THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Stevens & Wilkinson of South Carolina, Inc., Respondent,

v.

City of Columbia, Appellant.

Appeal From Richland County
 L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2011-UP-519
Heard September 13, 2011 – Filed November 29, 2011   

AFFIRMED AS MODIFIED

Michael W. Tighe, D. Reece Williams, III, Kathleen M. McDaniel, and Richard C. Detwiler, all of Columbia, for Appellant.

Richard A. Harpootlian and Graham L. Newman, both of Columbia, for Respondent.

PER CURIAM: Stevens & Wilkinson of South Carolina, Inc. alleges it had a contract with the City of Columbia to pay Stevens & Wilkinson for architectural services.  The circuit court granted partial summary judgment for Stevens & Wilkinson, finding it had a contract with the City.  We affirm as modified.

I.  Facts

In April 2003, the City entered into a Memorandum of Understanding (MOU) with a team of firms, including Stevens & Wilkinson, regarding the development of a hotel in downtown Columbia.  The MOU called on the team members and the City to perform various tasks that would enable the parties to calculate a guaranteed maximum price for construction of the hotel. 

In July 2003, Stevens & Wilkinson completed preliminary plans sufficient to determine the guaranteed maximum price.  Stevens & Wilkinson offered to continue working on hotel plans in order to facilitate an earlier construction start date.  Because this proposed work went beyond the scope of services described in the MOU, Stevens & Wilkinson asked for assurance that it would receive payment for the additional work.  Stevens & Wilkinson submitted a cost estimate of $650,000.00 for a ninety-day period ending October 13, 2003, and $75,000.00 per week thereafter.

On July 30, 2003, City Council voted on Stevens & Wilkinson's proposal.  The minutes of Council's work session state Council voted to approve "$650,000.00 for interim architectural design services for a period of ninety days prior to Bond Closing."  The minutes say nothing about the proposed additional $75,000.00 per week for work performed after October 13.  Stevens & Wilkinson continued to work on the plans for the next several months.  

On December 18, 2003, Stevens & Wilkinson sent the City an invoice for "professional services for the period July 10, 2003 through December 15, 2003."  The invoice listed $660,762.20 in fees and $36,322.59 in "expenses to date," for a total of $697,084.79.  The City issued a check for the invoiced amount on December 22, 2003.  The development team and the City continued working on the hotel project and met for regular, weekly meetings through at least February 25, 2004.  Ultimately, in May 2004, the City chose another team's proposal to build the hotel. 

II.  Procedural History

Stevens & Wilkinson sued the City for breach of contract, quantum meruit, breach of the duty of good faith and fair dealing, and estoppel.  Stevens & Wilkinson later filed a motion for partial summary judgment asking the circuit court to find Council's July 2003 vote created a contract.  The circuit court granted partial summary judgment to Stevens & Wilkinson, finding Council's vote was an acceptance of Stevens & Wilkinson's offer.  Limiting itself to the question of whether a contract existed, the court left open the question of whether the parties later modified the contract. 

The City filed a motion under Rule 59(e), SCRCP, asserting its approval of the $650,000.00 was a counteroffer that did not include the $75,000.00 per week term.  The City argued that Stevens & Wilkinson accepted its counteroffer by doing the work and that Stevens & Wilkinson's acceptance of payment in December "was the end of that contract."  The circuit court denied the City's motion, finding the issue of whether the City's payment satisfied the contract was outside the scope of its previous order, which addressed only the issue of the existence of a contract. 

III.  Existence of a Contract

Stevens & Wilkinson contends it made an offer to perform $650,000.00 in architectural work, plus $75,000.00 per week after October 13, and the City accepted the offer in Council's vote of July 30, 2003.  We disagree.  Because the terms of the vote differed from the terms of the offer, the vote could not have been an acceptance.  See Weisz Graphics Div. of Fred B. Johnson Co., v. Peck Indus., Inc., 304 S.C. 101, 106, 403 S.E.2d 146, 149 (Ct. App. 1991) ("At common law, no contract is formed if the acceptance varies the terms of the offer.  Instead, an acceptance which adds different or additional terms is treated as a counteroffer, which may be accepted or rejected by the other party." (internal citation omitted)); see also Berkeley Elec. Coop., Inc. v. Town of Mount Pleasant, 308 S.C. 205, 208, 417 S.E.2d 579, 581 (1992) ("Municipal records properly authenticated or verified are the only competent evidence of the proceedings of the transactions of the governing body.  Parol evidence cannot be admitted to explain, enlarge, or contradict minutes of the proceeding of a town council unless the minutes are incomplete or ambiguous." (internal citations omitted)).  Therefore, we find the circuit court erred in finding the July 2003 vote constituted an acceptance.

Nevertheless, the parties agreed at oral argument that a contract was formed for at least $650,000.00.  They disagreed as to how the contract was formed and as to its terms.  As a result of our finding that the circuit court erred in adopting Stevens & Wilkinson's theory that the contract was formed by the City's July 2003 vote, we are left with the City's theory that the vote was a counteroffer that Stevens & Wilkinson accepted by performance.  We find the contract was formed by a counteroffer and subsequently accepted by performance.  We therefore affirm the circuit court's ruling that there was a contract between the City and Stevens & Wilkinson.  We remand for a jury to determine the terms of the contract based on all of the surrounding circumstances, including whether the terms of the contract were later modified.  The jury must then determine whether the City breached the contract, and, if so, damages.   

The City argues its payment of $697,084.79 satisfied its contractual obligations to Stevens & Wilkinson.  The circuit court did not rule on this issue, and thus it is not preserved for review.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating issue preservation requires that an issue be raised to and ruled upon by the trial court).  The judgment of the circuit court is

AFFIRMED AS MODIFIED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.