Charleston Lumber Co., Inc. v. Miller Housing Corp.

• Decision Date: 06 December 1994
• Docket Number: No. 2318,2318
• Citation: 318 S.C. 471,458 S.E.2d 431
• Court: South Carolina Court of Appeals
• Parties: CHARLESTON LUMBER COMPANY, INC., Respondent, v. MILLER HOUSING CORPORATION, and Robert E. Miller, Jr., Appellants. . Heard

Page 431

458 S.E.2d 431

318 S.C. 471

CHARLESTON LUMBER COMPANY, INC., Respondent, v. MILLER HOUSING CORPORATION, and Robert E. Miller, Jr., Appellants.

No. 2318.

Court of Appeals of South Carolina.

Heard Dec. 6, 1994.

Decided March 13, 1995.

Certiorari Denied March 21, 1996.

Edward J. Westbrook, of Ness, Motley, Loadholt, Richardson & Poole, Charleston, for appellants.

Steven L. Smith and Joe S. Dusenbury, Jr., both of Smith, Collins & Dusenbury, N. Charleston, for respondent.

CURETON, Judge.

Respondent, Charleston Lumber Company, Inc. (Charleston Lumber), brought six lawsuits against the appellants, Miller Housing Corporation and Robert E. Miller, Jr. (the Millers), seeking the recovery of money allegedly due on an open account, the collection of a promissory note, and the foreclosure of a mortgage on five separate lots. ¹ In its answer, the Millers denied liability and asserted two counterclaims for fraud, a counterclaim for violation of the Unfair Trade Practices Act (UTPA), and an affirmative defense of negligence. Charleston Lumber then moved for summary judgment on the grounds that the Millers had suffered no damages pursuant to their fraud counterclaim, and the Millers had no basis for a negligence cause of action. The Millers likewise moved for summary judgment on the open account on the ground that Charleston Lumber did not have a personal guarantee from Robert E. Miller, Jr. regarding the alleged open account balance. On June 28, 1992, the trial court issued an order granting Charleston Lumber's motion for summary judgment against the Millers on the first counterclaim for fraud and on the negligence counterclaim. ² In the same order, the court denied the Millers' motion for summary judgment on the open account, but allowed the Millers to amend their counterclaims to allege a set-off, general denial, causes of action for libel and slander, and violation of the UTPA.

Based on this order, the Millers amended their answer and counterclaims to include two counterclaims for violation of the UTPA, two set-offs, and one counterclaim for libel and slander. ³ On September 9, 1993, the trial court granted Charleston Lumber's second motion for summary judgment for the balance due on the promissory note and against the Millers on their set-offs and libel and slander counterclaims.

The remaining issues in the case, Charleston Lumber's suit on the open account and the Millers' two counterclaims for violation of the UTPA, were tried before a jury. Two sets of interrogatories were submitted to the jury, the first asked the jury to determine the balance of the open account and whether Miller Housing Corporation, Robert E. Miller, Jr. or both were liable for it. The second set of interrogatories asked the jury to determine whether Charleston Lumber committed a violation of the UTPA, and if so, whether the Millers suffered actual damages as a proximate result of the unfair or deceptive acts.

The jury found for Charleston Lumber against Miller Housing on the open account, which it determined to be $24,884.36. Although the jury found that Charleston Lumber's actions constituted "an unfair or deceptive act," it awarded the Millers no damages because it concluded the Millers suffered no actual damages as a proximate result of the unfair and deceptive acts of Charleston Lumber. The Millers, nevertheless, moved for an award of attorney fees pursuant to the attorney's fee provision in the UTPA. Holding that attorney fees cannot be recovered unless the claimant has been awarded actual or nominal damages, the trial court denied the Millers' request for attorney fees, but awarded Charleston Lumber attorney's fees as provided for in the promissory note. The Millers appeal. We affirm in part, reverse in part, modify in part and remand.

FACTS

Charleston Lumber sells construction materials. Miller Housing was in the business of building homes and Robert E. Miller, Jr. was its Vice-President. Miller Housing began doing business with Charleston Lumber in the late 1970's. As is customary in the construction business, the Millers requested quotes from Charleston Lumber and other suppliers on homes they were building. If the Millers accepted Charleston Lumber's quote, Charleston Lumber would ship the materials and invoice them. Around 1987-88 Pelican Company of Conway, S.C. took over Charleston Lumber. After the takeover, the Millers began noticing an increase in errors in Charleston Lumber's invoices, all in Charleston Lumber's favor. Specifically, Charleston Lumber's invoiced price for an item would be higher than the price it had quoted in its bid. As a result of these errors, the Millers' personnel spent much more time than usual checking Charleston Lumber's invoices against its quotes, correcting errors, and notifying Charleston Lumber of the mistakes.

After the Millers pointed out the mistakes, Charleston Lumber would agree to issue the Millers "credits" against the next month's statement. Charleston Lumber, however, often delayed or even failed to issue the promised credits. The Millers claim Charleston Lumber's actions were not inadvertent, but, instead, a concerted effort by Charleston Lumber's executives to intentionally delay giving the Millers credits to avoid showing an adverse impact on their sales in any one month.

Since each incorrect monthly statement built on the last, the Millers claimed Charleston Lumber's practice of bidding low, billing high, and delaying credits created an accounting nightmare, and had a significant financial impact on them. In fact, Charleston Lumber's general manager was unable to reconcile the two examples of Charleston Lumber's monthly statements that the Millers' counsel showed him at trial. One of Charleston Lumber's own salesmen admitted that their executives met and agreed to delay issuing the credits.

According to the Millers, by December 1989, the account was so confused that they were unable to reconcile the Charleston Lumber statements with their own records. Charleston Lumber contended that the Millers owed it $149,000, this amount including all purchases, credits, and payments on the account up to December 31, 1989. In February 1990, Charleston Lumber presented Mr. Miller with a personal note for $149,000, representing the amount owed on the Millers' account. ⁴ On February 15, 1990, Mr. Miller executed and delivered the promissory note on behalf of himself and Miller Housing in the amount of $149,000 to Charleston Lumber. As security for this Note, Mr. Miller also executed a blanket mortgage on several parcels of real property.

By August 1990, the Millers had paid the note down to around $65,000 to $74,000. Mr. Miller offered to pay off the entire note in order to release the mortgage, but Charleston Lumber refused to accept the payment unless Mr. Miller agreed to be personally responsible for another outstanding open account in the amount of $48,000. ⁵ Mr. Miller refused.

Charleston Lumber then filed this suit to foreclose on the mortgage on five pieces of property which secured the $149,000 note. Charleston Lumber alleged the note to be due and owing in the amount of $74,000. Charleston Lumber also filed suit against the Millers to receive the $28,042.20 outstanding balance on an open account which Mr. Miller allegedly personally guaranteed in June 1983.

The Millers appeal the trial judge's orders for summary judgment, his refusal to award them attorney fees based on the UTPA, and the awarding of attorney fees to Charleston Lumber.

I.

We first note that Charleston Lumber maintains this appeal should be dismissed on jurisdictional grounds. Charleston Lumber asserts the trial court should be affirmed on all issues because the Millers have not appealed one of the cases and therefore should be bound by the trial court's ruling in the unappealed case.

Charleston Lumber brought five lawsuits (Case Nos. 90-CP-10-5028 through 90-CP-10-5032) to enforce the collection of the $149,000 promissory note. The five suits were identical except for the differing property descriptions. They all sought to collect the balance due on a single note. The Millers submitted identical answers, counterclaims, and amended answers to the five suits. Although the trial court never consolidated the five cases, the judge signed a single order for all of them.

The Millers filed its first notice of appeal on December 28, 1993, which listed all the cases except Case No. 90-CP-10-5032. The Millers' amended notice of intent to appeal also neglected to mention this case. Charleston Lumber argues since all five of the complaints sought a single recovery and all of the Millers' counterclaims sought a single recovery, the failure to appeal one of the cases is a fatal error. We disagree.

Clerical errors in a notice of appeal do not destroy the appeal. Moody v. Dickinson, 54 S.C. 526, 32 S.E. 563 (1899) (the court may properly allow an appellant to correct a mere clerical error in the title to his notice of intention to appeal where there is no prejudice to the appellee). We find this error was clerical in nature, and does not warrant a dismissal of the appeal. Charleston Lumber does not allege any prejudice as a result of the omission, and there can be no doubt that Charleston Lumber had notice that the Millers had appealed all cases. Charleston Lumber's effort to take advantage of a mere clerical error by which they were in no way prejudiced or misled is rejected. Both notices of appeal clearly state, "Robert E. Miller, Jr. and Miller Housing Corporation appeal from the following Orders and/or Judgments of The Honorable Circuit Court." Thereafter, each of the orders is described and attached. We therefore find this court has jurisdiction to hear this appeal.

II.

As relates to the merits of this case, the Millers first argue the trial court erred in granting summary judgment against them on the $149,000 note because they claim the note was procured as part of a misrepresentation scheme.

Rule...