Bocook Outdoor Media, Inc. v. Summey Outdoor Advertising, Inc.

• Decision Date: 19 October 1987
• Docket Number: No. 1060,1060
• Parties: BOCOOK OUTDOOR MEDIA, INC., Respondent-Appellant, v. SUMMEY OUTDOOR ADVERTISING, INC., Appellant-Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 390

363 S.E.2d 390

294 S.C. 169

BOCOOK OUTDOOR MEDIA, INC., Respondent-Appellant, v. SUMMEY OUTDOOR ADVERTISING, INC., Appellant-Respondent.

No. 1060.

Court of Appeals of South Carolina.

Heard Oct. 19, 1987.

Decided Dec. 7, 1987.

Glenn W. Thomason, of Long, Thomason & Mullinax, and John M. O'Rourke, of Doyle & O'Rourke, Anderson, for appellant-respondent.

Kenric E. Port and Wm. Douglas Gray, Watkins, Vandiver, Kirven, Gable & Gray, Anderson, for respondent-appellant.

CURETON, Associate Judge:

This case involves claims of violation of the South Carolina Unfair Trade Practices Act (SCUTPA) and interference with contractual relations. Bocook Outdoor Media Inc. (Bocook) and Summey Outdoor Advertising Inc. (Summey) are competitors in the outdoor advertising business. The claims of the parties arise from their competitive practices in obtaining billboard leases in and around Anderson County. Both parties appeal various aspects of the jury verdict. We affirm.

I.

Bocook is in the business of renting outdoor advertising space on billboard signs. This is accomplished by leasing a location for a billboard from a landowner. The billboard is erected and the space is then rented to an advertiser. Bocook has been doing business in Anderson County for several years. Summey is also in the outdoor advertising trade. Originally, Summey operated in the western North Carolina area. In the early 1980's, Summey decided to come into the South Carolina market and began competing in the same geographical area as Bocook. The competitive situation between Bocook and Summey became intense.

Bocook filed suit against Summey alleging interference with contractual relations and violation of the South Carolina Unfair Trade Practices Act. Bocook alleged Summey was engaged in a campaign to force the removal of Bocook billboards and to monopolize the outdoor advertising business in Anderson County. Summey counterclaimed on the same legal theories alleging Bocook was obtaining sign permits from the South Carolina Highway Department without having leases for the locations and was attempting to persuade landowners not to enter into leases with Summey. The jury returned a verdict for Bocook on its claims and for Summey on its counterclaim of violation of the SCUTPA.

II.

The jury returned a verdict for Bocook against Summey in the amount of Ten Thousand Dollars for violation of the Unfair Trade Practices Act and Five Thousand Dollars for interference with contractual rights. The trial judge trebled the Ten Thousand Dollar award to Thirty Thousand Dollars under Section 39-5-140 based upon a finding of willfulness by the jury. Summey has appealed on several grounds.

A.

Summey alleged the outdoor advertising industry was exempt from the provisions of the SCUTPA. Section 39-5-40(a), Code of Laws of South Carolina, 1976. Summey based this claimed exemption upon the "Highway Advertising Control Act" contained in Section 57-25-110 et. seq., Code of Laws of South Carolina, 1976. Summey argues the outdoor advertising industry is regulated by the South Carolina Highway Department through the issuance of permits for placement of billboards on public highways. The trial court ruled against Summey. We concur with the trial court.

Section 39-5-40(a) provides, in part, the Unfair Trade Practices Act shall not apply to:

Actions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this State or the United States or actions or transactions permitted by any other South Carolina State law.

The South Carolina Supreme Court has held securities transactions are exempt from the Unfair Trade Practices Act because they are regulated by the Securities and Exchange Commission as well as the South Carolina Uniform Securities Act. The Court noted violation of the regulations subjected an offender to liability. State ex. rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980). This Court recently held the sale of mobile homes exempt from the Act because it is subject to regulatory control and imposition of penalties by the South Carolina Manufactured Housing Board for unfair or deceptive practices. Scott v. Mid-Carolina Homes Inc., 293 S.C. 191, 359 S.E.2d 291 (Ct.App.1987).

A review of the "Highway Advertising Control Act" reveals the Act is designed to regulate size and location of outdoor advertising signs. Specifically, the Act states some of its purposes are to protect safety on the highways and to preserve and enhance the natural scenic beauty. Section 57-25-130. The State Highway Department is charged with issuing permits for the erection of signs. Section 57-25-150. Neither the statutes nor the regulations promulgated pursuant to the statutes address or regulate unfair competition among outdoor advertisers. Therefore, we do not find an exemption for the outdoor advertising industry from the Unfair Trade Practices Act.

B.

Summey argued by exception the trial court erred in denying its motion that the Unfair Trade Practices Act was unconstitutionally vague. We fail to see where this issue was raised in the pleadings or was the subject of a trial motion. Accordingly, this court does not address that issue. Harris v. Campbell, 293 S.C. 85, 358 S.E.2d 719 (Ct.App.1987).

C.

Summey excepts to the trial court's ruling with respect to the admission of two portions of testimony. We find no error in the decision of the trial court in either admission.

Bocook offered the testimony of John Cantey Heath as an expert witness. Mr. Heath is president of Columbia Outdoor Advertising and is also president of the South Carolina Outdoor Advertising Association. Heath's testimony was offered to establish business customs in the outdoor advertising industry. Summey raised no objection to the qualifications of Heath but objected to his testimony on the ground it was not necessary to have expert testimony on this issue. The trial court took in camera testimony from Heath and then determined the subject matter was appropriate for expert testimony.

The admission or exclusion of evidence is a matter within the sound discretion of the trial judge. The exercise of the judge's discretion will not be disturbed on appeal absent a clear showing of an abuse of discretion, the commission of legal error in its exercise, and prejudice to the rights of the appellant. Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40 (Ct.App.1987). Whether the inquiry is one for which expert testimony is proper is a matter for the trial judge to determine and his ruling will not be disturbed unless it appears an abuse of discretion occurred. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App.1986).

Mr. Heath testified the customs of the outdoor advertising industry do not condone the practice of one outdoor advertiser contacting landowners who had previously leased a site to another advertiser in an effort to obtain the lease on the location. On cross examination, Summey established there were no written ethical standards for the industry and Mr. Heath had been through a similar competitive situation in his business. It was for the jury to weigh the credibility of the testimony. We note a former employee of Summey, Rodney Ralph Monroe, had testified earlier in the trial that most outdoor advertisers as a matter of ethics do not try to lease away property from a competitor in order to force down the other advertiser's sign. The appellate record discloses no objection by Summey to this testimony by Monroe. We find no abuse of discretion in the admission of the Heath testimony.

The second area of challenged testimony involves the testimony of James F. Bocook. Mr. Bocook is the president of Bocook Outdoor Media, Inc. Mr. Bocook testified his main concern was the practice of Summey trying to secure a lease from a landowner who already had a Bocook billboard on his property. If Summey obtained the lease, Bocook would have to remove its sign. Mr. Bocook testified several landowners contacted him about increased rents for their properties. He was attempting to show he had to pay more rent in order to keep his leases due to Summey's actions. Summey objected to this testimony on the ground of hearsay. The trial court overruled this objection. A part of his testimony is as follows:

Q. Did any of these landowners contact you?

A. Yes, sir.

Q. Did Mr. Jack Alexander contact you?

A. Yes, sir.

Q. Did he request for his sign to be removed?

A. No, sir.

Q. Did he request more money?

A. Yes, sir.

To analyze whether the evidentiary ruling was correct, we must first consider whether the testimony is hearsay. If it is hearsay, then we must determine if it is admissible under an exception to the hearsay rule.

Hearsay is defined as an out-of-court statement offered in evidence at trial to prove the truth of the matter asserted. Yaeger v. Murphy, 291 S.C. 485, 354 S.E.2d 393 (Ct.App.1987). If an extrajudicial statement is not offered to prove the truth of the statement it is not hearsay. In the context of this case, the testimony was offered not to prove the truth of the actual statements between Bocook and the landowners but to prove the conversations took place. Therefore, the testimony was not hearsay. We also note a prior employee of Summey, Grayson Pitts, had already testified without objection about his contacts with landowners who had Bocook billboards. Specifically, in light of that testimony, we find no error.

D.

Summey excepts to the denial of its motions for directed verdict, judgment n.o.v., and new trial on the claim of interference with contractual relations. The jury awarded Five Thousand Dollars to Bocook. Summey filed a summary judgment motion on this issue which was denied. Although Summey excepts to the denial of its summary judgment motion the denial is not immediately appealable nor is it appealable after final judgment. Harris v. Campbell, 293 S.C. 85, 358 S.E.2d 719 (Ct.App.1987); Holloman v....