Brooks v. Velocity Powersports, LLC

• Decision Date: 10 November 2021
• Docket Number: Appellate Case 2019-000025,2021-UP-400
• Parties: Rita Brooks, Respondent, v. Velocity Powersports, LLC, American Honda Finance Corporation and American Honda Motor Co., Inc., Defendants, Of which Velocity Powersports, LLC is the Appellant.
• Court: South Carolina Court of Appeals

Rita Brooks, Respondent,
v.
Velocity Powersports, LLC, American Honda Finance Corporation and American Honda Motor Co., Inc., Defendants,

Of which Velocity Powersports, LLC is the Appellant.

No. 2021-UP-400

Appellate Case No. 2019-000025

Court of Appeals of South Carolina

November 10, 2021

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.

Submitted September 1, 2021

Appeal From Berkeley County Dale Van Slambrook, Master-in-Equity

Mary Leigh Arnold, of Mary Leigh Arnold, PA, of Mount Pleasant, for Appellant.

Edward J. Dennis, IV, of Dennis Law Firm, LLC, of Moncks Corner, and Donald Bruce Clark, of Donald B. Clark, of Charleston, both for Respondent.

PER CURIAM.

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Velocity Powersports, LLC appeals the Master-in-Equity's ruling it committed unfair trade practices connected with its servicing of Rita Brooks' Honda jet ski and awarding Brooks treble damages, attorney's fees, and costs. We affirm in part, reverse in part, and remand to the Master for determination of reasonable attorney's fees.

I. Facts

Brooks bought the Ski from Velocity in 2010 for $12, 829.01. In 2012, Brooks began having engine and other trouble with the Ski. On April 9, 2012, she took the Ski to Velocity for repairs and a "tune-up," which included an oil change and replacing spark plugs. Brooks was told some services would be covered under her warranty but the tune-up would not.

Brooks signed a repair order reflecting the tune-up service would cost $200.19 and she would be charged a storage fee of $25 per day she did not retrieve the Ski within five days of "completion."

Between April 24, 2012, and May 7, 2012, Brooks repeatedly contacted Velocity to check on the progress of the repairs. On May 21, 2012, Brooks returned to Velocity and found the Ski in the back lot partially disassembled. Velocity had run diagnostics on the Ski and "water tested" it but was unable to identify the source of the problems.

Velocity determined there was no point in continuing to work on the Ski unless it conducted a "teardown" for more comprehensive diagnostics. Per Velocity's policy, a teardown required customer approval. A technician report dated May 22, 2012, indicated the tune-up or "summerization" service was performed on the Ski and Velocity charged Brooks $219.92. Also, on that date, Velocity called Brooks and stated they would no longer perform services on the Ski and Brooks needed to come pick up the Ski and pay for the tune-up service. The same day, Brooks received a certified letter from Velocity stating:

[A]s of the date of this letter, you still have not picked up your 2007 Honda ARX12T3. Enclosed is a copy of your repair order showing a balance owed of $219.92. We will be charging you a storage fee of $25 per day starting May 28, 2012. Also if we do not receive payment within the

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next 30 days, we will initiate proceedings with the magistrate's office to take possession of that unit.

Brooks refused to pay the invoice or pick up the Ski because it was still not repaired.

On October 15, 2012, Brooks sued Velocity, American Honda Finance Corporation, and American Honda Motor Co., Inc., alleging breach of warranty, violation of the Magnuson-Moss Warranty Act, negligence, Unfair Trade Practices Act violation, constructive fraud, and fraud.

Around February 2013, Honda contacted Velocity explaining it was repossessing the Ski and wanted Velocity to begin a teardown. Velocity began the teardown but never finished. Velocity admitted the Ski would not run in its post-teardown condition. It is undisputed Brooks never authorized Velocity to perform the teardown.

On October 28, 2013, Brooks went to Velocity and found the Ski outside with the motor disassembled and standing water and oil in it. Velocity offered to put the Ski back together and waive the repair fees on the condition Brooks give a full release of all claims. Brooks declined. Further, Velocity would not guarantee the Ski would work. The Ski was not reassembled, and parts remained stripped. Velocity has remained in custody of the Ski since April 9, 2012.

A bench trial was held. All issues as to Defendants American Honda Finance Corporation and American Honda Motor Co., Inc. were resolved. The Master ruled Velocity wrongfully charged Brooks for storage fees and its refusal to release the Ski without payment of the storage fees constituted an unfair trade practice. Judgment was entered against Velocity in the amount of $44, 153.34 in favor of Brooks on her Unfair Trade Practices Act (the Act) cause of action. Further, the Master awarded Brooks $6, 108.12 in attorney's fees and costs. The Master denied Velocity's Motion for Reconsideration. This appeal followed.

II. Unfair Trade Practices Act claim

"A claim under the [Act] is an action at law." Jefferies v. Phillips, 316 S.C. 523, 527, 451 S.E.2d 21, 22 (Ct. App. 1994). "Therefore, this court will correct any error of law, but we must affirm the master's factual findings unless there is no evidence that reasonably supports those findings." Id. at 527, 451 S.E.2d at 22-23.

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To recover in an action under the [Act], the plaintiff must show: (1) the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property loss as a result of the defendant's unfair or deceptive act(s).

Wright v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498 (Ct. App. 2006).

A. Unfair or deceptive act

Velocity argues Brooks did not prove any unfair trade practice under the Act. Velocity claims Brooks took the Ski to Velocity for repairs and a tune-up, and Velocity charged her for parts and labor associated with the service. Velocity contends there is nothing unfair or deceptive about requiring a customer to pay for services rendered. Brooks argues similar to "bill padding" cases, ^[1] a business charging fees for impractical services to an inoperable Ski is akin to charging for services never performed. Brooks argues Velocity also engaged in unfair trade practices when it demanded storage fees of $25 per day and refused to release the inoperable Ski unless she executed a full release.

"An unfair trade practice has been defined as a practice which is offensive to public policy or which is immoral, unethical, or oppressive." Wogan v. Kunze, 366 S.C. 583, 606, 623 S.E.2d 107, 120 (Ct. App. 2005) (quoting deBondt v. Carlton Motorcars, Inc., 342 S.C. 254, 269, 536 S.E.2d 399, 407 (Ct. App. 2000)). Oppressive practices include those that are unreasonably burdensome, severe, or tyrannical. Wingard v. Exxon Co., U.S.A., 819 F.Supp. 497, 506 (D.S.C. 1992). Examples of deceptive or unfair practices include...