Ackerman v. McMillan, 2574
| Decision Date | 10 September 1996 |
| Docket Number | No. 2574,2574 |
| Citation | 477 S.E.2d 267,324 S.C. 440 |
| Court | South Carolina Court of Appeals |
| Parties | Helene A. ACKERMAN, Appellant, v. John N. McMILLAN and Faith J. McMillan, Respondents. . Heard |
James E. Barfield, Lexington; and James B. Richardson, Jr., of Svalina, Richardson & Smith, Columbia, for appellant.
Edward M. Woodward, Jr., of Woodward, Leventis, Unger, Daves, Herndon & Cothran, Columbia, for respondents.
This is an action for breach of contract. Appellant Helene Ackerman sued respondents John and Faith McMillan for damages resulting from their disavowal of a contract to sell real estate. The trial court found Ackerman had breached the contract of sale. On appeal, this court reversed, finding the McMillans breached the contract, and remanded for a determination of Ackerman's damages. Ackerman v. McMillan, 314 S.C. 268, 442 S.E.2d 618 (Ct.App.1994). Ackerman appeals the special circuit judge's decision on remand, arguing the judge retried the case de novo and further erred in his damages award. We reverse and remand.
The facts of this case are set forth in our prior opinion. Briefly, Ackerman sued the McMillans for breach of contract for the sale of the McMillans' home. A special referee heard the case on November 19, 1991 and April 28, 1992. The special referee found Ackerman breached the contract of sale by failing to apply for financing within the time stipulated in the contract. This court reversed the referee, finding the McMillans breached the contract, and remanded for a determination of Ackerman's damages, stating: "Accordingly, we reverse and remand for a determination of the amount of damages, if any, suffered by Ackerman due to the McMillans' breach."
On remand, the trial court determined Ackerman was not entitled to damages for breach of contract because Ackerman had originally requested specific performance by the McMillans, but had amended her complaint and waived her right to specific performance in favor of an action for damages. Because the McMillans had offered at some point to convey the property to Ackerman, the court concluded Ackerman's actions in waiving specific performance precluded her from recovering money damages. Based on this reasoning, the court determined Ackerman was only entitled to a refund of all sums paid under the contract.
Ackerman argues the trial court retried the case on remand de novo; made findings of fact regarding liability; and reached conclusions of law contrary to the Court of Appeals' decision. Ackerman also argues there was no issue before the trial court as to whether she had the right to make an election of remedies prior to trial or the effect of that election, since that issue was not an issue in the prior appeal. Furthermore, Ackerman argues the court improperly received evidence on the issue of damages rather than relying on the transcript of the prior court proceeding. Ackerman requests this court remand for the trial court to determine the amount of attorney fees she should be awarded.
After the remittitur is sent down from an appellate court, the trial court acquires jurisdiction to enforce the judgment and take any action consistent with the appellate court ruling. Muller v. Myrtle Beach Golf & Yacht Club, 313 S.C 412, 438 S.E.2d 248 (1993); Christy v. Christy, 317 S.C. 145, 452 S.E.2d 1 (Ct.App.1994). Matters decided by the appellate court cannot be reheard, reconsidered, or relitigated in the trial court, even under the guise of a different form. 5 C.J.S. Appeal and Error § 975(a) (1993). The decision of the appellate court is final as to all questions decided. Id. It is the duty of the trial court to follow the decision of the appellate court. Id. It was therefore error for the trial court to reconsider the issue of liability in this case in view of the fact this court remanded the case for a determination of damages only. As we read the respondents' brief, they implicitly concede this issue.
The McMillans also concede that the proper measure of damages in this case is the difference between the contract price and the fair market value of the property at time of breach. See McMahan v. McMahon, 122 S.C. 336, 115 S.E. 293 (1922); Benya v. Gamble, 282 S.C. 624, 321 S.E.2d 57 (Ct.App.1984). Nevertheless, they argue in their brief that there is evidence to support the trial judge's damages award because there is evidence the fair market value of the property did not exceed the contract price.
The contract price was $274,500. At the April 1992 hearing, Ackerman's appraiser testified the fair market value of the house was $295,000 at the time the contract was breached. 1 The McMillans testified the fair market value of the house at the time of the execution of the contract was $274,500. At the hearing on remand, the McMillans again testified the value...
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