Pelican Bldg. Centers of Horry-Georgetown, Inc. v. Dutton

• Decision Date: 21 January 1992
• Docket Number: HORRY-GEORGETOW,INC,No. 23815,23815
• Parties: PELICAN BUILDING CENTERS OF, d/b/a Myrtle Beach Lumber Company, Inc., Plaintiff, v. Willie B. DUTTON, Southern National Bank of South Carolina, C.E. Rowell, d/b/a C.E. Rowell Construction Company, and Tysinger Electric Company, Defendants; and Willie B. DUTTON, Plaintiff, v. C.E. ROWELL, individually and d/b/a C.E. Rowell Construction Company, Defendant, v. PELICAN BUILDING CENTERS OF, d/b/a Myrtle Beach Lumber Company, Inc., Southern National Bank of South Carolina, and Tysinger Electric Company, Third-Party Defendants, of whom C.E. Rowell, individually and d/b/a C.E. Rowell Construction Company is Respondent/Appellant, and Willie B. Dutton is Appellant/Respondent. . Heard
• Court: South Carolina Supreme Court

Page 673

427 S.E.2d 673

311 S.C. 56

PELICAN BUILDING CENTERS OF HORRY-GEORGETOWN, INC., d/b/a

Myrtle Beach Lumber Company, Inc., Plaintiff, v. Willie B. DUTTON, Southern National Bank of South Carolina,

C.E. Rowell, d/b/a C.E. Rowell Construction

Company, and Tysinger Electric Company, Defendants;

and

Willie B. DUTTON, Plaintiff, v. C.E. ROWELL, individually and d/b/a C.E. Rowell Construction

Company, Defendant, v. PELICAN BUILDING CENTERS OF HORRY-GEORGETOWN, INC., d/b/a

Myrtle Beach Lumber Company, Inc., Southern

National Bank of South Carolina, and

Tysinger Electric Company,

Third-Party Defendants,

of whom C.E. Rowell, individually and d/b/a C.E. Rowell

Construction Company is Respondent/Appellant,

and Willie B. Dutton is Appellant/Respondent.

No. 23815.

Supreme Court of South Carolina.

Heard Jan. 21, 1992.

Decided Feb. 22, 1993.

Willard D. Hanna, Jr., and V. Lee Moore, of Harris & Hanna, P.A., Surfside Beach, for appellant/respondent.

Steven H. John, North Myrtle Beach, for respondent/appellant.

FINNEY, Justice:

Appellant/Respondent Willie B. Dutton appeals the order of the circuit court which granted respondent/appellant C.E. Rowell a new trial nisi additur, or in the alternative, a new trial on the issue of damages only. We reverse.

This controversy arose out of a March 1989 oral agreement between Dutton and Rowell. Rowell, the builder, previously had built a home for his daughter. He showed pictures of the home to the Duttons. They asked Rowell to build them a house like it, and Rowell agreed. Building commenced based on the parties' oral agreement. Dutton alleges Rowell agreed to construct a house for Dutton to contain 1,600 feet when complete at a cost not to exceed $45,000. When completed, the house contained approximately 1,800 square feet, and Dutton had paid $46,451. Dutton refused to pay the additional sum of $19,332.73 Rowell claimed Dutton owed for labor and materials, and in October of 1989, Rowell filed a mechanic's lien against Dutton's property.

By complaint dated December 28, 1989, Dutton instituted suit against Rowell alleging fraud and breach of contract accompanied by fraudulent acts, sought actual damages of $1,451 plus prejudgment interest and punitive damages, and requested a jury trial. Rowell answered by way of general denial and asserted counterclaims for collection and foreclosure of his mechanic's lien in the amount of $19,332.73. Rowell made Southern National Bank of South Carolina a party defendant as a result of its mortgage on the subject property. Pelican Building Centers of Horry-Georgetown, Inc., d/b/a Myrtle Beach Lumber Company, Inc., (Pelican) was made a party by virtue of its mechanic's lien of October 11, 1989, filed against Dutton and the subject property. Due to its notice and certificate of mechanic's lien filed August 22, 1989, Tysinger Electric Company was also made a party defendant.

Pelican's action for mechanic's lien was consolidated with this action prior to trial. All parties agreed to be bound by the disposition of the action between Dutton and Rowell.

The precise terms of the oral contract were hotly disputed by the parties at trial. The Duttons testified that Rowell had agreed to build the house for a set price of $45,000. They maintained this price covered the entire house as it eventually was built. Rowell, on the other hand, testified the parties had determined no set amount. He maintained the understanding was that the Duttons would pay for the costs of the structure once completed, plus labor costs. Rowell also testified the Duttons agreed to assist with the construction and be responsible for the well, septic tank, and preparing the site for building. Additionally, Rowell maintained the Duttons made numerous modifications once the building had begun. Both parties submitted corroborating evidence to support their claims. Rowell submitted several invoices for building materials. He admitted at trial, however, several of the invoices included items not used in the Duttons' house.

The jury found in favor of Rowell but awarded him only $3,427 on his counterclaim. Pursuant to Rule 59, SCRCP, Rowell immediately moved for a new trial nisi additur in the range of $17,204.06 to $18,677.00 based upon evidence adduced during the trial. The trial judge orally granted a new trial nisi additur in the amount of $10,004.06. The trial court's subsequent written order granted a new trial nisi additur of $10,004.06 or, in the alternative, a new trial on the issue of damages only. The court found that the 240 square foot error, at a cost of $30 per square foot, would reduce Rowell's recovery by the sum of $7,200. The trial court's additur of $10,004.06 represented the lower of the two amounts claimed by Rowell in his motion, less $7,200 deducted for the square footage in excess of 1,600 square feet.

The trial court's written order dated October 16, 1990, provided that unless Dutton accepted the additur within ten days of the order, Rowell would be entitled to a new trial on the issue of damages only. Relying upon Industrial Welding Supplies v. Atlas Vending Co., 276 S.C. 196, 277 S.E.2d 885 (1981); Jones v. Ingles Supermarkets, Inc., 293 S.C. 490, 361 S.E.2d 775 (Ct.App.1987); and Chiappetta v. Orr, 293 S.C. 250, 359 S.E.2d 530 (Ct.App.1987), the trial judge concluded that the best interests of justice and judicial economy would be served by a new trial only on the issue of damages. Dutton appeals, contending the trial court erred in the following particulars:

I. In granting a new trial nisi additur in an amount outside the range requested by the respondent;

II. In issuing a written order not in conformity with its previous oral order;

III. In granting a new trial nisi additur; and

IV. By granting, in the alternative, a new trial on the issue of damages only.

To support his contention that the relief granted was improper, the appellant cites Coogler v. California Ins. Co., 192 S.C. 54, 5 S.E.2d 459, 460 (1939), in which the Court held that a movant should be restricted to the relief requested in his motion. We hold that Coogler is not controlling under the factual scheme here in that the rule in Coogler...