Folkens v. Hunt

• Decision Date: 08 January 1990
• Docket Number: No. 23129,23129
• Citation: 300 S.C. 251,387 S.E.2d 265
• Court: South Carolina Supreme Court
• Parties: Karl A. FOLKENS, Robert H. Moore, and Douglas D. Cooke, as Executors of the Estate of M. Murray McLendon, Jr., Appellants, v. J.W. HUNT, Jr., J.W. Hunt, R.L. Davis, W.R. Hunt, B.L. Davis, P.R. Johnson, S.V. Smith and Michael S. Strange, individually and d/b/a J.W. Hunt & Co., a South Carolina General Partnership, Respondents.

Page 265

387 S.E.2d 265

300 S.C. 251

Karl A. FOLKENS, Robert H. Moore, and Douglas D. Cooke, as Executors of the Estate of M. Murray McLendon Jr., Appellants, v. J.W. HUNT, Jr., J.W. Hunt, R.L. Davis, W.R. Hunt, B.L Davis, P.R. Johnson, S.V. Smith and Michael S. Strange individually and d/b/a J.W. Hunt & Co., a South Carolina General Partnership, Respondents.

No. 23129.

Supreme Court of South Carolina.

Submitted March 21, 1989.

Decided Jan. 8, 1990.

Ronald E. Boston and Elbert S. Dorn of Turner, Padget, Graham & Laney, P.A., Columbia, R. Wayne Byrd of Turner, Padget, Graham & Laney, P.A., and Karl A. Folkens, Florence, for appellants.

Manton M. Grier, Kirkman Finlay, Jr., and Hamilton Osborne, Jr., of Sinkler & Boyd, P.A., Columbia, for respondents.

TOAL, Justice:

The dispositive issue in this case is whether the trial judge abused his discretion by invoking the thirteenth juror doctrine and granting the defendants' motion for a new trial absolute. We conclude that there was no abuse and, therefore, affirm.

PROCEDURAL BACKGROUND

M. Murray McLendon, Jr. originally brought this action against the partners of J.W. Hunt & Co. (Hunt), an accounting firm, alleging causes of action for accounting malpractice, fraud, intentional infliction of emotional distress and a violation of the S.C. Unfair Trade Practices Act. The circuit court granted summary judgment to Hunt on all causes of action. The Court of Appeals affirmed in part, reversed in part and remanded the case on the cause of action for accounting malpractice. Folkens v. Hunt, 290 S.C. 194, 348 S.E.2d 839 (Ct.App.1986). ¹

On remand, the case was tried before a jury. After deliberating for less than one hour, the jury returned a verdict in favor of the plaintiffs in the amount of $400,000 in actual damages and $1,000,000 punitive damages. Hunt moved for a new trial. The trial judge sitting as a thirteenth juror granted Hunt a new trial absolute. In his order, the judge stated that a judge may grant a new trial where he disapproves of the verdict on factual grounds, citing South carolina State Highway Dept. v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975), and where the verdict is contrary to law and instructions, citing Southeastern Mobile Homes, Inc. v. Walicki, 282 S.C. 298, 317 S.E.2d 773 (Ct.App.1984).

Folkens brought this appeal challenging the trial court's decision to grant a new trial. Permission was denied by this Court to argue that the thirteenth juror standard should be changed to require a trial court to provide specific findings or reasons when granting a new trial.

Therefore, the sole issue on appeal is whether the trial judge abused his discretion in granting Hunt's motion for a new trial. A brief version of the facts underlying this issue is set forth below. For a detailed discussion of the facts, see Folkens v. Hunt, 290 S.C. 194, 348 S.E.2d 839 (Ct.App.1986).

FACTUAL BACKGROUND

In 1976, M. Murray McLendon, Jr., and John G. Wellman formed a partnership, Shodon Properties, for the purposes of acquiring, farming and marketing real estate. Under the partnership agreement, capital In 1979, J.W. Hunt & Co. was retained to perform accounting services for the partnership. Specifically, the accountants were to prepare tax returns and allocate basis between land and timber for the purpose of calculating capital gains taxes. During his investigation of the partnership's records, Jim Hunt found that while Kelly Farms was listed in the general ledger, it was not listed on the list of partnership properties nor had it been deeded to Shodon Properties. Jim Hunt confronted McLendon and stated that McLendon had failed to make a contribution to the partnership and, therefore, was cheating Wellman and on his taxes.

                contributions were to be made in equal amounts.   Wellman contributed $310,000 in cash and McLendon contributed a tract of land containing approximately 400 acres known as Kelly Farms.   These contributions were entered as assets in the general ledger and each capital account was valued at $310,000
                

Thereafter, the Hunt firm contacted Wellman and stated that McLendon had not made a contribution to the partnership because legal title to Kelly Farms was never transferred. They recommended that Wellman withdraw his $310,000 contribution plus interest. After McLendon consulted with independent advisers, a letter agreement was executed by Wellman and McLendon providing for the distribution of funds to Wellman from the partnership account. Although the parties continued working together, their relationship deteriorated and the partnership was eventually dissolved.

At trial, McLendon claimed that the actions of the Hunt firm constituted accounting malpractice and that they caused McLendon to suffer great economic losses and emotional illness. As noted above, the jury returned a verdict in favor of McLendon and awarded $400,000 compensatory damages and $1,000,000 in punitive damages. Sitting as a thirteenth juror, the trial judge granted a new trial absolute.

DISCUSSION

Folkens contends that the trial court abused his discretion by invoking...