Sub Station II of Tennessee, Inc. v. Oliver, 23571
| Decision Date | 04 December 1991 |
| Docket Number | No. 23571,23571 |
| Citation | 414 S.E.2d 141,307 S.C. 166 |
| Court | South Carolina Supreme Court |
| Parties | SUB STATION II OF TENNESSEE, INC., and Robert A. Galiano, Jr., Respondents, v. James O. OLIVER, Sr., Appellant. . Heard |
John E. Miles, and M.M. Weinberg, Jr., of Weinberg, Brown & McDougall, Sumter, for appellant.
J. Edward Bell, III, of Bell & Bagley, Sumter, for respondents.
Respondents Sub Station II of Tennessee, Inc., and Robert A. Galiano, Jr., initiated this breach of contract action against appellant James O. Oliver, Sr., for nonpayment of a promissory note. The jury returned a verdict in favor of respondents. On appeal, appellant raises various procedural and evidentiary issues. We reverse and remand for a new trial.
Sub Station II, Inc., is a national submarine sandwich fast food restaurant chain. Galiano, through his corporation, Sub Station II of Tennessee, Inc., (Sub Station II) owned the franchise rights for the State of Tennessee. On September 1, 1984, Oliver and Sub Station II executed a contract of sale in which Oliver agreed to purchase the franchise rights for $70,000. Pursuant to the contract, Oliver paid $20,000 down and executed a promissory note for $50,000, payable in three annual installments. During the next three years, Oliver made only a few small payments on the outstanding balance due on the note. As a result, Sub Station II and Galiano instituted this action for breach of contract against Oliver to recover the balance due on the promissory note. Oliver denied liability on the note and counterclaimed for fraud.
At the close of all the evidence, Sub Station II moved to dismiss Oliver's counterclaim for failure to state a cause of action on the ground that Oliver had failed to plead the materiality element of fraud. Sub Station II also moved for a directed verdict on the counterclaim. Oliver moved to amend his pleading to conform to the proof under Rule 15(b), SCRCP. Oliver also requested leave to amend to add two additional causes of action. The trial judge granted Sub Station II's motion to dismiss the counterclaim and motion for a directed verdict and denied Oliver's motions for leave to amend. The case was submitted to the jury on Sub Station II's claim that Oliver had breached the promissory note by nonpayment. The jury returned a verdict in favor of Sub Station II and against Oliver in the amount of $49,000. Oliver appeals.
Oliver contends that the trial judge erred in granting Sub Station II's motion for a directed verdict on the counterclaim. We agree.
In ruling on a directed verdict motion, the trial judge must view the evidence and all reasonable inferences in a light most favorable to the nonmoving party, and if more than one reasonable inference can be drawn from the testimony, the case should be submitted to the jury. Santee Portland Cement Co. v. Daniel Int'l Corp., 299 S.C. 269, 384 S.E.2d 693 (1989). Here, the trial judge directed a verdict on the counterclaim on the ground that the evidence of fraud was not clear, cogent, and convincing. However, the issue of whether the...
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