Sapp v. Wheeler, 5089.

• Decision Date: 20 February 2013
• Docket Number: No. 5089.,5089.
• Citation: 402 S.C. 502,741 S.E.2d 565
• Court: South Carolina Court of Appeals
• Parties: J. Mars SAPP, Respondent, v. Will D. WHEELER, P.I. Leasing & Management, Inc., Winston Kenneth Altman, II, and JDBD, LLC, Defendants, of whom, Will D. Wheeler is the Appellant. Appellate Case No.2011–189347.

402 S.C. 502

741 S.E.2d 565

J. Mars SAPP, Respondent,

v. Will D. WHEELER, P.I. Leasing & Management, Inc., Winston Kenneth Altman, II, and JDBD, LLC, Defendants,of whom, Will D. Wheeler is the Appellant.Appellate Case No.2011–189347.

No. 5089.

Court of Appeals of South Carolina.

Heard Nov. 13, 2012.

Decided Feb. 20, 2013.

Appeal From Georgetown County Thomas W. Cooper, Jr., Circuit Court Judge.

James Mixon Griffin, of Lewis Babcock & Griffin, LLP, of Columbia, for Appellant.

Thomas Whatley Bunch, II, of Robinson McFadden & Moore, PC, of Columbia, for Respondent.

SHORT, J.

In this action brought by J. Mars Sapp (Sapp) to collect rent obligations, Will Wheeler (Wheeler) appeals from a $252,798 verdict against him, arguing the trial court erred in denying his: (1) motion for a directed verdict on the claim for future damages; (2) motion for a directed verdict based on the statute of limitations; (3) request for a jury charge on the three-year statute of limitations for a breach of contract action; (4) motion for a new trial; and (5) motion for a new trial under the thirteenth juror doctrine. We affirm.

FACTS

On September 27, 1994, P.I. Leasing entered into a lease agreement with Sapp to rent a building in Surfside Beach, South Carolina.¹ The lease was to expire on October 1, 2014. Wheeler, as president of P.I. Leasing, personally guaranteed performance by P.I. Leasing of the lease obligations, including payment and rent. From October 1994 to June 1998, P.I. Leasing operated a video gambling establishment on the leased premises; however, in June 1998, Wheeler sold the business to Resort Properties South, Inc. (Resort Properties) and assigned the lease to it. Under the assignment, P.I. Leasing was liable for the rent obligations of Resort Properties,and Wheeler again personally guaranteed performance of the lease terms. Sapp continued to receive rent checks from P.I. Leasing through February 2001. Thereafter, several different entities continued to send monthly rental checks to Sapp, including: Save the Ocean Project, Inc.; Coastal Rescue Mission; Ken Altman, II, LLC; and JDBD, LLC and Kenneth Altman, II. Sapp testified every rent check from 1994 to September 2007 was signed by Wheeler, Altman, or Faircloth. Wheeler never provided Sapp with written notice he was revoking his guaranty. By September 2007, P.I. Leasing had defaulted in its payments and was evicted in June 2008.²

Sapp filed a complaint on September 30, 2008, seeking accelerated rent and damages, discounted by rent from the current tenant, in the amount of $556,099, plus attorney's fees and costs. In his answer, Wheeler asserted the lease agreement was void for a mutual mistake because Sapp leased the premises to P.I. Leasing for the purposes of operating a video gambling establishment; however, subsequent to the execution of the lease, South Carolina outlawed video gambling and the purpose for which the lease was entered could not be performed. Therefore, Wheeler claimed P.I. Leasing was excused from performing its duties under the terms of the lease due to legal impossibility. Wheeler also pleaded the following as defenses: the doctrine of estoppel, failure to mitigate, failure to state a claim for relief, statute of limitations, the doctrine of laches, the doctrine of waiver, and the guaranty was void for lack of consideration. Further, Wheeler demanded a jury trial. Sapp filed an amended complaint on October 6, 2009, alleging a cause of action against Wheeler for breach of contract.³

A trial was held June 1–3, 2010. At the close of his case, Wheeler moved for a directed verdict on Sapp's claim for future damages and asserted Sapp's claim was barred by the three-year statute of limitations. At the close of testimony and after counsels' closing arguments, the court denied both of Wheeler's motions for directed verdict. The jury returned a $252,789 verdict for Sapp against Wheeler. The court also awarded Sapp $48,929 in legal fees against Wheeler.

On June 14, 2010, Wheeler filed a motion for new trial absolute, or in the alternative, a new trial nisi remittitur. Wheeler argued the verdict against him was facially inconsistent with the $7,300 verdict against P.I. Leasing. Therefore, he asserted the court had to order a new trial absolute or in the alternative a new trial nisi remittitur to limit Wheeler's liability to the same liability as against P.I. Leasing. Wheeler also claimed the verdict was a product of confusion, passion, prejudice, partiality, corruption, or some other improper motive, and not supported by the evidence. Therefore, he requested the court grant a new trial under the thirteenth juror doctrine. Further, Wheeler alternatively sought an order remitting the verdict to $7,300. Sapp objected to Wheeler's motion, asserting Wheeler waived the ability to challenge the verdict by failing to make the objection prior to dismissal of the jury. The court denied Wheeler's motion, finding Wheeler failed to timely object. This appeal followed.

STANDARD OF REVIEW

An action for breach of contract seeking money damages is an action at law. Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 590, 658 S.E.2d 539, 541–42 (Ct.App.2008). “In an action at law, on appeal of a case tried by a jury, the jurisdiction of this [c]ourt extends merely to the correction of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings.” Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 85, 221 S.E.2d 773, 775 (1976).

LAW/ANALYSISI. Directed Verdict Motions

When reviewing the denial of a motion for a directed verdict, this court views the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Pond Place Partners, Inc. v. Poole, 351 S.C. 1, 15, 567 S.E.2d 881, 888 (Ct.App.2002). A directed verdict motion is properly granted if the evidence as a whole is susceptible of only one reasonable inference. Id. In ruling on a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence. Id. This court will only reverse the trial court when no evidence supports the ruling below. Id.

A. Future Damages

Wheeler argues the court erred in denying his motion for a directed verdict on the claim for future damages because no evidence was presented that the reasonable rental value at the time of termination was less than the reserved rent under the lease. We disagree.

At trial, Wheeler moved for a directed verdict, requesting the court strike Sapp's claim for future damages. The court held the language in the lease between P.I. Leasing and Sapp was the binding method for determining future loss of rental income following the termination of the lease. The lease Wheeler signed as a guaranty provides: “If such rentals received from such re [-]letting during any month be less than those to be paid by [sic] during that month by Tenant hereunder, Tenant shall pay any such deficiency to Owner. Such deficiency shall be calculated and paid monthly.” It further provides Sapp can terminate the lease for any breach and recover from the tenant

all damages [Sapp] may incur by reason of such breach, including the cost of recovering the [l]eased premises, reasonable attorney's fees, and, including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this [l]ease for the remainder of the stated term over the then reasonable rental value of the [l]eased [p]remises for the remainder of the stated term, all of which amounts shall be immediately due and payable from [t]enant to [o]wner.

On appeal, Wheeler argues Sapp failed to present any evidence he was entitled to future damages. Wheeler asserts that to be entitled to an award of future damages, Sapp was required to present evidence that on August 13, 2008, the reserved rent per month under the lease of $6,618 was greater than the reasonable rental value of the leased premises on the same date.

At the time the lease went into default, the monthly rent was $6,618. Once Sapp regained control of the property in Spring 2008, he was able to re-lease the property to several different tenants, and he presented evidence he netted $20,623.28 in income from the property from May 2008 to May 2010. Sapp asserts the rents he received are the reasonable rental value of the leased premises. He maintained his total damages are $494,053. Therefore, Sapp argues the reasonable rental value at the time of the termination of the lease was a question of fact for the jury because the reasonable rental value of the leased premises was subject to different interpretations. Further, the jury returned a verdict against Wheeler for $252,798, or approximately 51% of the total damages Sapp sought; thus, the jury's verdict was within the range of damages presented. Because the evidence as a whole was susceptible of more than one reasonable inference as to the reasonable rental value of the property, we find the court properly denied Wheeler's motion for a directed verdict.

B. Statute of Limitations

Wheeler argues the court erred in refusing to grant his motion for a directed verdict because Sapp failed to bring an action to enforce the guarantee against Wheeler within three years after P.I. Leasing ceased making rent payments. We disagree.

A lease agreement is a contract and an action for breach of contract must be brought within three years from the date the action accrues. S.C.Code Ann. § 15–3–530(1) (2005). Therefore, at trial, Wheeler moved for a directed verdict, asserting Sapp's claim was barred by the three-year statute of limitations. Wheeler claimed Sapp was required to bring his action within three years of the date P.I. Leasing stopped making its payments, which was in 2001. The court responded:

[T]he statute of limitations doesn't begin to run until ... Sapp ... knew or in...