Rrr, Inc. v. Toggas

• Decision Date: 23 April 2008
• Docket Number: No. 4375.,4375.
• Citation: Rrr, Inc. v. Toggas, 662 S.E.2d 438, 378 S.C. 174 (S.C. App. 2008)
• Court: South Carolina Court of Appeals
• Parties: RRR, INC., Respondent, v. Thomas M. TOGGAS and Katherine Toggas, Appellants.

662 S.E.2d 438

378 S.C. 174

RRR, INC., Respondent, v. Thomas M. TOGGAS and Katherine Toggas, Appellants.

No. 4375.

Court of Appeals of South Carolina.

Submitted February 1, 2008.

Decided April 23, 2008.

Rehearing Denied June 26, 2008.

David B. Marvel, and Andrew W. Countryman, both of Charleston, for Appellants.

Otto W. Ferrene, Jr., of Hilton Head Island, for Respondent.

HEARN, C.J.

Thomas M. Toggas and Katherine Toggas (Appellants) appeal the circuit court's order denying their motion to alter, amend or vacate judgment, and instead affirming the findings of the jury. We affirm.¹

FACTS

Appellants contracted with RRR, Inc., to rent their beachfront condo on Hilton Head, South Carolina to guests. The contract provided for the rental commission, costs of cleaning and maintenance to be deducted from the gross rental funds, and that Appellants would be responsible for any damages arising from bookings made by RRR that were not honored. RRR booked Appellants' condo during the busy weeks of the Family Circle Tennis Tournament and the MCI Heritage Golf Tournament, which were held in consecutive weeks in Hilton Head. Thereafter, Appellants refused to honor the bookings, and RRR was required to find comparable units out of its own pocket for the short-term guests it had previously booked that were then out of a place to stay.

At the time of the double booking, RRR, in the normal course of business, had in its possession rental funds it had received from Appellants' prior rentals. According to the contract, RRR attempted to use these funds as partial payment for the out of pockets expenses incurred in finding the short-term guests additional lodging. Appellants disagreed with this practice, and a dispute arose. Over the course of the next week, Appellants began calling the cell phone of the owner of RRR, as well as its business phone. During these calls and messages that were left, Appellants coupled extreme profanity and lewd name-calling of RRR's female employees, with threats to shut RRR down and ruin its business. According to testimony, Appellants also made calls to the Chamber of Commerce, the Beaufort County Sheriff's Department, the local newspaper, and the South Carolina Real Estate Commission. RRR's business apparently began to suddenly and severely decline, and RRR eventually brought suit against Appellants alleging three causes of action: breach of contract, breach of contract accompanied by a fraudulent act, and unlawful use of a telephone.

During the course of this four year dispute, Appellants have been represented by four different attorneys. Attorney T. Wayne Yarborough, attorney number two, represented Appellants before the trial until a fee dispute led to his filing three separate motions to be relieved as counsel. Yarborough's second motion was denied by Master-in-Equity Kemmerlin until the parties could resolve their differences in a fee dispute resolution. Subsequently, Yarborough filed a third motion, and this was granted by Circuit Court Judge Gregory in April, 2003. Yarborough immediately sent a copy of the order relieving him as counsel by certified mail, return receipt requested, along with two voided checks from Appellants totaling three thousand dollars, as well as a check from Yarborough to Appellants for two thousand dollars. Appellant Thomas Toggas signed for this mail, which also notified Appellants they should obtain counsel within thirty days, and that if they did not, they would be listed and contacted as pro se from that point forward.

The case was thereafter called to trial without Appellants present in July, 2003. Testimony presented at the trial indicated the Clerk of Court sent notice of the court roster indicating the case would be called to Appellants; however, Appellants contend they received no such notice. A jury trial and verdict resulted in a finding of $1,550 actual damages to each Thomas and Katherine Toggas on the breach of contract claim. The breach of contract accompanied by a fraudulent act claim resulted in a verdict against Thomas Toggas in the amount of $75,000 in actual damages, and $500,000 in punitive damages. Finally, the jury found damages on the unlawful communication charge against Thomas Toggas in the amount of $4,781, and $60,000 in punitive damages.

The judgment was mailed to Appellants' home of record, and Appellants subsequently filed a motion to alter, amend or vacate the judgment. After a hearing, the motions for a new trial absolute, vacation of the judgment, and new trial nisi remittitur were denied. This appeal followed.

LAW/ANALYSIS

I. Excusable Neglect

Appellants first contend the circuit court erred in refusing to set aside the judgment for excusable neglect under Rule 60, SCRCP, claiming they received no notice of the trial. We disagree.

Whether to grant or deny a motion under Rule 60(b) lies within the sound discretion of the judge. Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 17, 594 S.E.2d 478, 482 (2004). An appellate court's standard of review, therefore, is limited to determining whether there was an abuse of discretion. Id. at 18, 594 S.E.2d at 482. Relief under Rule 60(b)(1), SCRCP, lies within the sound discretion of the circuit court and will not be reversed on appeal absent an abuse of discretion. Paul Davis Sys., Inc. v. Deepwater of Hilton Head, LLC, 362 S.C. 220, 225, 607 S.E.2d 358, 360 (Ct.App.2004).

Rule 60(b)(1), SCRCP provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ...

"Although most often used when relief is sought from a judgment by default, Rule 60(b)(1) applies to any final judgment." Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 402, 368 S.E.2d 687, 689 (Ct.App. 1988). "Relief under this section is within the sound discretion of the circuit court and will not be disturbed absent a clear abuse of that discretion." Id. "Such an abuse arises when the circuit court issuing the order was controlled by an error of law or when the order, based upon factual conclusions, is without evidentiary support." Id. See also Ledford v. Pennsylvania Life Insurance Co., 267 S.C. 671, 230 S.E.2d 900 (1976); Ricks v. Weinrauch, 293 S.C. 372, 360 S.E.2d 535 (Ct.App.1987). "While these cases deal with the circuit court's discretion in setting aside default judgments, the principles are equally applicable to motions for relief from any final judgment." Goodson, 295 S.C. at 402, 368 S.E.2d at 689.

Appellants' basis for claiming excusable neglect is that they did not receive actual notice that the trial was imminent. Whether Appellants received notice of the impending trial is not clear from the record; however, the circuit court found specifically that notice was given Appellants by the clerk of court. The foundation of this finding was the testimony of both the Clerk of Court Elizabeth Smith, and Deputy Clerk of Court Joni Fields. Fields testified she had sent Appellants a copy of the July roster to their Washington D.C. address of record because Appellants were listed as pro se. Furthermore, the circuit court found Appellants' testimony that they did not receive notice to not be credible, stating the testimony was "filled with calculated and obvious misstatements and deliberate lies." "Credibility determinations regarding testimony are a matter for the finder of fact, who has the opportunity to observe the witnesses, and those determinations are entitled to great deference on appeal." Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 338, 577 S.E.2d 468, 474 (Ct.App.2003). Accordingly, the circuit court did not abuse its discretion in finding one witness's testimony more credible than another's in denying Appellants' motion to set aside the judgment due to excusable neglect.

II. New Trial; New Trial Nisi Remittitur

Appellants next contend the circuit court erred in refusing to grant their motion for a new trial absolute, or a new trial nisi remittitur pursuant to Rule 59, SCRCP. We disagree.

A circuit court may grant a new trial absolute on the ground that the verdict is excessive or inadequate. Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 805 (1993). "The jury's determination of damages, however, is entitled to substantial deference." Id. The circuit court should grant a new trial absolute on the excessiveness of the verdict only if the amount is so grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption or some other improper motives. Id. at 379-80, 426 S.E.2d at 805.

The grant or denial of new trial motions rests within the discretion of the circuit court and its decision will not be disturbed on appeal unless its findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law. Umhoefer v. Bollinger, 298 S.C. 221, 224, 379 S.E.2d 296, 297 (Ct.App.1989). See also Boozer v. Boozer, 300 S.C. 282, 387 S.E.2d 674 (Ct.App.1988) (Court of appeals has no power to review circuit court's ruling unless it rests on basis of fact wholly unsupported by evidence or is controlled by error of law.). "In deciding whether to assess error to a court's denial of a motion for a new trial, we must consider the testimony and reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party." Umhoefer, 298 S.C. at 224, 379 S.E.2d at 297.

Based on the standard described above, the circuit court was left with Appellants' testimony to decide if the jury's determination of fault and resulting damages was unsupported by the evidence or based on errors in law. Appellants testified they only received several checks from Yarborough, representing monies paid by Appellants in advance and due back after...