THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Stevens & Wilkinson of South Carolina, Inc., 

Respondent, 

v. 

City of Columbia, South Carolina, Petitioner. 

Appellate Case No. 2012-208527 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Richland County 

The Honorable L. Casey Manning, Circuit Court Judge 

Opinion No. 27433 

Heard January 16, 2014 – Filed August 20, 2014 

AFFIRMED AS MODIFIED 

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 Graham L. Newman, both of 

Richard A. Harpootlian, PA, of Columbia, for 

Respondent. 
JUSTICE HEARN: This case arises from a grant of partial summary judgment in 

favor of an architectural firm finding a contract existed between it and the City of 

Columbia. On certiorari, the City concedes a contract exists, but argues the 

contract terms have been satisfied. We find the City's arguments are unpreserved 

and affirm as modified. 

FACTUAL/PROCEDURAL BACKGROUND 

In April 2003, the City entered into a Memorandum of Understanding 

(MOU) with Stevens & Wilkinson of South Carolina, Inc. (S&W) and several 

other parties, to develop a publicly-funded hotel adjacent to the Columbia 

Metropolitan Convention Center. As architect, S&W was to complete sufficient 

preliminary design work to determine a guaranteed maximum price for the project, 

which would be used by the City to obtain municipal bond funding to cover the 

cost of the hotel. Pursuant to the MOU, the construction company was to pay 

S&W directly. On June 26, 2003, the City received a letter stating S&W would 

complete its preliminary design on July 10, 2003, and would thereupon cease 

further work until the bond financing for the hotel was finalized. Realizing this 

could delay the start of construction, S&W offered to continue working the 

remaining ninety days until the anticipated bond closing date of October 13, 2003, 

but required assurance it would be compensated for the work it performed during 

this time frame. It provided an estimate requiring $650,000 through October 13 

and $75,000 per week after that. On July 30, the City approved "$650,000 for 

interim architectural design services for a period of 90 days prior to bond closing." 

The bond closing did not occur as scheduled, but S&W nevertheless 

continued to work. On December 16, 2003, S&W submitted an invoice to the City 

for $697,084.79 for work that took place from July 10 to December 15, 2003. By 

letter dated December 17, 2003, S&W informed the construction company that the 

City had voted that day "to advance [$705,000.000] to the design team for design 

services and expenses at cost covering the time period between July 10, 2003 to 

December 15, 2003." Because under the MOU the construction company was to 

pay S&W, not the City, the construction company agreed to reimburse the City for 

the funds paid to S&W after the bond closing. The City remitted $697,084.79 

directly to S&W later that month. S&W continued to work on the project, but in 

March 2004, the City abandoned its plans under the MOU and ended its 

relationship with S&W. S&W received no further compensation and sued the City 
 

for breach of contract under the MOU and the July 2003 agreement.1 S&W then 

moved for partial summary judgment arguing it had a contract with the City as a 

matter of law based on the performance of and payment for architectural design 

services agreed to in July 2003. S&W's motion clarified that it only sought 

resolution of whether there was a contract, and did not seek summary judgment on 

the issue of breach or damages. 

The City argued there was no separate agreement and the payment of interim 

fees was merely an advance on fees under the MOU and furthermore, the MOU 

provided that S&W was to be paid by the construction company, not the City. The 

circuit court agreed with S&W and granted partial summary judgment on the sole 

issue of the existence of a contract under the July 2003 agreement. Specifically, 

the court found S&W made an offer by delivering its estimate to the City, and the 

City accepted the offer, "albeit on seemingly modified terms," by voting to 

authorize the $650,000. 

The City filed a Rule 59(e) motion, abandoning the argument that there was 

no contract. For the first time, the City argued the authorization of the $650,000 

could not constitute an acceptance on "seemingly modified terms" because any 

modification of the terms resulted in a counteroffer, which S&W accepted by 

performance. It further argued that because S&W accepted by performance, the 

terms were limited to the counteroffer of $650,000. Because S&W had already 

been paid that sum, the City argued the court should find the City had fully 

performed and the contract was satisfied. 

The circuit court denied the motion, finding the City never argued the 

authorization of payment was a counteroffer and consistent with settled principles, 

it would not consider new theories in a Rule 59(e) motion. It further declined to 

address satisfaction of the contract because the issue of breach and damages was 

not before the court, only the issue of the existence of a contract. 

The City appealed and the court of appeals affirmed the circuit court as 

modified, adopting the City's position that the agreement to pay $650,000 was a 

counteroffer which S&W accepted by performance. Stevens & Wilkinson of South 

Carolina, Inc. v. City of Columbia, Op. No. 2011-UP-519 (S.C. Ct. App. filed 

November 29, 2011). However, the court declined to address the issue of 

1

 The breach of contract claim under the MOU is the subject of this Court's opinion 

in Stevens & Wilkinson of South Carolina, Inc. v. City of Columbia, Op. No. x 

(S.C. Sup. Ct. filed x). 
satisfaction on preservation grounds and remanded to the circuit court for 

determination of the terms of the contract, whether it had been breached, and if so, 

the amount of damages. Id. We granted certiorari. 

ISSUE PRESENTED 

Did the court of appeals err in declining to find the City's counteroffer 

constituted the final terms of the contract and accordingly find the contract 

obligations satisfied? 

LAW/ANALYSIS 

Although this appeal arises from the grant of S&W's motion for partial 

summary judgment finding a contract existed between the parties, we note that the 

City now concedes this very issue. The City instead argues the court of appeals 

erred in remanding the case for determination of the terms of the contract because 

S&W accepted the City's counteroffer for payment of $650,000 and there was no 

evidence that agreement was modified. Therefore, the City asks the Court to hold 

the contract has been satisfied. We decline to address this issue because it is not 

properly before us. 

Issue preservation rules are designed to give the trial court a fair opportunity 

to rule on the issues, and thus provide the Court with a platform for meaningful 

appellate review. Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 

642 (2012). "It is axiomatic that an issue cannot be raised for the first time on 

appeal, but must have been raised to and ruled upon by the trial judge to be 

preserved for appellate review." Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 

S.E.2d 731, 733 (1998). Furthermore, a party cannot use a Rule 59(e) motion to 

advance an issue the party could have raised to the circuit court prior to judgment, 

but did not. Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. 

App. 1990). 

As an initial matter, we hold it was error for the court of appeals to consider 

the City's argument that the agreement to pay $650,000 constituted a counteroffer. 

The circuit court, relying on well-settled precedent, declined to reach this issue 

because it was improperly raised for the first time in the Rule 59(e) motion. The 

court of appeals should have refused to entertain that theory as well for the same 

reasons. 

Similarly, we find equally unpreserved the City's request that this Court 

deem the terms of the contract satisfied. The issue before the circuit court was 
limited to the existence of a contract. The initial order explicitly states: "Whereas 

the existence of a contract between [S&W] and [the City] as a result of the July 30, 

2003 agreement is the only issue now before the court, the Court hereby grants 

[S&W's] motion for partial summary judgment." (emphasis added). Furthermore, 

in the order denying the Rule 59(e) motion, the court declined to find the contract 

was satisfied and reiterated that the "previous order did not rule on the question of 

the breach of contract or any damages related thereto. Thus it would be 

inappropriate [to] extend a ruling in this case." We agree with the circuit court and 

employ the same restraint. It is improper for the City to concede the sole issue 

before the circuit court and attempt to inject new issues and theories on appeal. 

S&W never had the opportunity to present an argument on the exact terms of the 

contract, how the contract was breached, and what damages flowed from that 

breach. Those were not the questions before the circuit court and we will not allow 

them to now be placed before us. 

CONCLUSION 

We therefore affirm the court of appeals' opinion as modified and hold 

S&W's estimate to continue services constituted an offer and the City's 

authorization to pay $650,000 in interim architectural design services served as an 

acceptance. We remand the case for further proceedings for determination of the 

terms of the contract and whether the contract has been satisfied or damages should 

be awarded. 

TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.