Key Co., Inc. v. Fameco Distributors, Inc., 0947
| Decision Date | 25 March 1987 |
| Docket Number | No. 0947,0947 |
| Citation | 292 S.C. 524,357 S.E.2d 476 |
| Parties | The KEY COMPANY, INC., d/b/a Great Games, Respondent, v. FAMECO DISTRIBUTORS, INC., Appellant. . Heard |
| Court | South Carolina Court of Appeals |
B. Michael Brackett, of Sherrill & Townsend, Columbia, for appellant.
Jean Perrin Derrick, Lexington, for respondent.
The Key Company, Inc., doing business as Great Games, brought an action against Fameco Distributors, Inc., alleging Fameco violated the South Carolina Unfair Trade Practices Act (UTPA). The jury awarded Great Games actual damages in the amount of $8,000. On motion by Great Games, the trial judge trebled the damages and awarded Great Games attorney fees and costs. Fameco appeals the denial of its motions for directed verdict, judgment notwithstanding the verdict, and new trial. We reverse.
The dispositive issue is whether Fameco's breach of its contract with Great Games violates the UTPA. See S.C. Code of Laws §§ 39-5-10 et seq. (1976). In deciding this issue, we view the evidence, as we must, in the light most favorable to Great Games, the party resisting the motions. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App.1986).
Great Games owns coin-operated video game machines. Fameco agreed that for an eighteen-month period beginning on August 16, 1983, Great Games could place six of its machines at The Fame, a nightclub operated by Fameco on Two Notch Road in Columbia. The parties agreed to divide the proceeds of the machines equally.
Five months into the contract Great Games began receiving frequent complaints from The Fame about its machines. Later investigation revealed that the machines were simply disconnected in many instances. Jimmy Martin of Great Games asked The Fame's manager, a Mr. Abassi, not to disconnect the machines, explaining that "neither of us could make any money with the machines being unplugged."
Fameco, however, continued to leave some machines disconnected. In addition, Fameco moved the machines to less visible locations within the nightclub. As a consequence of these actions, Great Games lost income.
In April, 1984, Fameco requested Great Games to remove its machines from its nightclub. Great Games did so a month later after it determined that Fameco had breached the contract by continuing to disconnect the machines and to display them in undesirable locations.
Another owner of coin-operated video game machines moved machines into The Fame in June.
Great Games then instituted the present action. Its complaint alleges that Fameco's actions in disconnecting the machines and moving them to less desirable locations within the nightclub and in deliberately breaching the contract between the parties were "unfair and deceptive acts and practices committed by [Fameco] in the course and conduct of its business and trade" and that these acts constitute a violation of the UTPA. Great Games' complaint does not allege that Fameco engaged in unfair methods of competition. Great Games stipulated that its complaint alleged only a single cause of action, a violation of the UTPA.
Fameco argues, among other things, that a mere breach of a contract does not constitute a violation of the UTPA. We agree.
The UTPA declares unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... ." S.C.Code of Laws § 39-5-20(a) (1976). The terms "trade" and "commerce" include the "sale or distribution of any services and any property ... directly or indirectly affecting the people of this State." Id. § 39-5-10(b); see Noack Enterprises, Inc. v. Country Corner Interiors of Hilton Head Island, Inc., 290 S.C. 475, 351 S.E.2d 347 (Ct.App.1986) ().
Basically, Great Games' cause of action amounts to nothing more than an assertion that Fameco refused to allow, as it contracted to do, Great Games to make effective use of The Fame's premises for the display and operation of Great Games' coin-operated video game machines. As thus defined, the cause of action does not involve practices that either directly or indirectly affected the rights of anyone but the contracting parties.
We therefore hold that Fameco's deliberate or intentional refusal to permit Great Games to utilize the premises of its nightclub for the effective display and operation of Great Games' machines in breach of its contract with Great Games, without more, does not constitute a violation of the UTPA. See ...
To continue reading
Request your trial
-
Bessinger v. Food Lion, Inc.
...Act." Columbia E. Assoc. v. Bi-Lo, Inc., 299 S.C. 515, 386 S.E.2d 259, 263 (S.C.Ct.App.1989) (citing Key Co. v. Fameco Distributors, Inc., 292 S.C. 524, 357 S.E.2d 476, 478 (App.1987)); and conduct that affects only parties to the transaction provides no basis for a SCUTPA claim, Jefferies ......
-
Blanton Enterprises, Inc. v. Burger King Corp.
...Properties, 810 F.2d 1282, 1287 (4th Cir. 1987) (UTPA requires more than breach of written contract.); Key Co. v. Fameco Distributors, Inc., 292 S.C. 524, 357 S.E.2d 476 (Ct.App.1987) (no UTPA violation for breach of oral contract where only contracting parties are affected). Section 39-5-2......
-
Liberty Mut. Ins. v. Employee Resource Management
...such as Noack Enterprises, Inc. v. Country Corner Interiors, 290 S.C. 475, 351 S.E.2d 347 (1986) and Key Co., Inc. v. Fameco Distributors, 292 S.C. 524, 357 S.E.2d 476 (1987). If a dispute between non-competing businesses or commercial entities were not within the UTPA's scope, the court wo......
-
Toney v. LaSalle Bank Nat'l Ass'n
...Conduct which only affects the parties to the transaction provides no basis for a SCUTPA claim. See Key Co. v. Fameco Distribs., Inc., 292 S.C. 524, 357 S.E.2d 476 (S.C.Ct.App.1987).d. Gross Negligence Plaintiff appears to allege that Defendants were grossly negligent in failing to provide ......