Lister v. NationsBank of Delaware, N.A.
| Decision Date | 05 November 1997 |
| Docket Number | No. 2754,2754 |
| Citation | 329 S.C. 133,494 S.E.2d 449 |
| Court | South Carolina Court of Appeals |
| Parties | Cynthia L. LISTER and Toney J. Lister, Respondents, v. NATIONSBANK of Delaware, N.A. and Avis Rent A Car Systems, Inc., Defendants, Of which Avis Rent A Car Systems, Inc. is Appellant. . Heard |
David L. Moore, Jr., of Love, Thornton, Arnold, & Thomason, Greenville, for appellant.
Roger L. Couch and John Hawkins, both of Lister, Couch Courtney, Spartanburg, for respondents.
In December of 1994, the Listers, their son, and Toney Lister's parents went on a cruise. When the ship docked for the day in Aruba, the Lister party rented a Mitsubishi sports utility vehicle from the local Avis agency. The Listers used their NationsBank Visa Gold Card to pay for the rental of the vehicle. The rental fee was eighty U.S. dollars. To indicate he wanted to purchase car insurance, Toney Lister initialed the rental contract next to a nine dollar fee. The credit card account was left open in order to include payment for gasoline when the car was returned.
After lunch, the Listers noticed the right rear tire was flat and took the car to a service station for repair. Shortly after leaving the service station, the Listers' son lost control of the vehicle and it flipped. According to the Listers, the accident was caused by the tire deflating again.
After the accident, Toney Lister returned to the Avis dealership. Willem Dunlock, the manager of the Avis dealership, would not let Lister close out his account unless he signed a Visa International Cardholder Assignment Form to pay for damages to the rental car. Because Dunlock told him insurance was available through the Gold Card, Lister modified the form to read:
I Lister, Toney Joe, hereby permit my Visa Card [number] to be charged for damages which occurred on or about 29/12/94, with regard to [contract number] should insurance be in effect thru said Visa card without reimbursement from cardholder. In signing this Cardholder Assignment Form, I submit that I am in agreement with these charges in the amount of $ unknown. (Modified language in bold).
Lister signed this modified assignment form because he believed the form was necessary for the Visa Gold Card insurance company to pay and he would not be personally responsible. Dunlock refused to close out the account with the modified form. At Dunlock's request, Cynthia Lister, Toney's wife, signed the charge statement to authorize the insurance. The Listers then returned to the ship for the voyage home.
On January 3, 1995, Dunlock faxed Lister a copy of the Visa credit slip, which indicated a charge of $80.00. The $9 fee for insurance was not included in that amount. Lister believed the credit card account had been closed out.
A few months later when the Listers were shopping in South Carolina, the Visa Gold Card was declined because they had exceeded the credit limit. Cynthia Lister called the credit card company and discovered $7,696.63 had been charged on April 20, 1995, by ASHA, N.V., for the wrecked vehicle. The Listers never authorized this charge on their credit card account. The Listers' attorney faxed Dunlock a letter demanding this charge be withdrawn immediately. In response, Dunlock wrote:
At the damages hearing, Avis argued Aruban law should apply. It submitted the affidavit of Roy Brown, an attorney in Aruba, who stated punitive damages are not recognized and, consequently, not awarded in Aruba. 3 This document was notarized by Maria Albertina Eman and stamped with Eman's official seal. The trial court disregarded this
affidavit, finding the affidavit was not admissible under Rule 902(3), SCRE, and was suspect because the court had no contempt powers over Brown or the notary.
I. Did the trial court err in refusing to consider the affidavit of Roy Brown regarding Aruban law on punitive damages?
II. Did the trial court err in applying South Carolina law in lieu of Aruban law when determining which law would control the imposition of punitive damages?
III. Did the trial court violate Avis' due process interests by failing to reduce the punitive damages award?
Avis argues the trial court erred in refusing to consider the affidavit of Roy Brown concerning Aruba's law on punitive damages. We agree.
The trial court found the affidavit was not admissible under Rule 902(3), SCRE. Rule 902 requires a document must be authenticated by extrinsic evidence as a condition of the document's admissibility unless certain exceptions apply. Rule 902(3) provides:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
...
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation....
The court held the affidavit was not admissible under the foreign public documents exception because the document was executed by a private attorney instead of by a government official. Avis contends the affidavit is not a foreign official record and Rule 902(3) is not relevant to its admission.
The trial court is correct the affidavit is not admissible as a foreign official document under Rule 902(3). However, the affidavit is admissible under Rule 902(8), which provides:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
...
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
Pursuant to the Uniform Recognition of Acknowledgments Act, notarial acts performed outside of South Carolina by a person authorized to perform notarial acts by the laws or regulations of a foreign country for use in this state have the same effect as if performed by a notary public of this state, as long as the official seal of the person performing the notarial act is affixed to the document. S.C.Code Ann. §§ 26-3-10 to -30 (Rev.1991). As a result, the Brown affidavit, which bore the Aruban notary seal of Eman, was admissible.
Moreover, pursuant to Rule 44(d), SCRCP, This rule is imbued with liberality and elasticity. The trial court is permitted to consider relevant materials even if they are not admissible. Furthermore, as the South Carolina Supreme Court explained in Rauton v. Pullman Co., 183 S.C. 495, 504, 191 S.E. 416, 420 (1937): "The interpretation given of the law of a foreign country, state, or territory by its tribunals is an integral and essential part of the law itself, and should be stated by the witness."
Thus, the trial court erred in disregarding Brown's affidavit concerning Aruban law on punitive damages. However, this error is harmless if South Carolina law applies.
Before determining choice of law, this Court must first decide if the cause of action for breach of contract accompanied by a fraudulent act is an action in contract or in tort. In Peeples v. Orkin Exterminating Co., 244 S.C. 173, 135 S.E.2d 845 (1964), the theory of breach of contract accompanied by a fraudulent act is identified as an action in contract:
An action for breach of contract accompanied by a fraudulent act is an action ex contractu, not ex delicto, Cain v. United Insurance Company of America, 232 S.C. 397, 102 S.E.2d 360; Ross v. American Income Life Insurance Company, 232 S.C. 433, 102 S.E.2d 743; however, it partakes of elements of both contract and tort.
Peeples, 244 S.C. at 178, 135 S.E.2d at 847. South Carolina has long recognized a plaintiff's right to recover punitive damages for breach of contract accompanied by a fraudulent act. Floyd v. Country Squire Mobile Homes, Inc., 287 S.C. 51, 336 S.E.2d 502 (Ct.App.198...
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