Young v. Century Lincoln-Mercury, Inc.

• Decision Date: 13 September 1989
• Docket Number: LINCOLN-MERCUR,INC,No. 1423,1423
• Court: South Carolina Court of Appeals
• Parties: Sally G. YOUNG, Respondent, v. CENTURY, Appellant. . Heard

Page 105

396 S.E.2d 105

302 S.C. 320

Sally G. YOUNG, Respondent, v. CENTURY LINCOLN-MERCURY, INC., Appellant.

No. 1423.

Court of Appeals of South Carolina.

Heard Sept. 13, 1989.

Decided Dec. 4, 1989.

On Petition for Rehearing Aug. 21, 1990.

C. Diane Smock, of Yarborough, Moore & Smock, Greenville, for appellant.

O.G. Calhoun, of Haynsworth, Marion, McKay and Guerard, Greenville, for respondent.

GARDNER, Judge:

Sally G. Young (Young) sued Century-Lincoln Mercury, Inc., (Century) alleging three causes of action, to wit: (1) violation of Unfair Trade Practices Act (UTPA), (2) fraud and deceit and (3) conversion of a check. Century interposed in its answer a general denial and a counterclaim for repairs done on Young's car. At the close of the testimony, the trial judge (1) granted Century's motion for directed verdict on the fraud action, (2) directed verdict for Century for the $6,970.75 representing the amount Young had agreed to pay for car repairs, (3) directed a verdict for Young on her conversion action in the amount of $9,230.11 and submitted the UTPA issue to the jury. The jury found for Young and the judge awarded treble damages and attorney fees. We affirm.

ISSUES

The only issue of merit is whether the trial judge erred in denying Century's motion for a directed verdict as to the UTPA action.

FACTS

Young purchased a used 1985 Honda automobile from Century in 1985 for $10,975.00. Fifteen months later she was involved in an automobile wreck in which the other party's insurance carrier (insurance company) acknowledged liability. Young had the car towed to Century, whose employee, Tony Whitaker, estimated the cost of repair at $6,900.00. The printed estimate provided "occasionally additional damage will be discovered once the work is opened up, and additional repairs will be required." This admonition provided a space for the signature of the customer; Young did not sign it and disavows knowledge of it.

Young, nevertheless, dealt with Whitaker and according to her testimony and with reference to the agreement to repair the car for $6,900.00, Whitaker assured her that when the car was repaired, it would be good as new. Young testified that she asked Whitaker if the car were his, would he fix it and he answered "definitely so."

                Young testified that she then asked him "Are you really sure?"   And he said, "Yes."   According to Young, Whitaker assured her that he could fix anything except a broken heart
                

Whitaker told Young that he had talked with the insurance adjuster and the insurance adjuster (Belcher) told Whitaker that Young had the option of totaling the car.

Young told Whitaker that she wanted to think about the situation for a day or so.

Later Young talked with the insurance company adjuster, Belcher, and he offered to pay for the repairs or pay Young $11,500.00 to total the car, the insurance company to keep the wrecked automobile.

Whitaker testified that when an insurance company had agreed to pay Century's bill and when it was discovered that the initial estimate was incorrect and that additional repairs had to be made, it was customary for Century to advise the insurance company of the additional repairs but not to advise the customer. Century's President, Frank Mims, testified that under the circumstances of this case, he believed the company had two customers, i.e., the person who owned the car and the insurance company.

At the time, Young knew nothing about Century's custom of not notifying her about additional repairs; as stated she had been told by Whitaker that they would repair the car "as good as new" and that Whitaker when asked if he could fix the car answered, "definitely so." Under these circumstances, Young decided to have the car repaired.

Century, according to the testimony, was about "50 percent into the repair work" when it discovered additional work was needed. The additional repairs amounted, according to the record, to $2,340.11, bringing the total repair bill to $9,230.11. Century contacted the insurance company and the additional work was authorized. Importantly, Century did not contact Young before completing the repairs.

When the repairs were complete, Belcher took Century a check for $9,230.11 made payable to Young. Century then told Young the car was ready and cost over $9,300.00 to repair. Young asked Whitaker to itemize the additional repairs, which he did. Young testified that she would not have authorized the repairs had she been told that the cost would be over $6,900.00.

Young went to endorse the check and pick up the car. She took a test drive and Century repaired a steering problem Young noticed. She did not endorse the check. Century contacted her and told her she forgot to sign the check but Young stated she was unable to come at that time.

Later Young met with Century's president, Frank Mims, to complain about how she was treated. Mims sent her to Breakaway Honda and they told her that her car had a retail value of $9,500.00 and that the wholesale value would be around $2,000.00 below that.

Young did not pay the bill and at trial Century still retained the check. Century's answer and counterclaim only alleged that Young refused to endorse the check; it did not allege that no demand had been made for the check although Young's complaint alleged that Century, withheld and continued to withold plaintiff's check in the amount of $9,230.11, which Century's answer denied. During the trial, Century offered evidence to the effect that no one had asked for the check and then took the inconsistent position that by her actions Young had assigned the check to Century and refused to endorse it.

During Young's case in chief she failed to introduce evidence showing demand for the check. After the close of Century's testimony, Young's attorney moved to open the case so that he could testify that he had mailed a demand for the check to Century's attorney before filing the amended complaint. ¹ The trial judge permitted Young's attorney to so testify.

As stated, at the close of the testimony, the trial judge (1) directed a verdict for Century on Young's fraud claim, (2) directed a verdict for Century for $6,970.75 on its counterclaim, (3) directed a verdict for Young for $9,230.11 on her conversion claim and (4) then submitted the UTPA claim and punitive damages for conversion to the jury. The jury awarded Young $3,500.00 on the UTPA claim and found a willful violation. The jury also awarded Young $4,500.00 punitive damages on the conversion claim.

The trial judge trebled the UTPA damages to $10,500.00 and awarded Young $7,352.50 in attorney fees under the UTPA.

At the close of Young's case in chief, Century made a non-suit type motion for a directed verdict on the grounds that Young had offered no evidence to show (1) that there was any unfairness or deceit intended or practiced by Century, and (2) that Young had failed to offer evidence relative to certain key elements of fraud. The trial judge denied these motions. The record discloses that Century failed to make a motion for a directed verdict at the close of the testimony but did make post verdict motions for judgment n.o.v.

I.

The Unfair Trade Practices Act creates a new substantive cause of action by making unlawful conduct which was not actionable under the common law of torts actionable under the statute. State ex rel. McLeod v. C & L Corporation, Inc., 280 S.C. 519, 313 S.E.2d 334 (Ct.App.1984). The UTPA should be given a liberal construction. See Paces Ferry Dodge, Inc. v. Thomas, 174 Ga.App. 642, 331 S.E.2d 4 (1985) (interpreting the Georgia Fair Business Practice Act OCGA Section 10-1-391, et seq.).

Section 39-5-20(a), Code of Laws of South Carolina (1976) declares that "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared to be unlawful.

Section 39-5-140, Code of Laws of South Carolina (1976) provides, inter alia, that a plaintiff in a UTPA action must suffer an ascertainable loss of money, etc., as a result of the use or employment by the defendant of an unfair or deceptive method, act or practice defined by Section 39-5-20. Section 39-5-140(d) provides that a willful violation occurs when the party committing the violation knew of or should have known that his conduct was a violation of Section 39-5-20.

A trade practice is "unfair" when it is offensive to public policy or when it is immoral, unethical, or oppressive; a practice is "deceptive" when it has a tendency to deceive. Harris v. NCNB, 85 N.C.App. 669, 355 S.E.2d 838 (1987).

Whether a particular act or practice is unfair or deceptive within the meaning of the UTPA statute depends upon the facts surrounding the transaction and its impact on the market place. Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 340 S.E.2d 755 (1986), cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

The Unfair Trade Practices Act should not be construed to increase a plaintiff's burden of proving liability since its purpose is to give additional protection to victims of unfair trade practices, not to make a case harder to prove than it would be under the common law principles. And consistent with this policy, actual knowledge of the principle is not necessary to hold him liable for the acts of his agent committed within the scope of his authority. State ex rel. McLeod v. C & L Corp. Inc., supra.

Under Section 39-5-20(a) and (b), Code of Laws of South Carolina (1976, as amended), a plaintiff need not prove the elements of common law deceit in order to establish a violation of the South Carolina Unfair Trade Practices Act since, under the statute, there is no need to show that a claim or representation was intended to deceive but only that it had the capacity, effect, or tendency to deceive. State ex rel. McLeod v. C & L Corporation, supra.

Even a truthful statement may be deceptive if it has a capacity or tendency to deceive. Pearce v. American...