Cavalier Pools & Spas, Inc. v. The Fripp Co.
| Decision Date | 14 July 2005 |
| Docket Number | 2005-UP-439 |
| Court | South Carolina Court of Appeals |
| Parties | Cavalier Pools & Spas, Inc., Respondent, v. The Fripp Company, Inc., Appellant. |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted June 1, 2005.
Appeal From Beaufort County Thomas Kemmerlin, Master-In-Equity and Special Circuit Judge
Thomas A. Holloway, of Beaufort, for Appellant.
Robert V. Mathison, of Hilton Head Island, for Respondent.
The Fripp Company, Inc., appeals the trial court's award of $31, 300 plus interest for a breach of contract to Cavalier Pools & Spas, Inc. We affirm.
In May 1999, Cavalier Pools & Spas, Inc., entered into a contract with Fripp Company, Inc., for the construction of swimming pools, pool decks, and other amenities. The contract required Fripp to pay 10% down, 50% upon completion of the pool shells, 30% upon completion of each pool deck, and the remaining 10% upon final completion and D.H.E.C. approval.
Cavalier filed a complaint against Fripp on November 27, 2000 alleging breach of contract with actual damages in the amount of $33, 200. Fripp answered with a general denial. Following trial, on June 27, 2003, the master-in-equity found in favor of Cavalier in the amount of $31, 300 for breach of contract as well as 8 3/4 % interest from May 1, 2000, resulting in a compounded balance of $40, 279.77. This appeal followed. [1]
An action for breach of contract seeking money damages is an action at law.” Sterling Dev. Co. v. Collins 309 S.C. 237, 240, 421 S.E.2d 402, 404 (1992). In an action at law, tried without a jury, the appellate court standard of review extends only to the correction of errors of law.” Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 334, 577 S.E.2d 468, 472 (Ct. App. 2003). The trial judge's findings of fact will not be disturbed unless those findings are wholly unsupported by the evidence or controlled by an erroneous conception or application of the law.” Gordon v. Colonial Ins Co. of California, 342 S.C. 152, 155, 536 S.E.2d 376, 378 (Ct. App. 2000) (quoting Maddux Supply Co. v. Safhi, Inc., 316 S.C. 404, 406, 450 S.E.2d 101, 102 (Ct. App. 1994)). Moreover, an appellate court will not disregard the fact that the trial court is in a better position to determine the credibility of witnesses. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981). It is not for the appellate court to weigh the evidence. Kiriakides v. Atlas Food Sys. & Servs., Inc., 343 S.C. 587, 594, 541 S.E.2d 257, 261 (2001).
Fripp claims the trial court erred in awarding Cavalier $31, 300 plus interest, or, in the alternative, by failing to set-off this award with amounts attributable to Cavalier's defective and incomplete workmanship. We disagree.
Fripp argued at trial and on appeal that it was not obligated to pay Cavalier the final 10% because Cavalier did not complete the job as specified in the contract. Fripp placed particular emphasis on the presence of cracks in the pool's concrete, especially around the drain, and problems with tiles used in the pool. The trial court, however, found Cavalier performed the work within a reasonable time, that [a]ll conditions precedent to the duty of Fripp Company to pay were performed by Cavalier or otherwise fulfilled” and Cavalier sustained a readily ascertainable amount of damages of $31, 300. In addition, the trial court awarded prejudgment interest at 8 3/4%. This decision was based on several factors, including the trial court's determination that the testimony of Cavalier employees was more credible than the testimony of Dennis Robinson, the project director and agent of Fripp.
For example, Robinson conveyed in a memo to Cavalier that he put $20, 000 into escrow to cover the final 10% due under the contract. However, at trial, he admitted the money was never placed in an actual escrow account. In addition, Robinson claimed Fripp incurred costs as a result of Cavalier's alleged failure to perform under the contract. At trial he only presented one invoice for repairs in the amount of $2, 879 and even admitted that, although $1, 430 was used to replace tiles that had allegedly fallen off the pools, the remainder of the invoice was for pool service and other matters unrelated to Cavalier's performance. There was also some question as to the authenticity of photos admitted by Fripp to show alleged cracks in the pools in question. [2]
On the other hand, Mark Horton, a Cavalier employee, testified that he was unaware of problems with the tile. In fact, while explaining in detail the method of installing decorative tile, he insisted that it was not possible for tile at the water level to fall out as its alleged that it did, ” unless the tile was forcibly removed, pried, hit, knocked, or something.” Horton also noted that Cavalier repaired the items listed on the punch list, a list of items in need of repair, before D.H.E.C. would issue approval. James Lloyd, president of Cavalier with over 40 years of experience in the construction of pools, denied the existence of cracks in the concrete and around the drain and testified as to the industry standard regarding the acceptable tolerance for cracks. Lloyd commented that none of the cracks in the photographs presented by Fripp appeared more than one-eighth of an inch wide, the industry standard. Lloyd, whose testimony the trial court found more credible, insisted that there was nothing remaining to be done to those pools pursuant to the contract.” He acknowledged some problems arose with the pool, but all were covered under the warranty and were separate and distinct from the requirements under the contract.
Fripp also argues that the amount awarded should be set-off by the cost of repairs which it incurred. The trial court held [i]f and to the extent that any defect requiring repair exists, the defect resulted from errors and omissions by Fripp Company and is not the responsibility of Cavalier.” Furthermore, Fripp did not make a demand for a set-off in its answer, or in a counterclaim. See, e.g., Ellie, Inc. v. Miccichi, 358 S.C. 78, 102, 594 S.E.2d 485, 498 (Ct. App. 2004) ().
The trial court concluded that Fripp's acceptance of the pool was not a condition precedent to Cavalier's obligation to perform under the contract and, thus, as a matter of law, Fripp breached the terms of the contract by not performing. A condition precedent entails something that is essential to a right of action, as opposed to a condition subsequent, which is something relied upon to modify or defeat the action.” Worley v. Yarborough Ford, Inc., 317 S.C. 206, 210, 452 S.E.2d 622, 624 (Ct. App. 1994). In contract law, the term connotes any fact other than the lapse of time, which, unless excused, must exist or occur before a duty of immediate performance arises. Ballenger Corp. v. City of Columbia, 286 S.C. 1, 5, 331 S.E.2d 365, 368 (Ct. App. 1985). The question of whether a provision in a contract constitutes a condition precedent is a question of construction dependent on the intent of the parties to be gathered from the language they employ.” Id. at 5, 331 S.E.2d at 368. After reviewing the agreement, we hold as a matter of law that the agreement contains no express provision or condition that makes Fripp's acceptance of the pool a condition precedent to its obligation to perform. Likewise, we conclude as a matter of law that such a condition precedent should not be implied from the facts of this case. Generally, a condition precedent may not be implied when it might have been provided for by the express agreement.” Worley, 317 S.C. at 210, 452 S.E.2d at 625 (further citations omitted).
Though Horton admitted that the cracks in the concrete on the photographs submitted by Fripp were not the best workmanship that [he had] ever seen” and that [t]here [were] some substantial problems with this concrete and the cracking and with the drain, Cavalier completed the pools on March 28,...
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