Jenkins v. Few, No. 4763.

CourtCourt of Appeals of South Carolina
Writing for the CourtLOCKEMY, J.
Citation705 S.E.2d 457,391 S.C. 209
PartiesKenneth B. JENKINS, Respondent,v.Benjamin Scott FEW and Few Farms, Inc., Appellants.
Decision Date28 February 2011
Docket NumberNo. 4763.

391 S.C. 209
705 S.E.2d 457

Kenneth B. JENKINS, Respondent,
v.
Benjamin Scott FEW and Few Farms, Inc., Appellants.

No. 4763.

Court of Appeals of South Carolina.

Heard June 22, 2010.Decided Dec. 8, 2010.Rehearing Denied Feb. 28, 2011.


[705 S.E.2d 459]

J. Falkner Wilkes, Jr., and Robert Clyde Childs, III, of Greenville, for Appellants.

[705 S.E.2d 460]

Fred W. Suggs, III, of Greenville, for Respondent.LOCKEMY, J.

[391 S.C. 214] In this tort action, a jury found Benjamin Scott Few and Few Farms, Inc. (collectively “Few”) liable to Kenneth B. Jenkins for damage to his fertilizer truck and lost profits. On appeal, Few maintains the trial court erred by failing to grant his motions for a directed verdict and in qualifying an expert witness. Few also contends the trial court erred by declining to reduce actual and punitive damages. We affirm in part and reverse in part.

FACTS

Few and Jenkins are competitors in the fertilizer and lime spreading business. Jenkins had reason to believe Few hired two individuals to place sugar in the gas tank of his Ford F–700 fertilizer truck on two separate occasions for the purpose of interfering with his business. Consequently, Jenkins brought suit against Few alleging trespass, conversion, civil [391 S.C. 215] conspiracy, and violation of South Carolina's Unfair Trade Practices Act.1

At trial, two witnesses testified Few asked them to sabotage Jenkins's fertilizer truck. The first witness, Buford Stokes, a friend of Few's, testified Few called him and asked whether putting sugar or metal filings into a gas tank would cause more damage to a truck. After Stokes replied that he understood sugar would do the most damage, Few expressed his desire to destroy a competitor's fertilizer business.

The second witness, Johnny Lindsey, testified Few also telephoned him about putting sugar in a gas tank. According to Lindsey, during their conversation Few indicated he wanted to place sugar in the gas tank of Jenkins's fertilizer truck. Lindsey initially declined to help Few and handed the phone to a friend, Billy Guest, who made arrangements to sabotage Jenkins's truck for Few. The pair met with Few and acquired the sugar. Later, Guest put the sugar in the gas tank of Jenkins's truck while Lindsey waited in the get-a-way car.

Lindsey explained Few paid him $100 for his part in the sabotage of Jenkins's truck. After learning Jenkins's truck was still operable, Few called Lindsey again and asked him to sabotage the truck a second time. This time Lindsey put five pounds of sugar into a gas can and poured it into Jenkins's truck for another $100. Eventually, Lindsey turned himself in to the police and pled guilty to malicious damage for his role in sabotaging Jenkins's fertilizer truck. Lindsey was ordered to pay Jenkins $220 in restitution.

After learning Jenkins's truck was sabotaged, Stokes explained he met with Jenkins and told him about his conversation with Few. According to Stokes, Few called him after he met with Jenkins and threatened him. Few denied contacting Stokes or Lindsey regarding sabotaging Jenkins's truck and denied any involvement in interfering with Jenkins's fertilizer business.

At the end of Jenkins's case, Few moved for a directed verdict on civil conspiracy and conversion. The trial court denied Few's motions and after the close of Few's case, charged the jury on unfair trade practices, conversion, civil [391 S.C. 216] conspiracy, and trespass. The jury found in favor of Jenkins on trespass, conversion, and civil conspiracy. The jury found in favor of Few on the unfair trade practices claim. On a general verdict form, the jury awarded Jenkins $28,000 in actual damages and $100,000 in punitive damages. After the verdict was published, Few moved for (1) a new trial absolute on trespass of personal property, conversion, and civil conspiracy and (2) a new trial nisi remittitur on actual damages. Few also sought a post verdict review of the punitive damages award. The trial court denied both motions and declined to set aside or modify the punitive damages award. This appeal followed.

ISSUES ON APPEAL

1. Did the trial court err in denying Few's motion for a directed verdict on civil conspiracy?

[705 S.E.2d 461]

2. Did the trial court err in denying Few's motion for a directed verdict on conversion?

3. Did the trial court err in declining to exclude Stokes as a witness and qualifying Stokes as an expert?

4. Did the trial court err in declining to reduce the jury's award of actual damages?

5. Did the trial court err in finding the jury's punitive damages award comported with due process?

LAW/ANALYSIS
I. Directed Verdict Issues
A. Standard of Review

In reviewing the denial of a directed verdict motion, this court employs the same standard as the trial court: we view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Welch v. Epstein, 342 S.C. 279, 299–300, 536 S.E.2d 408, 418 (Ct.App.2000). “This [c]ourt will reverse the trial court only when there is no evidence to support the ruling below.” Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999).

[391 S.C. 217] B. Civil Conspiracy

Few argues the trial court erred in denying his motion for a directed verdict on civil conspiracy because Jenkins failed to demonstrate damages beyond those alleged in other causes of action. We disagree.

“The tort of civil conspiracy has three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, and (3) causing plaintiff special damage.” Hackworth v. Greywood at Hammett LLC, 385 S.C. 110, 115, 682 S.E.2d 871, 874 (Ct.App.2009). “[T]he gravamen of the tort is the damage resulting to plaintiff from an overt act done pursuant to a common design.” Id. “Because the quiddity of a civil conspiracy claim is the damage resulting to the plaintiff, the damages alleged must go beyond the damages alleged in other causes of action.” Pye v. Estate of Fox, 369 S.C. 555, 568, 633 S.E.2d 505, 511 (2006).

In his complaint, Jenkins alleged special damages from the civil conspiracy as “including, but not limited to, the destruction of [his fertilizer truck], and the loss of revenue for the nine days which [he] could not operate his business.” Jenkins did not allege lost profits in regard to any other cause of action. At trial, Jenkins testified, without objection, that he could not operate his spreading business for 8.16 days and lost $5,891 in profits. Additionally, Jenkins explained he incurred $2,035 in costs related to offering and paying a reward for information leading to the parties responsible for sabotaging his truck. We conclude evidence supports the trial court's ruling that Jenkins alleged and demonstrated special damages. Accordingly, the trial court properly denied Few's motion for a directed verdict on civil conspiracy.

C. Conversion

Few argues the trial court erred in denying his motion for a directed verdict on conversion because the record contains no evidence he wrongfully assumed and exercised the right of ownership over Jenkins's fertilizer truck. We agree.

Conversion is the “unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the exclusion of the owner's rights.” [391 S.C. 218] Owens v. Andrews Bank & Trust Co., 265 S.C. 490, 496, 220 S.E.2d 116, 119 (1975). “Conversion may arise by some illegal use or misuse, or by illegal detention of another's chattel.” Id.

Here, the record reveals no evidence Few wrongfully assumed and exercised the right of ownership over Jenkins's fertilizer truck. Jenkins argues the damage to his truck so altered its condition that Few wrongfully assumed and exercised the right of ownership.2

[705 S.E.2d 462]

However, Jenkins cites no South Carolina authority in support of this proposition. Instead, Jenkins points to his testimony Few “took control” of the truck by sabotaging it and that Few “took possession of [his] truck” because he could not use it after sugar was placed in the gas tank. These statements indicate Few interfered with the truck, not that he wrongfully assumed and exercised the right of ownership over the truck. Because Jenkins presented no evidence Few wrongfully assumed and exercised the right of ownership or illegally used or misused the truck, we find the trial court erred in denying Few's motion for a directed verdict on conversion.

II. Expert Witness

Few argues the trial court erred in allowing Stokes to testify as an expert witness because he lacked the necessary qualifications and Few was not provided with notice Jenkins intended to call Stokes as an expert. We disagree.

Generally, “[t]he admission or exclusion of evidence is a matter within the sound discretion of the trial court and absent clear abuse, will not be disturbed on appeal.” Gamble v. Int'l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996). Also, “[w]here a party fails timely to...

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15 practice notes
  • Jolly v. Gen. Elec. Co., 5858
    • United States
    • Court of Appeals of South Carolina
    • 1 Septiembre 2021
    ...a verdict is prohibited in the absence of a special verdict form. In support of this proposition, Appellants cite to Jenkins v. Few, 391 S.C. 209, 705 S.E.2d 457 (Ct. App. 2010) and Moore v. Moore, 360 S.C. 241, 257, 599 S.E.2d 467, 475 (Ct. App. 2004). In Jenkins, the appellant argued that......
  • Keene v. CNA Holdings, LLC, Appellate Case No. 2016-000227
    • United States
    • Court of Appeals of South Carolina
    • 13 Febrero 2019
    ...award to the plaintiff in a fraud action was not grossly excessive and was consistent with those of comparable cases); Jenkins v. Few , 391 S.C. 209, 224, 705 S.E.2d 457, 465 (Ct. App. 2010) (holding that the 3.6 to 1 ratio of punitive damages to actual damages awarded was "within the range......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • 8 Diciembre 2021
    ...to the opposing party. Id. at 506-07, 662 S.E.2d at 613 (quoting Jumper, 348 S.C. at 152, 558 S.E.2d at 916)); see also Jenkins v. Few, 391 S.C. 209, 219, 705 S.E.2d 457, 462 (Ct. App. 2010) ("Before excluding a witness as a sanction for violating the continuing duty to disclose information......
  • Busillo v. City of N. Charleston, Appellate Case No. 2012–206986.
    • United States
    • Court of Appeals of South Carolina
    • 3 Julio 2013
    ...hearing a basis for finding that Busillo's alleged failure to answer required Troy's testimony to be excluded. 3.See Jenkins v. Few, 391 S.C. 209, 219, 705 S.E.2d 457, 462 (Ct.App.2010) (discussing factors a trial court should consider before excluding a witness not named in discovery). 4. ......
  • Request a trial to view additional results
16 cases
  • Jolly v. Gen. Elec. Co., 5858
    • United States
    • Court of Appeals of South Carolina
    • 1 Septiembre 2021
    ...a verdict is prohibited in the absence of a special verdict form. In support of this proposition, Appellants cite to Jenkins v. Few, 391 S.C. 209, 705 S.E.2d 457 (Ct. App. 2010) and Moore v. Moore, 360 S.C. 241, 257, 599 S.E.2d 467, 475 (Ct. App. 2004). In Jenkins, the appellant argued that......
  • Jolly v. Gen. Elec. Co., Appellate Case No. 2017-002611
    • United States
    • Court of Appeals of South Carolina
    • 1 Septiembre 2021
    ...a verdict is prohibited in the absence of a special verdict form. In support of this proposition, Appellants cite to Jenkins v. Few , 391 S.C. 209, 705 S.E.2d 457 (Ct. App. 2010) and Moore v. Moore , 360 S.C. 241, 257, 599 S.E.2d 467, 475 (Ct. App. 2004). In Jenkins , the appellant argued t......
  • Keene v. CNA Holdings, LLC, Appellate Case No. 2016-000227
    • United States
    • Court of Appeals of South Carolina
    • 13 Febrero 2019
    ...award to the plaintiff in a fraud action was not grossly excessive and was consistent with those of comparable cases); Jenkins v. Few , 391 S.C. 209, 224, 705 S.E.2d 457, 465 (Ct. App. 2010) (holding that the 3.6 to 1 ratio of punitive damages to actual damages awarded was "within the range......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • 8 Diciembre 2021
    ...to the opposing party. Id. at 506-07, 662 S.E.2d at 613 (quoting Jumper, 348 S.C. at 152, 558 S.E.2d at 916)); see also Jenkins v. Few, 391 S.C. 209, 219, 705 S.E.2d 457, 462 (Ct. App. 2010) ("Before excluding a witness as a sanction for violating the continuing duty to disclose information......
  • Request a trial to view additional results

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