CHARLESTON LUMBER v. MILLER HOUSING, No. 25060.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 525 S.E.2d 869,338 S.C. 171
• Parties: CHARLESTON LUMBER CO., INC., Respondent, v. MILLER HOUSING CORP. and Robert E. Miller, Jr., Petitioners.
• Decision Date: 24 January 2000
• Docket Number: No. 25060.

338 S.C. 171
525 S.E.2d 869

CHARLESTON LUMBER CO., INC., Respondent,
v.
MILLER HOUSING CORP. and Robert E. Miller, Jr., Petitioners

No. 25060.

Supreme Court of South Carolina.

Heard December 14, 1999.

Decided January 24, 2000.

Rehearing Denied February 16, 2000.

338 S.C. 172

Edward J. Westbrook and Christy Gruenloh, of Ness, Motley, Loadholt, Richardson & Poole, of Charleston, for petitioners

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

PER CURIAM:

We granted a writ of certiorari to review the Court of Appeals' decision in Charleston Lumber Co., Inc. v. Miller Housing Corp., 329 S.C. 414, 496 S.E.2d 637 (Ct.App.1998) (Charleston Lumber II). We reverse.

FACTS

In 1990, Respondent Charleston Lumber Company, Inc., (Charleston Lumber) filed several collection actions arising out of billing disputes against Petitioners Miller Housing Corporation and Robert E. Miller, Jr. (Miller). Miller asserted various counterclaims, including fraud and violation of the South Carolina Unfair Trade Practices Act (UTPA).¹ In general, Miller claimed Charleston Lumber intentionally and repeatedly submitted low bids on Miller's construction projects, then after Miller selected Charleston Lumber as the lowest bidder, Charleston Lumber delivered the supplies but billed Miller at a higher price.

Charleston Lumber filed a motion for summary judgment on Miller's fraud counterclaim. Concluding there were no genuine issues of material fact concerning the fraud elements of representation or damages, the trial court granted the motion for summary judgment in June 1992.²

338 S.C. 173

During the late-1993 trial on Miller's UTPA claim, Miller presented evidence of the number of hours employees spent reconciling Charleston Lumber's billing invoices with its bids and notifying Charleston Lumber of the mistakes. Miller's counsel represented to the court that at the summary judgment hearing in 1992 he did not know Miller had hired an additional employee to handle the Charleston Lumber matter, but two months later, discovered Miller had hired an additional employee. As a discovery sanction, the trial judge refused to allow evidence of the additional employee to be presented to the jury. The trial judge compelled Miller and Charleston Lumber to submit a stipulation stating Miller did not hire any employees to reconcile the Charleston Lumber invoices, pay overtime to existing employees, or lose business as a result of the Charleston Lumber billing. Miller offered evidence of $53,360 in damages

Responding to special interrogatories, the jury determined Charleston Lumber violated the UTPA but found Miller had not "suffered an actual injury as a proximate result of the unfair or deceptive act." The jury did not consider the additional employee as an element of damage.

Miller appealed several issues, including the grant of summary judgment on the fraud counterclaim. The Court of Appeals reversed the order granting summary judgment. Charleston Lumber Co., Inc. v. Miller Housing Corp., 318 S.C. 471, 458 S.E.2d 431 (Ct.App.1995) (Charleston Lumber I). In relevant part, the Court of Appeals held:

[t]he 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;

[t]he trial court also improperly ruled as a matter of law that the Millers failed to show any damages as a result of the alleged fraud. The Millers alleged damages of lost employee time based on their personnel having to spend numerous hours each month checking and correcting the bids versus the actual charges. We find that employee time

338 S.C. 174

is a compensable damage. Id. at 481, 458 S.E.2d at 437; and

[a] further development of the facts is needed to determine the

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