Willis Ardis sued Charles Cox and Sumter Oil & Gas Company, Inc. (collectively referred to as “Cox”) for fraud and violation of the South Carolina Unfair Trade Practices Act, S.C. Code Ann. § 39-5-10 (1976), et seq., (SCUTPA) arising out of Ardis’s purchase of underground gasoline storage tanks from Cox. The trial court granted summary judgment for Cox on Ardis’s claims but allowed Ardis to amend his complaint to allege breach of contract. Ardis appeals and we affirm.
Ardis leased and operated a gasoline service station in Sumter. He leased the premises from a third individual not involved in this matter. The underground storage tanks were owned by Cox and Cox supplied Ardis with gasoline.
In March 1987, Cox agreed to sell the underground storage tanks to Ardis. As part of the transaction, Cox agreed to sell gasoline to Ardis thereafter for one cent over cost per gallon. Cox told Ardis that the tanks held 8,000 gallons each so that Ardis could take advantage of the price discount by purchasing higher quantities. Cox did not tell Ardis of the lack of DHEC registration nor possible related penalties. He also did *515 nоt tell Ardis about possible environmental and cost consequences involved with the purchase.
After the purchase, Ardis learned the tanks were in violation of DHEC registration regulations. He also fоund out that they would hold only 6,000 gallons of fuel and there were significant environmental problems associated with ownership and maintenance of the tanks rendering the tanks unfit for gasoline storage. Ardis subsеquently registered the tanks, had environmental tests performed and, ultimately had the tanks removed from the property.
I.
Ardis first argues the trial judge erred in granting summary judgment to Cox on the fraud cause of actiоn. We disagree.
A. Actual Fraud
Fraud is not presumed, but must be shown by clear, cogent, and convincing evidence. In order to prove fraud, the following elements must be shown: (1) a representation; (2) its falsity; (3) its materiality; (4) eithеr knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.
King v. Oxford,
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
Ardis contends each element of fraud can firmly be established. He argues each of thеse elements are established as to Cox’s misrepresentation of the capacity of the tanks. The trial judge ruled that (1) there was no evidence *516 Cox intentionally misrepresented the cаpacity, (2) because Ardis operated the tanks three years prior to the sale and could have easily checked the capacity and because the sale excluded аll warranties and included a general release, there was no evidence Cox fraudulently misrepresented the capacity, and (3) even assuming fraud, Ardis did not rely on the capacity of the tаnks in purchasing them.
In reviewing the complaint, we note that Ardis does not specifically allege either (1) intent that the representation be acted upon or (2) the hearer’s right to rely. The complaint does allege that Ardis “reasonably relied” which may be sufficient to comply with the “hearer’s right to rely” element. However, there is absolutely no allegation as to the “intent that the representation be acted upon” element. Thus, the complaint is fatally defective. Further, the trial judge found no evidence of an intentional misrepresentation of tank capacity. Ardis аrgues that Cox’s testimony (regarding his desire to sell the tanks in part because of the underground storage regulations) “fulfills this element of fraud.” We disagree. This is inadequate as independent evidence of the element of intent. Ardis is asking us to presume intent by the mere fact that Cox desired the sale to occur. The law clearly requires more.
B. Constructive Fraud
While it is possible to establish constructive fraud in the absence of the element of intent, we find the facts of this case do not support constructive fraud either. To establish constructive fraud, all elements of actual fraud except the element of intent must be established.
O’Quinn v. Beach Associates,
C. Fraudulent Concealment
Ardis asserts Cox was guilty of fraudulent concealment because Cox knew the tanks would not hold 8,000 gallons, the tanks could have an environmental imрact, and the tanks were not registered. He contends Cox had a duty to disclose based on their fiduciary relationship which he asserts arose from a franchise agreement and the relatiоnship between the parties.
Nondisclosure is fraudulent when there is a duty to speak.
Manning v. Dial,
The duty to disclose may be reduced to thrеe distinct classes: (1) where it arises from a preexisting definite fiduciary relation between the parties; (2) where one party expressly reposes a trust and confidence in the other with reference to the particular transaction in question, or else from the circumstances of the ease, the nature of their dealings, or their position towards each other, such a trust and сonfidence in the particular case is necessarily implied; (3) where the very contract or transaction itself, in its essential nature, is intrinsically fiduciary and necessarily calls for perfect good faith and full disclosure without regard to any particular intention of the parties.
Jacobson,
The trial judge found there was no allegation of a fiduciary or confidential relationship between the parties, no evidence such a relationship existed and this assertion was not properly *518 raised in the pleadings as required by Rule 9, SCRCP. He also found the federal statute relied on by Ardis to show a fiduciаry relationship based on a franchise limited the definition of franchise to its provisions which were inapplicable to the case at hand. Further, the trial judge noted that Ardis, in his deposition, testified hе never entered into any sort of franchise agreement with Phillips 66 and found there was no franchise or special relationship between the parties giving rise to a confidential or fiduciary relationship.
A review of the complaint reveals a failure to allege any kind of fiduciary or confidential relationship between the parties. Neither does it specifically raise the issue of fraudulent concealment or nondisclosure. Ardis does not appeal from the trial judge’s ruling that these assertions were not properly raised under Rule 9, SCRCP. Thus, the trial judge’s ruling must stand. The complаint is deemed fatally defective in this respect. Further, a review of the record reveals Ardis did, in fact, testify that he never entered into any sort of franchise agreement with Phillips 66 and was under no obligаtion to make any reports to Phillips. He stated his relationship with Sumter Oil and Gas was that he “would buy gas from them” and “he (Cox) owned the pumps.”
Accordingly, we find the trial judge properly granted summary judgment on the fraud cause of action.
II.
Ardis next argues the court erred in granting summary judgment on his cause of action alleging Cox violated the SCUTPA. The trial court ruled that the transaction did not affect the public and wаs beyond the scope of the Act. The trial court found the only evidence was that this was an isolated sale between private individuals and that no other similar transactions were made or contemplated by Cox. The court ruled that there was no evidence that the transaction would affect the public because it was capable of repetition.
The SCUTPA is unavailable tо redress private wrongs if the public interest is unaffected.
LaMotte v. The Punch Line of Columbia, Inc.,
We agree with the trial court that this case appears to involve, at best, an intentional breach of contract within a commercial setting. Accordingly, we affirm the grant of summary judgment on the Unfair Trade Practices claim.
Affirmed.