THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Deborah Coon and Michael L. Coon, Respondents,

v.

Renaissance on Charleston Harbor, LLC, Appellant.

Appeal From Charleston County
Mikell R. Scarborough, Master-In-Equity

Unpublished Opinion No. 2006-UP-367
Heard October 11, 2006 – Filed October 26, 2006

REVERSED

Henry W. Brown and John W. Davidson, both of Columbia, for Appellant. 

Joseph Kevin Qualey and Michael S. Seekings, both of Charleston, for Respondents.

PER CURIAM:  Deborah and Michael L. Coon filed a motion to vacate an arbitration award.  The circuit court vacated the award and ordered the parties to submit to a new arbitration proceeding.  Renaissance on Charleston Harbor, LLC, appeals.  We reverse.

FACTS

The Coons entered into a contract to purchase two condominium units from Renaissance.[1]  The contract contained a “time is of the essence” clause that provided:  “It is expressly understood and agreed that TIME IS OF THE ESSENCE as to all obligations hereunder . . . .”  The contract also included a cure provision as follows:

If the Company defaults in the performance of any of the Company’s obligations as set forth in this Agreement and such default is not cured within 90 days after written notice of default is given by the Purchaser to the Company, the Purchaser will be entitled to rescind this Agreement and receive the immediate return of the Purchaser’s earnest money deposit, as well as pursue any and all other remedies available at law or in equity; provided however, that in the event of the nonmaterial breach of any term or condition of this Agreement, the Purchaser’s remedies will not include termination of this Agreement.  

The contract provided for binding arbitration of disputes arising under the agreement.  

The Coons signed the contract on May 22, 2000.  The contract provided for completion of the units within 24 months of the execution of the contract by the purchaser.  The Coons paid $109,000 in earnest money. 

Deborah Coon did a walk-through of the units in April of 2002 with an architect and the Renaissance realtor, Keith McCann.  During the walk-through, Coon complained about a “wavy wall” and a “spongy floor” in one of the units.  Nevertheless, certificates of occupancy for both units were issued on April 24, 2002. 

Although it is unclear from the record the date the closing was originally scheduled to be held, it appears it was ultimately scheduled for June 25, 2002.  At the appointed time, the Coons again complained of the wall and floor in one of the units.  They refused to close, allegedly based on the advice of their banker and mortgage broker.  Coon admitted McCann kept in touch with her throughout the day about repairs and opined the problems could be fixed within twenty-four hours.  The following day, McCann informed Coon that if the Coons refused to close within twenty-four hours, Renaissance would consider it a breach of the contract.  The Coons refused to close, and Renaissance refused to return the earnest money.

The Coons filed an action for breach of contract, conversion, and unfair trade practices.  Pursuant to the terms of the contract, the action was heard by an arbitrator.  The arbitrator found the units were substantially complete, based in part on the issuance of the certificates of occupancy and “the fact that the objections of the [Coons] were addressed within two days.”  The arbitrator concluded the problems in the unit “were nothing more than punch list items which [Renaissance] was entitled to take care of without the [Coons] walking out on the contract.”  The arbitrator concluded that although the Coons would normally be entitled to rescind the contract under the “time is of the essence” clause