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

• Citation: 496 S.E.2d 637,329 S.C. 414
• Decision Date: 04 November 1997
• Docket Number: No. 2709,2709
• Court: Court of Appeals of South Carolina
• Parties: CHARLESTON LUMBER COMPANY, INC., Respondent, v. MILLER HOUSING CORPORATION, and Robert E. Miller, Jr., Appellants. . Reheard

Page 637

496 S.E.2d 637

329 S.C. 414

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

No. 2709.

Court of Appeals of South Carolina.

Reheard Nov. 4, 1997.

Refiled Jan. 12, 1998.

Rehearing Denied Mar. 12, 1998.

[329 S.C. 416] Edward J. Westbrook and Christy Gruenloh, both of Ness, Motley, Loadholt, Richardson & Poole, Charleston, for appellants.

Steven L. Smith, of Smith & Collins, North Charleston, for respondent.

ORDER ON REHEARING

CURETON, Judge (en banc):

This court granted appellants' petition for rehearing en banc. In their petition, the appellants claim that a panel of this court, in affirming the grant of summary judgment to Charleston Lumber Company: (1) overruled a previous panel's decision, and (2) improperly ruled on an issue not presented to the trial court. After hearing oral argument, it is ordered that the opinion heretofore filed, Charleston Lumber Co., Inc. v. Miller Housing Corp., Op. No. 2709 (S.C.Ct.App. filed August 18, 1997) (Davis Adv. Sh. No. 25, at 24), be withdrawn and the attached Opinion be substituted therefor.

IT IS SO ORDERED:

/s/ C. Tolbert Goolsby, Jr., J.

/s/ Carol Connor, J.

/s/ Kaye G. Hearn, J.

/s/ Ralph King Anderson, Jr., J.

/s/ Thomas E. Huff, J.

/s/ H. Samuel Stilwell, J.

/s/ William P. Keesley, AAJ.

/s/ L. Casey Manning, AAJ.

CURETON, Judge (en banc):

This case arises from billing disputes between Charleston Lumber Company, Inc. (Charleston Lumber), a construction materials supplier, and its customer, Miller Housing Corporation. Miller Housing Corporation and its president appeal from the grant of summary judgment in favor of Charleston Lumber. We affirm.

Charleston Lumber filed a collection action against Miller Housing Corporation and its President, Robert E. Miller, Jr. who was sued in his individual capacity because he guaranteed payment of the account. ¹ The Millers counterclaimed for negligence, fraud, and violation of the Unfair Trade Practices Act (UTPA), S.C.Code Ann. §§ 39-5-10 to -560 (1985 & Supp.1997). In June 1992, the court granted Charleston Lumber's motion for summary judgment as to the Millers' fraud and negligence causes of action. However, it permitted the Millers to amend their counterclaim to restate their UTPA cause of action and to allege libel, slander, and a set-off. In this same order, the trial court entered a "scheduling order" in which it ordered the parties to exchange a list of itemized damages and witnesses by July 5, 1992. On September 9, 1993, the trial court granted summary judgment to Charleston Lumber on one of its collection claims and dismissed the Millers' counterclaims for set-off, libel, and slander. Thereafter, on September 17, 1993, a jury rejected Charleston Lumber's remaining collection claim against the Millers but found Charleston Lumber committed unfair trade practices. However, the jury awarded no damages. The Millers appealed: (1) the court's grant of summary judgment to Charleston on their fraud claim, and (2) certain aspects of the UTPA verdict. The details of that appeal are set forth in this court's opinion in Charleston Lumber Co. v. Miller Housing Corp., 318 S.C. 471, 458 S.E.2d 431 (Ct.App.1995) (Charleston Lumber I ).

In Charleston Lumber I, we reversed the trial court's grant of summary judgment to Charleston Lumber on the Millers' counterclaim for fraud. We found the trial court "incorrectly held as a matter of law that the Millers failed to show the first and last elements of fraud, i.e., a representation and damages proximately caused by the representation." Id. at 480, 458 S.E.2d at 437. We also held that "further development of the facts is needed to determine the extent of actual damages." Id. at 481, 458 S.E.2d at 437.

On remand, Charleston Lumber moved for summary judgment, arguing that the jury's UTPA verdict of no damages precluded the fraud claim. The trial court found that damages in the fraud cause of action were barred by principles of res judicata as a result of the jury's UTPA verdict, and granted summary judgment.

Issues on Appeal

On appeal, the Millers argue the trial court:

A. Had no authority to dismiss their fraud claim based on their failure to show damages in the UTPA cause of action because Charleston Lumber I held that further development of the facts was needed to determine the extent of actual damages;

B. Erred in granting summary judgment to Charleston Lumber on the basis of res judicata as to the damages issue when they had prevailed on the liability aspects of their UTPA claim, inasmuch as the elements of damages for fraud and a UTPA violation are different; and

C. Erred in granting summary judgment on their fraud claim when the evidence shows a genuine issue of material fact exists regarding damages.

Charleston Lumber argues the trial court should be affirmed because the Millers waived any objections they had to the court's grant of summary judgment on the fraud claim by amending their complaint regarding the UTPA cause of action. ²

Discussion

A.

In argument before the trial court on its motion for summary judgment, Charleston Lumber contended dismissal of the Millers' fraud claim was mandated because the fraud and UTPA claims grew out of the same factual situation, and thus the damages were the same in both causes of action. Charleston Lumber also argued that because the jury found no damages on the UTPA claim, the Millers could show no damages on the fraud claim. The Millers asserted that Charleston Lumber made the same argument before this court as a ground for affirmance in the prior appeal and that we necessarily rejected the argument. Thus, they argued Charleston Lumber was precluded from making this res judicata argument to the trial court. The Millers also contended the trial court had no authority to dismiss their fraud cause of action based on their failure to show damages in the UTPA cause of action because this court had already ruled further development of the facts on remand was needed to determine the extent of their damages.

It is well settled that an undisturbed finding of this court contained within a decision in a previous appeal of the same case is the law of the case. Huggins v Winn-Dixie Greenville, Inc., 252 S.C. 353, 166 S.E.2d 297 (1969). Also, when a party makes the same argument it made in a former appeal, the decision in the former appeal is the law of the case. Robert E. Lee & Co. v. Commission of Public Works, 250 S.C. 394, 158 S.E.2d 185 (1967). "Matters decided by the appellate court cannot be reheard, reconsidered, or relitigated in the trial court, even under the guise of a different form." Ackerman v. McMillan, 324 S.C. 440, 443, 477 S.E.2d 267, 268 (Ct.App.1996). "The decision of the appellate court is final as to all questions decided." Id. Cf. 5 C.J.S. Appeal and Error § 975 (1993) (rule does not apply to matters which were raised on appeal but were not decided).

Having stated the applicable law, we turn now to the effect of our prior decision on the issue of res judicata. The grant of summary judgment on the fraud cause of action occurred before the UTPA verdict. Although the Millers appealed the dismissal of their fraud claim after the UTPA verdict, the trial court never had an opportunity to rule on the res judicata issue prior to the former appeal. Ordinarily, this court will not rule on an issue not presented to and ruled on by the trial court. Food Mart v. South Carolina Dep't of Health and Envtl. Control, 322 S.C. 232, 471 S.E.2d 688 (1996). Moreover, the parties now disagree as to whether the issue of res judicata was even argued in the prior appeal. A reading of Charleston Lumber's brief arguably does present the res judicata issue as a basis for affirming the trial court in the prior appeal. ³ The Millers thus argue that Charleston Lumber I implicitly rejected the res judicata claim. We disagree, and hold that the lack of a ruling on Charleston Lumber's res judicata claim in the former appeal does not raise an inference that we rejected the claim. In fact, it would have been improper for this court to have ruled as a basis for affirmance on a ground not presented to the trial court. See Brashier v. South Carolina Dept. of Transp., 327 S.C. 179, 186, n. 7, 490 S.E.2d 8, 12 n. 7 (1997); Carter v. Peace, 229 S.C. 346, 93 S.E.2d 113 (1956) (proposition relied on as an additional sustaining ground must be presented to and passed upon by the trial court to warrant consideration on appeal), cited in South Carolina Pub. Serv. Auth. v. Carolina Power & Light Co., 244 S.C. 466, 137 S.E.2d 507 (1964); O'Tuel v. Villani, 318 S.C. 24, 31 n. 1, 455 S.E.2d 698, 702 n. 1 (Ct.App.1995). Therefore, our prior decision has no res judicata effect on the damages issue in the fraud cause of action.

B.

The Millers next argue the trial court erred in granting summary judgment to Charleston Lumber on the basis of res judicata since they had prevailed on the liability aspects of the UTPA cause of action, and the elements of damages for fraud and violation of the UTPA are different.

Under the doctrine of res judicata, a final judgment on the merits in a prior action will preclude the parties from relitigating any issues actually litigated or those that might have been litigated in the first action. Town of Sullivan's Island v. Felger, 318 S.C. 340, 457 S.E.2d 626 (Ct.App.1995). In order for the doctrine of res judicata to apply, the following elements must be shown: (1) the judgment must be final, valid, and on the merits, (2) the parties in the subsequent action must be identical to those in the first, and (3) the second action must involve matters properly included in the first action. Id. There is a conflict of authority, however, as to whether res judicata is applicable where the subsequent adjudication is in the same and not a new action. Compare 46 Am.Jur.2d Judgments § 596 (1994) (doctrine of res judicata has been regarded as inoperative where...