the majority's view, Conner asked whether an employee handboo k altered the employee's "at-will employment contract." As I understand Conner , there was no pre-handbook "at

will employment contract." Instead, the employee's at-will status resulted from South Carolina's continued recognition of the doctrine of at-will employment, that is, "employment at-will is presumed absent the creation of a specific contract of employment." E.g., Barron v. Labor Finders of S.C. , 393 S.C. 609, 614, 713 S.E.2d 634, 636 (2011). In my opinion, the majority errs when it holds that

evidence found outside the f our corners of an incomplete writing is no longer admissible to prove the ex istence of a contract.

I respectfully dissent and would affirm the decision of the Court of Appeals.