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 Manni ng, 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 Gr aham 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 c ontract existed between it and the City of Columbia. On certiorari, the City con cedes a contract ex ists, but argues the
contract terms have been satisfied. We find the City's arguments are unpreserved
and affirm as modified.

FACTUAL/PROCEDUR AL BACKGROUND

In April 2003, the City entered in to a Memorandum of Understanding (MOU) with Stevens & Wilkinson of S outh Carolina, Inc. (S&W) and several other parties, to devel op a publicly-funded hotel ad jacent to the Columbia Metropolitan Convention Center. As arch itect, 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 ob tain 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 Ju ly 10, 2003, and would thereupon cease further work until the bond financing for th e 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 compen sated for the work it performed during this time frame. It provided an estim ate requiring $650,000 through October 13 and $75,000 per week after that. On Ju ly 30, the City a pproved "$650,000 for interim architectural design services for a pe riod 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, 200 3, S&W informed the construction company that the City had voted that day "to advance [ $705,000.000] to the de sign team for design services and expenses at cost coveri ng 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 co mpany agreed to reimburse the City for the funds paid to S&W after the bond cl osing. 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 Cityfor 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 contr act, 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 adva nce on fees under the MOU a nd 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 grante d partial summary judgment on the sole
issue of the existence of a contract unde r the July 2003 agreement. Specifically,
the court found S&W made an offer by delivering its estim ate to the City, and the City accepted the offer, "albeit on se emingly modified terms," by voting to authorize the $650,000.

The City filed a Rule 59(e) motion, ab andoning 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 "s eemingly modified terms" because any
modification of the terms resulted in a counteroffer, whic h S&W accepted by performance. It further argued that be cause 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 becau se the issue of breach and damages was not before the court, only the issue of the existence of a contract.

The City appealed and th e court of appeals affirmed the circuit court as modified, adopting the City's position th at the agreement to pay $650,000 was a
counteroffer which S&W ac cepted 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). Howe ver, 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 Caroli na, 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 dec lining to find the City's counteroffer
constituted the final terms of the contr act and accordingly find the contract obligations satisfied?

LAW/ANALYSIS

Although this appeal arises from th e grant of S&W's motion for partial summary judgment finding a contract existe d between the parties, we note that the City now concedes this very issue. Th e City instead argues the court of appeals erred in remanding the case fo r determination of the term s of the contract because S&W accepted the City's counteroffer fo r payment of $650,000 and there was no evidence that agreement was m odified. Therefore, the C ity asks the Court to hold
the contract has been satisfied. We declin e 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 issu e 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 pa rty cannot use a Rule 59(e) motion to advance an issue the party c ould have raised to the circ uit 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 fi rst 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 unpreserve d the City's request that this Court
deem the terms of the contract satisfied. The issue before the circuit court waslimited to the existence of a contract. Th e 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 judgmen t." (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 "previ ous 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 cas e." We agree with the circuit court and employ the same restraint. It is imprope r for the City to co ncede the sole issue before the circuit court and attempt to inj ect 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 a ppeals' 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 arch itectural design services served as an acceptance. We remand the case for furthe r proceedings for determination of the
terms of the contract and whether the contr act has been satisfied or damages should
be awarded.

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