Freeman v. A. & M. Mobile Home Sales, Inc.

• Decision Date: 22 June 1987
• Docket Number: No. 1010,1010
• Citation: 293 S.C. 255,359 S.E.2d 532
• Court: South Carolina Court of Appeals
• Parties: Deborah K. FREEMAN, Respondent, v. A. & M. MOBILE HOME SALES, INC., Luann Croy and Commodore Financial, formerly known as J.K. Financial. Appeal of COMMODORE FINANCIAL. . Heard

Page 532

359 S.E.2d 532

293 S.C. 255

Deborah K. FREEMAN, Respondent, v. A. & M. MOBILE HOME SALES, INC., Luann Croy and Commodore

Financial, formerly known as J.K. Financial.

Appeal of COMMODORE FINANCIAL.

No. 1010.

Court of Appeals of South Carolina.

Heard June 22, 1987.

Decided Aug. 10, 1987.

Kermit S. King and Ronald M. Childress, of Childress & Mille, Columbia, for appellant.

W. Paul Culbertson and J. Michael Turner, Laurens, for respondent.

GOOLSBY, Judge:

This action by Deborah K. Freeman against the defendants, A. & M. Mobile Homes Sales, Inc., and Luann Croy, and against the appellant, Commodore Financial, formerly known as J.K. Financial, involves causes of action for fraud, violation of the South Carolina Unfair Trade Practices Act ("SCUTPA"), and violation of the South Carolina Consumer Protection Code ("SCCPC"). The jury, so far as relevant here, awarded Freeman $5,000 in actual damages against Commodore on each of these causes of action and $40,000 in punitive damages against Commodore on the fraud cause of action alone.

On Commodore's motion, the trial judge, as we interpret his order, reduced the amount of actual damages to $1,751 on each cause of action, leaving intact the punitive damages awarded on the fraud cause of action. On Freeman's motion, the trial judge, pursuant to the SCUTPA, trebled to $5,253 the actual damages awarded Freeman on the SCUTPA cause of action and awarded her a $1,000 statutory penalty under the SCCPC and $4,200 in attorney fees under both the SCUTPA and the SCCPC. The trial judge, however, limited Freeman's collection of actual damages from Commodore to the actual damages that he trebled pursuant to the SCUTPA.

Commodore's questions on appeal relate to the sufficiency of the evidence as to all three causes of action, to the propriety of the actual and punitive damages awarded by the jury, to the trial judge's failure to eliminate punitive damages altogether, to the trial judge's trebling of actual damages, to the trial judge's imposition of the statutory penalty, and to the trial judge's award of attorney fees.

We affirm.

Freeman's causes of action center around misrepresentations allegedly made by A. & M., Croy, and Commodore regarding documents to prove ownership of a mobile home advertised for sale by Croy, purchased by Freeman through A. & M., and financed and later repossessed by Commodore.

I.

By two exceptions, Nos. 1 and 2, Commodore questions the failure of the trial judge to grant its motion for "directed verdict" made "at the close of [Freeman's] case in chief as to the [s]econd and [f]ifth [c]auses of [a]ction." Freeman's second cause of action alleges a violation of the SCUTPA [see S.C.Code of Laws §§ 39-5-10 et seq. (1976) ] and her fifth cause of action alleges a violation of the SCCPC. Id. §§ 37-1-101 et seq. The question apparently embracing these two exceptions reads, "Was a motion for involuntary nonsuit improperly denied where plaintiff's testimony failed to establish essential elements of her causes of action?" This question is argued beneath a statement that declares, "The plaintiff presented no evidence to establish essential elements of fraud, unfair trade practice or violation of the consumer protection code."

Commodore made no motion for either a nonsuit or directed verdict as to Freeman's cause of action for fraud, although it did make a motion for directed verdict at the end of Freeman's case on Freeman's causes of action alleging violations of the SCUTPA and of the SCCPC. The trial court denied the motion and Commodore proceeded to introduce evidence. Commodore failed, however, to make a motion for directed verdict at the end of all the evidence as to any cause of action.

Commodore's failure to make a motion for directed verdict after all the evidence was in precludes our review of its exceptions questioning the sufficiency of the evidence to support Freeman's causes of action for fraud, violation of the SCUTPA, and violation of the SCCPC. See Evans v. Wabash Life Insurance Company, 247 S.C. 464, 148 S.E.2d 153 (1966) (appellate review of the sufficiency of the evidence is unavailable where the defendant's motion to strike made at the conclusion of the plaintiff's testimony was overruled, the defendant thereafter presented evidence, and the defendant did not renew its motion to strike and did not move for a directed verdict, even treating the motion to strike as the equivalent of a motion for nonsuit); McCown v. Muldrow, 91 S.C. 523, 540, 74 S.E. 386, 392 (1912) (" 'Where, on the trial of a civil action, the defendant at the close of the plaintiff's evidence moves for a verdict thereon in his favor, and on excepting to the decision of the court overruling such motion introduces evidence to support his grounds of defense, and rests without renewing the motion at the close of all the evidence, the exception is deemed to be waived and it is no longer a predicate for error in a reviewing court.' ").

We do not overlook that one of Commodore's post-trial motions was a motion for judgment notwithstanding the verdict. Before a motion for judgment notwithstanding the verdict can properly be made, however, a party must move for a directed verdict at the close of all the evidence. Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729 (1955), cert. denied, 349 U.S. 953, 75 S.Ct. 881, 99 L.Ed. 1277 (1955); S.C.R.CIV.P. 50(b); H. LIGHTSEY AND J. FLANAGAN, SOUTH CAROLINA CIVIL PROCEDURE at 377 (1985).

II.

Commodore next contends that the total amount awarded by the jury as actual damages on Freeman's causes of action for fraud, violation of the SCUTPA, and violation of the SCCPC is so excessive as to manifest caprice, passion, or prejudice and to warrant the granting of a new trial absolutely.

With the agreement of the parties, the trial judge informed the jury that the total amount spent by Freeman in connection with the "payments on the [mobile] home" purchased by Freeman through A. & M. came to $1,751.20. As we noted above, the jury awarded $5,000 in actual damages on the fraud cause of action, $5,000 in actual damages on the SCUTPA cause of action, and $5,000 in actual damages on the SCCPC cause of action, for a total award of $15,000 in actual damages.

After the jury rendered its verdicts, Commodore made no motion for Freeman to elect her remedy. See Harper v. Ethridge, 290 S.C. 112, 348 S.E.2d 374 (Ct.App.1986) (discussion of the doctrine of election of remedies). It did move the trial judge, however, to reduce the amount of the damages. The trial judge, as we also indicated, reduced the amount of actual damages on each cause of action to $1,751. His order allows Freeman to collect her actual damages but once. Freeman did not appeal this limitation.

When a verdict is so grossly excessive and the amount awarded is so shockingly disproportionate to the injuries as to indicate that the jury was motivated by passion, caprice, prejudice, or some other improper consideration, it becomes the duty of the appellate court, as well as the trial court, to set aside the verdict absolutely. Easler v. Hejaz Temple A...A...O...N...M...S...of Greenville, 285 S.C. 348, 329 S.E.2d 753 (1985); Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969). There is, however, no definite standard for determining whether actual damages awarded are grossly excessive. Beasley v. Ford Motor Company, 237 S.C. 506, 117 S.E.2d 863 (1961). The courts must be governed by the circumstances of the particular case presented for consideration. Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286 (1964). Generally, to warrant a new trial because of gross excessiveness of the verdict " 'the damages must be flagrantly outrageous and extravagant.' " Beasley v. Ford Motor Company, 237 S.C. at 512, 117 S.E.2d at 866, quoting Coleman v. Southwick, 9 Johns. 45, 6 Am.Dec. 253 at 258 (1812).

Freeman testified regarding expenses other than those represented by the payments that she made on the mobile home. She testified that she also paid the original owner of the mobile home $200; that she purchased money orders with which to make her mobile home payments; that she made several long distance telephone calls in failed attempts to resolve her dispute with Commodore; that she incurred moving expenses in anticipation of Commodore's threatened repossession of her mobile home; and that Commodore repossessed her mobile home.

At most, the amounts awarded Freeman as actual damages on her three causes of action, as the trial judge found, are excessive; however, these amounts are not so excessive or flagrantly outrageous that they, under the circumstances presented and when the causes of action are individually considered, evince or carry an implication of passion, caprice, prejudice, corruption, partiality, improper influences, or the like. Cf., e.g., Small v. Springs Industries, 292 S.C. 481, 357 S.E.2d 452 (1987) (wherein the court held a $300,000 award of actual damages in an action for breach of an employment contract to be so excessive as to manifest improper considerations where there was no evidence from which the jury could reasonably conclude that the plaintiff would be unable to find any employment for the remainder of her life).

The trial judge, therefore, committed no abuse of discretion amounting to an error of law in not granting Commodore a new trial outright because of the amounts of the actual damages found by the jury on three separate causes of action brought by Freeman. See Fennell v. Littlejohn, 240 S.C. 189, 125 S.E.2d 408 (1962) (wherein the court held that the granting of a new trial on the ground that the verdict is so excessive as to indicate caprice, passion, or prejudice on the part of the jury is in the discretion of the trial judge and that the trial judge's decision thereon will not be disturbed absent a showing of an abuse of discretion).

III.

Commodore further contends that the trial judge erred in not granting it a new trial absolutely because...