Daisy Outdoor Advertising Co., Inc. v. Abbott

• Citation: 451 S.E.2d 394,317 S.C. 14
• Decision Date: 11 May 1994
• Docket Number: No. 2224,2224
• Parties: DAISY OUTDOOR ADVERTISING COMPANY, INC., Appellant, v. Dean ABBOTT, d/b/a Abbott Company Outdoor Advertising, Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 394

451 S.E.2d 394

317 S.C. 14

DAISY OUTDOOR ADVERTISING COMPANY, INC., Appellant, v. Dean ABBOTT, d/b/a Abbott Company Outdoor Advertising, Respondent.

No. 2224.

Court of Appeals of South Carolina.

Heard May 11, 1994.

Decided Sept. 6, 1994.

Rehearing Denied Dec. 19, 1994.

Certiorari Granted Aug. 7, 1995.

William G. Rhoden, of Winter & Rhoden, Gaffney, for appellant.

J. Edwin McDonnell, Spartanburg, for respondent.

GOOLSBY, Judge:

Daisy Outdoor Advertising Company, Inc. brought this action for interference with an existing contractual relationship against Dean Abbott, who does business as Abbott Company Outdoor Advertising. Abbott counterclaimed for interference with existing contractual relationships and for violation of the South Carolina Unfair Trade Practices Act, S.C.Code Ann. §§ 39-5-10 to -350 (1985 and Supp.1993) (UTPA). The trial judge, sitting without a jury, found against Daisy on its claim and found in Abbott's favor on Abbott's counterclaims. Under the UTPA counterclaim, the trial court awarded Abbott $23,025 in treble damages and $5,000 in attorney fees. Daisy appeals. We affirm in part, reverse in part, and remand.

Because this appeal involves actions at law tried by a judge without a jury, we must affirm the trial judge's factual findings unless there is no evidence that reasonably supports the trial judge's findings. Townes Assocs. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Moreover, we will not disturb the trial judge's findings of fact that depend on the credibility of witnesses. Davis v. Fowler, 17 S.C. 590 (1882).

Daisy and Abbott are competitors in the outdoor advertising business. They rent billboards, mostly along interstate highways in South Carolina.

The location and use of billboards placed along South Carolina interstate highways are governed by the South Carolina Highway Advertising Control Act, S.C.Code Ann. §§ 57-25-110 to -710 (1991 and Supp.1993). Under § 57-25-140(E) (1991), a billboard may not be built within 500 feet of another billboard. Billboards that advertise the sale or lease of the property on which they are located, however, are not subject to regulation. § 57-25-140(A)(5) and (D) (1991).

In 1986, Daisy purchased property along Interstate-85 for the purpose of putting up a billboard. The property adjoined property owned by Jay Yang Designs, Ltd. An existing billboard owned at the time by the Pettit Estate stood on the Yang property. The distance from the billboard on the Yang property to any point on the Daisy property measured less than 500 feet. Because § 57-25-140(E) prohibited Daisy from lawfully erecting a billboard on its property as long as the Pettit Estate's billboard stood where it did, Daisy sought to lease the Yang property beginning in May 1988.

Daisy contends it later entered into a lease contract with Yang, the contract that forms the basis for its cause of action against Abbott for interference with an existing contractual relationship.

Abbott, however, also claims to have leased the Yang property.

Abbott acquired the Pettit Estate's billboard in October 1986 and leased the property from Yang in March 1987, after obtaining a permit for the billboard. The term of Abbott's lease was to end on April 30, 1988. On February 26, 1988, Abbott received a letter from a Yang employee reminding Abbott about the expiration date of Abbott's lease. Abbott, however, continued to use the billboard beyond that date and renewed its lease with Yang on May 19, 1988.

Like Daisy, Abbott owned property along Interstate-85. Two billboards that stood on Abbott's property form the basis for Abbott's causes of action against Daisy for interference with existing contractual relationships and for violation of the UTPA.

Abbott rented one billboard to Hamrick's from 1987 until 1990. Daisy owned the property next to the Hamrick's billboard. Because § 57-25-140(E) precluded Daisy from putting a billboard on its property, Daisy asked Abbott to share with it one side of the Hamrick's billboard. Abbott refused. Thereafter, Daisy built an unregulated "For Sale" sign that blocked the view of the Hamrick's billboard from Interstate-85. Hamrick's cancelled its rental contract with Abbott because of the obstruction.

Abbott rented the other billboard to Clarkson Industrial Movers from 1989 until 1990. Daisy was a part-owner of the property next to the Clarkson billboard. A radio station leased the property from Daisy. After Abbott erected its billboard, Daisy obstructed the southbound view of the billboard with another outdoor billboard that advertised the radio station. The billboard violated the outdoor advertising code, so Daisy later changed its billboard to an unregulated "For Sale" sign. Because the sign obstructed the southbound view of Abbott's billboard, Abbott moved the Clarkson advertisement to another location.

I.

Daisy first appeals from the trial judge's finding that Abbott did not interfere with Daisy's purported contract with Yang.

South Carolina law recognizes a tort cause of action for interference with an existing contractual relationship. DeBerry v. McCain, 275 S.C. 569, 274 S.E.2d 293 (1981). There can be no cause of action for interference with an existing contractual relationship, however, if there is no contract to begin with. F. Patrick Hubbard and Robert L. Felix, The South Carolina Law of Torts, at 307 (1990).

Here, the trial judge found Daisy had no contract with Yang with which Abbott could have interfered. We cannot quarrel with this finding.

Daisy was unable to produce evidence satisfactory to the trial judge to prove that it had entered into any lease contract with Yang before Abbott entered into its lease contract with Yang on May 19, 1988. Joey Lemmons, a part-owner of Daisy, testified he met with a Yang employee to discuss Daisy's leasing the property from Yang. He could not recall, however, if this meeting took place in February, April, or June 1988. Moreover, Daisy's copy of the lease contract that Daisy claimed it had with Yang was undated. Although Yang's copy of this contract was dated May 2, 1988, someone other than the person who signed the contract had dated it. The employee who signed this copy for Yang could not remember the date when she signed it.

II.

Daisy next appeals the trial judge's findings that Daisy intentionally interfered with Abbott's contracts with Hamrick's and Clarkson by blocking Abbott's billboards with "For Sale" signs. We hold there is evidence that reasonably supports the trial judge's findings in these regards.

The evidence suggests Daisy knew Abbott had advertising contracts with third persons before Daisy erected its "For Sale" signs. It also suggests Daisy knew its "For Sale" signs blocked the view of Abbott's billboards. There is no evidence that shows Daisy could not have placed its "For Sale" signs elsewhere on its tracts to avoid blocking the view of Abbott's billboards.

III.

Daisy argues the trial judge erred in finding Daisy violated the UTPA because there was no showing that Daisy's actions impacted upon the public interest. We agree.

An unfair method of competition or an unfair or deceptive act or practice in the conduct of any trade or commerce that affects only the parties to the controversy provides no basis for an action under the UTPA. See Key Co. v. Fameco Distribs., 292 S.C. 524, 528, 357 S.E.2d 476, 478 (Ct.App.1987) (no UTPA violation held shown where the dispute "involved nothing more than a breach of contract that affected no one but the parties to the contract"). To be actionable under the UTPA, an unfair method of competition or an unfair or deceptive act or practice must have an "impact on the public interest." Florence Paper Co. v. Orphan, 298 S.C. 210, 213, 379 S.E.2d 289, 291 (1989); Noack Enters. v. Country Corner Interiors, 290 S.C. 475, 351 S.E.2d 347 (Ct.App.1986); Michael R. Smith, Recent Developments Under the South Carolina Unfair Trade Practices Act, 44 S.C.L.Rev. 543 (1993); see Money Savers Pharmacy v. Koffler Stores (Western) Ltd., 37 Wash.App. 602, 682 P.2d 960, 965 (1984) ("a necessary element of an unfair competition claim brought under [the Washington Consumer Protection Act] is that the defendant's conduct is 'injurious to the public interest' "). Expressed differently, the UTPA "is not available to redress a private wrong where the public interest is unaffected." Noack, 290 S.C. at 479, 351 S.E.2d at 350; LaMotte v. Punch Line of Columbia, 296 S.C. 66, 370 S.E.2d 711 (1988). To satisfy the "affecting the people of this State" requirement, a plaintiff must show that the acts alleged "adversely affect the public." Noack, 290 S.C. at 480, 351 S.E.2d at 350 (emphasis added); McTeer v. Provident Life and Accident Ins., 712 F.Supp. 512 (D.S.C.1989).

Abbott produced evidence, and the trial judge found, that Daisy's conduct affected the public interest because it has the potential for repetition and because the conduct occurred "in a business setting." Merely offering evidence, however, that shows a wrongful act has the potential for repetition or that it occurs in the course of business is not enough to establish a violation of the UTPA if, as the evidence shows here, the conduct adversely affects only the parties involved. See Key Co., 292 S.C. at 528, 357 S.E.2d at 478. For the UTPA to apply, the conduct must be shown to have had an adverse effect on the public. Noack, 290 S.C. at 479, 351 S.E.2d at 350.

Although there is evidence that shows Abbott moved the Clarkson advertisement to another location and Hamrick's cancelled its contract with Abbott because of Daisy's actions, there is no evidence either that the relocation of the Clarkson advertisement adversely affected Clarkson or that the cancellation of the Hamrick's advertising contract with Abbott adversely affected Hamrick's; and although there is an inference that Daisy has competitors other than Abbott, there is no evidence that suggests Daisy could obstruct any of their...