Gamble v. Parker

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Holly C. Gamble,       
Appellant/Respondent,

v.

John M. Parker, Winston-Carlyle Inc. I
LLC, Winston-Carlyle Inc. Park
West LLC, Winston-Carlyle & Company Inc., and Southport Capital Corporation,       
Respondents/Appellants.

Appeal From Richland County

Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2003-UP-592

Submitted September 8, 2003 – Filed
October 9, 2003

AFFIRMED

James Emerson Smith, Jr., and Julianne Farnsworth, of Columbia,
for Appellant-Respondent. 

Mark Weston Hardee, of Columbia, for Respondents-Appellants.

PER CURIAM:  Holly Gamble sued respondents
(collectively, Winston-Carlyle) alleging five causes of action related to real
estate commissions.  Both Gamble and Winston-Carlyle appeal the circuit court’s
order, which granted Winston-Carlyle’s motion for a directed verdict on four
of the causes of action and declared a mistrial on the fifth.  We affirm. [1]

FACTS

Gamble began selling real estate for
Winston-Carlyle in both Columbia and Charleston after, she asserts, a Winston-Carlyle
representative convinced her to leave her employment with another company. 
Gamble testified she and Winston-Carlyle agreed she would be paid 1.5% of all
sales she generated, receive a $3000 monthly draw based on future sales, and
receive a sales assistant.  Gamble admitted she would not be entitled to the
commission unless a closing resulted from the contract.

Winston-Carlyle terminated Gamble and later sent
her a letter purporting to set out the terms of a settlement related to her
termination.  According to the letter, she would receive 0.4% of the gross sales
price for the Charleston contracts and 0.75% for the Columbia contracts she
generated while in their employ.  Gamble testified she generated a total of
80 contracts for Winston-Carlyle for which she did not receive the 1.5% compensation
she was originally promised.  Although she presented a spreadsheet listing these
properties, Gamble failed to submit copies of the sales contracts or evidence
the sales on these properties had ever closed.  However, Gamble acknowledged
on cross-examination that information about whether the contracts had closed
was available to the public. 

In this action, Gamble alleged violation
of the South Carolina Payment of Wages Act,
[2] breach of contract, fraudulent misrepresentation, fraud, and unjust
enrichment.  Gamble claimed damages in the amount of $124,553.87 – the amount
she would have earned from a 1.5% commission on the 80 sales contracts.  At
the close of Gamble’s case, the circuit court granted Winston-Carlyle’s motion
for directed verdict on all her causes of action except unjust enrichment. 
The circuit court found Gamble did not provide adequate evidence from which
damages could be calculated – that is, Gamble did not prove the 80 sales contracts
had actually closed.  The circuit court ordered a mistrial on Gamble’s unjust
enrichment action because it concluded it had improperly excluded evidence related
to damages on that claim. 

STANDARD OF REVIEW

“In deciding whether to grant or deny a directed
verdict motion, the trial court is concerned only with the existence or non-existence
of evidence.”  Sims v. Giles, 343 S.C. 708, 714, 541 S.E.2d 857, 861
(Ct. App. 2001).  The trial court’s ruling will be sustained unless it lacks
evidentiary support.  Sabb v. South Carolina State Univ., 350 S.C.
416, 427, 567 S.E.2d 231, 236 (2002). 

LAW/ANALYSIS

A.      Gamble’s appeal

1.       Burden of proof

Gamble argues the circuit court erred
in granting a directed verdict on her breach of contract claim, asserting she
set forth a prima facie case on each claim.  We disagree. 

Gamble testified about generating 80 sales contracts
using a spreadsheet listing the properties for which she generated contracts. 
However, Gamble provided absolutely no proof that any of the contracts she was
responsible for generating and on which she sought commissions were actually
closed.  Gamble herself testified that pursuant to the agreement with Winston-Carlyle
she was not entitled to be paid until there was a closing pursuant to the contracts
that were entered into.  See Champion v. Whaley, 280 S.C. 116,
119, 311 S.E.2d 404, 406 (Ct. App. 1984) (“The broker and the owner may . .
. make the broker’s right to the commission contingent upon the occurrence of
certain conditions.”). 

Not only was it incumbent upon Gamble to prove
the closing in order to prove the breach of contract, the burden was on Gamble
to provide evidence of closings in order to prove her damages.  “The burden
of proving damages for breach of a contract rests on the plaintiff.”  Jackson
v. Midlands Human Res. Ctr., 296 S.C. 526, 528, 374 S.E.2d 505, 506 (Ct.
App. 1988).  Thus, without proof that the sales contracts resulted in closings,
Gamble could not establish either a breach of her commission agreement or the
extent of damages.

Gamble also argues the court erred in denying her
directed verdict motion on her Payment of Wages Act claim.  This argument fails
for the same reason as her argument regarding her breach of contract claim. 
Because she has not established what, if any, compensation was wrongfully withheld,
the court properly granted Winston-Carlyle’s motion for a directed verdict. 
See Dumas v. InfoSafe Corp., 320 S.C. 188, 194, 463 S.E.2d 641,
645 (Ct. App. 1995) (“[T]he South Carolina Payment of Wages Act is remedial
legislation designed to protect working people and assist them in collecting
compensation wrongfully withheld.”).

2.       Exclusion of evidence

Gamble argues the circuit court erred in excluding
evidence related to her breach of contract action.  Specifically, Gamble argues
the court should have admitted (1) evidence of prior employment agreements and
industry standards and (2) an annotated copy of the spreadsheet she offered
regarding sales contracts she generated.
[3]   However, the circuit court explained its reasoning in excluding this
evidence.  The court did not allow evidence of prior employment or industry
practices because the complaint concerned whether Winston-Carlyle violated the
terms of the specific agreement with Gamble.  The spreadsheet was excluded because
Gamble had annotated it with a series of notes approximately one week before
trial. 

“The admission or exclusion of evidence is a matter
within the sound discretion of the trial court and absent clear abuse, will
not be disturbed on appeal.”  Gamble v. Int’l Paper Realty Corp., 323
S.C. 367, 373, 474 S.E.2d 438, 441 (1996).  To warrant reversal for the exclusion
of evidence, the appellant “must show both the error of the ruling and resulting
prejudice.”  Recco Tape & Label Co. v. Barfield, 312 S.C. 214, 216,
439 S.E.2d 838, 840 (1994). 

Gamble did not demonstrate that she was prejudiced
by the circuit court’s decision to exclude certain evidence.  Although Gamble
wanted to introduce evidence of her past employment history and industry practices,
she did not state what she hoped to achieve with the admission of such evidence. 
This case involves the specific terms of her employment agreement with Winston-Carlyle
– examination of a prior employment agreement would not have shed light on this
issue.  Similarly, Gamble did not show the prejudicial effect of the exclusion
of the annotated spreadsheet.  Gamble made the notations approximately one week
before trial.  The notations simply indicated which sales contracts were generated
by Gamble – they do not indicate whether any of the contracts had closed.  Because,
as discussed above, this information would have not been sufficient to establish
breach or damages, Gamble cannot prove prejudice flowing from its exclusion. 
Accordingly, the circuit court did not err in granting Winston-Carlyle a directed
verdict on Gamble’s breach of contract claim.

B.      Winston-Carlyle’s appeal

Winston-Carlyle argues the circuit court erred
in denying its motion for a directed verdict on Gamble’s unjust enrichment claim. 

The trial
court granted a mistrial on the unjust enrichment action, reasoning that it
had erred in excluding evidence.  Because there was no final judgment, the court’s
denial of Winston-Carlyle’s directed verdict motion on this action is not appealable. 
South Carolina Code section 14-3-330 (1976 & Supp. 2002) provides that only
final judgments and limited interlocutory appeals including those involving
the merits of the case or affecting a substantial right are directly appealable. 
See also Rule 201(a), SCACR (stating an appeal may be taken only from
a “final judgment or appealable order.”); Cf. Olson v. Faculty House
of Carolina, Inc., 354 S.C. 161, 167-68, 580 S.E.2d 440, 443-44 (2003) (holding
denial of motion for summary judgment is not appealable); Ballenger v. Bowen,
313 S.C. 476, 477-78, 443 S.E.2d 379, 380 (noting denial of summary judgment
motion does not “finally determine” anything about the merits of the
case and thus is not appealable). 

AFFIRMED.

STILWELL, HOWARD, and KITTREDGE, JJ., concur.

[1]        We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2]        S.C. Code Ann. §§ 41-10-10 to -110 (Supp. 2002). 

[3]        Gamble also argues (1) Winston-Carlyle destroyed several
documents and (2) the circuit court erred in failing to rule on a motion to
compel discovery.  However, these issues are not proper for our review.  First,
the issue of the destruction of documents was raised without supporting authority. 
See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d
513, 514 (1994) (holding the failure to provide arguments or supporting authority
for an issue renders it abandoned).  Second, Gamble did not move for a continuance
in order to pursue discovery.  See, e.g., Degenhart v. Knights
of Columbus, 309 S.C. 114, 118, 420 S.E.2d 495, 497 (1992) (stating whether
court erred in granting summary judgment while appellants had outstanding
motion to compel was not preserved when appellants failed to move for a continuance
and did not request motion for summary judgment be held in abeyance until
after ruling on discovery motion).