May v. Hopkinson

• Decision Date: 24 March 1986
• Docket Number: No. 0760,0760
• Parties: Brenda L. MAY and John May, Appellants-Respondents, v. Evelyn W. HOPKINSON, John M. Hutcherson, d/b/a Mt. Pleasant Exterminating Co., and C.R. Aydlette, Defendants, of whom Evelyn W. Hopkinson is Respondent-Appellant, and C.R. Aydlette is Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 508

347 S.E.2d 508

289 S.C. 549

Brenda L. MAY and John May, Appellants-Respondents, v. Evelyn W. HOPKINSON, John M. Hutcherson, d/b/a Mt. Pleasant Exterminating Co., and C.R. Aydlette, Defendants of whom Evelyn W. Hopkinson is Respondent-Appellant and C.R. Aydlette is Respondent.

No. 0760.

Court of Appeals of South Carolina.

Heard March 24, 1986.

Decided July 28, 1986.

A. Arthur Rosenblum, Charleston, for appellants-respondents.

G. Trenholm Walker and W. Jefferson Leath, Jr., Charleston and Robert R. Horger, Orangeburg, for respondent-appellant.

GOOLSBY, Judge:

These appeals involve an action for fraud brought by the plaintiffs Brenda and John May against the defendants Evelyn W. Hopkinson, John M. Hutcherson, doing business as Mt. Pleasant Exterminating Company, and C.R. Aydlette. Hutcherson no longer is in the case, having settled with the Mays during the pendency of these appeals. The dispositive question concerns whether the evidence reasonably supports the conclusion that the defendants Hopkinson and Aydlette defrauded the Mays.

The complaint alleges Hopkinson, Hutcherson, and Aydlette defrauded the Mays by concealing moisture and termite damage to a house purchased by the Mays. ¹ Hopkinson allegedly owned the house. Hutcherson allegedly inspected the house for termites and other damage. Aydlette, a real estate agent, allegedly assisted in the sale and closing of the house.

The parties referred the action to the Master of Charleston County pursuant to Section 15-31-10 of the South Carolina Code of Laws (1976), a statute since repealed. See 1985 Act No. 100 § 2 at 279. They agreed the master could enter a final judgment but did not agree that an appeal would lie anywhere other than to the Circuit Court. See South Carolina Code of Laws § 14-11-90(6) (1976) (Cum.Supp.1985).

Following a three-day trial, the master found that the Mays had established their cause of action by clear, cogent, and convincing evidence. He expressly found that Hopkinson, Hutcherson, and Aydlette had "tacitly agreed among themselves to withhold from the Mays the fact that there was severe ... moisture and termite damage to the house." The master rendered judgment against all three defendants in the amount of $30,000 actual damages and $60,000 punitive damages.

Each defendant appealed to the Circuit Court.

The Circuit Court found no evidence to support the conclusion that Aydlette and Hutcherson had defrauded the Mays in the sale of Hopkinson's house but did find Hopkinson had defrauded the Mays. It also reduced the actual damages to $25,430 and the punitive damages to $20,000.

Both the Mays and Hopkinson appeal. Aydlette includes additional sustaining grounds.

I.

A.

Before addressing the dispositive issue, we feel we should deal first with the more fundamental question raised by the Mays concerning the scope of review that the Circuit Court was required to apply in this instance and, according to the Mays, did not apply.

The Mays maintain that, although the Circuit Court recognized the proper scope of review applicable to its review of the defendants' respective appeals, the Circuit Court nonetheless treated the proceedings as a review of a report submitted by the master rather than as an appeal from the final judgment entered by the master.

Section 14-11-90(6) first appeared in 1979 with the enactment of Act No. 164. See 1979 Act No. 164 § 10 at 326-27. It provides:

Final orders based on reports of masters shall be executed by circuit judges except where the master enters final judgment pursuant to provisions of § 15-31-10. Appeals from final judgments entered by a master pursuant to § 15-31-10 shall be to the [C]ircuit [C]ourt unless otherwise directed by order of the [C]ircuit [C]ourt or by consent of the parties.

Neither Act No. 164 nor any other statute prescribes the scope of review that the Circuit Court is to apply in cases appealed to the Circuit Court from final judgments entered by masters. Cf. South Carolina Code of Laws § 18-7-170 (1976) (a statute that authorizes the Circuit Court upon entertaining an appeal from a judgment obtained in a magistrate's court to "reverse ... for errors of ... fact"); Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 312 S.E.2d 20 (Ct.App.1984) (the Circuit Court on appeal may reverse a judgment rendered in a magistrate's court for errors of fact).

This, of course, is a law case. See Turner v. Carey, 227 S.C. 298, 305, 87 S.E.2d 871, 874 (1955). Although our research discloses several cases that refer to the scope of review which the Circuit Court is to employ when reviewing a master's or referee's report in a law case [ see Peddler, Inc. v. Rikard, 266 S.C. 28, 221 S.E.2d 115 (1975); Moore v. Crowley and Associates, Inc., 254 S.C. 170, 174 S.E.2d 340 (1970); Sumter Electric Rewinding Co. v. Aiken County S.C. Clays, Inc., 230 S.C. 229, 95 S.E.2d 259 (1956); Gregory v. Cohen & Sons, 50 S.C. 502, 27 S.E. 920 (1897) ], none refers to the scope of review the Circuit Court is to use when determining an appeal from a master's or referee's final judgment in a law case.

When the parties permit a master or referee to enter a final judgment in the cause and a party thereafter appeals from the judgment entered by the master or referee, we know of no reason why the scope of review to be applied by the reviewing court should depend upon which appellate court is to determine the appeal. The scope of review, we think, should be the same, irrespective of whether the appeal is to the Circuit Court, the Court of Appeals or the Supreme Court. "It would make the practice uniform and symmetrical, and would conform to the intent of [the] parties in selecting their own mode of trial and [appellate review]." Meetze v. Charlotte, Columbia & Augusta Railroad Co., 23 S.C. 1, 15 (1884) (Simpson, C.J., dissenting).

We therefore hold that, in the absence of statute prescribing a different scope of review [see S.C. Const. Art. V § 7 (1895) ], the Circuit Court is to apply the same scope of review that either the Court of Appeals or the Supreme Court would apply when entertaining an appeal from a final judgment entered by a master or referee. Because this case involves an appeal of a law case tried without a jury, the findings of fact of the trial judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976); see also Fox v. Munnerlyn, 283 S.C. 490, 323 S.E.2d 68 (Ct.App.1984).

We are required in reviewing this appeal, then, to look at the master's findings of fact to determine the underlying question raised by all parties, which is whether any evidence reasonably supports the conclusion that Hopkinson and Aydlette defrauded the Mays.

B.

The master's view of the facts immediately follows.

In early 1981, Hopkinson listed for sale a house she owned at 1129 DeLeisseline Boulevard in Mt. Pleasant, South Carolina. She listed it with Howell & Associates. Hopkinson advised Howell & Associates she wanted only its limited partner Aydlette to handle the transaction. Aydlette lived near Hopkinson.

Several months before she listed her house for sale, Hopkinson learned that its exterior wood had been extensively damaged by moisture. Charles Blanchard, a contractor, looked at the house and advised her of the serious nature of the problem. He also told her that there was probably structural damage present.

Thereafter, Hopkinson had someone caulk, patch, and paint the rotten areas about the exterior of the house. This work effectively covered the rot so that it could not be detected without close inspection.

The Mays learned of Hopkinson's house through Howell & Associates. They visited the house a number of times and walked through and around it. Hopkinson told them that the house had no problems other than a crack in the kitchen vinyl and a fogged window in the den.

In May, 1981, the Mays contracted with Hopkinson to purchase the house for $135,000. Hopkinson agreed to give the Mays a credit for the costs needed to repair the kitchen floor and the den window.

One provision of the contract called for a termite inspection. On more than one occasion before closing, John May requested that Aydlette contact C.D. Ledford to perform the inspection. Aydlette assured John May that Ledford would be obtained for this service. Aydlette, however, did not contact Ledford. Rather, he and Hopkinson got Hutcherson, an operator of an exterminating service in Mt. Pleasant, to inspect the house.

Hutcherson subsequently produced a wood infestation report. It noted the presence of subterranean termites and light fungi and stated the termites had been treated. Although the report also stated there was no other damage, severe sill and joist damage was easily apparent to any inspector.

Aydlette obtained two repair estimates from the same contractor for the den window. One estimate contained the warning that it did not include repairs to "structural damage." The other made no reference to structural damage. At the closing, Aydlette showed the Mays only the estimate that omitted reference to structural damage.

Also at the closing, the Mays were told for the first time that Ledford had not made the wood infestation inspection. Aydlette, in Hopkinson's presence, told the Mays that Ledford had not been available. He assured the Mays, however, that Hutcherson was bonded and credible. Aydlette further assured them that the house was structurally sound and had no problems.

The Mays completed the closing; however, they would not have done so if they had known the true condition of the house.

Soon after the closing, the Mays discovered the rotten weatherboard and the structural damage beneath the house.

Our review of the record convinces us that the master's findings of fact have evidentiary support and we so hold. We note that the master, in making his...