           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.
