Marsh Waterproofing, Inc. v. Steeple Dorchester Ltd.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Marsh Waterproofing, Inc., Respondent,

v.

Steeple Dorchester Ltd. and Hamilton Management
Services Company, Inc., Appellants.

Appellate Case No. 2020-000921

Appeal From Charleston County
Frank R. Addy, Jr., Circuit Court Judge

Unpublished Opinion No. 2023-UP-210
Heard April 12, 2023 – Filed May 24, 2023

AFFIRMED

Christopher Clay Olson, of Gordon & Rees, LLP, of
Charleston, for Appellants.

Albert A. Lacour, III, and Tyler Ethan Cloud, both of
Clawson & Staubes, LLC, of Charleston, for Respondent.

PER CURIAM: Steeple Dorchester Ltd. (Steeple) and Hamilton Management
Services Company (Hamilton) appeal an order finding Marsh Waterproofing, Inc.
(Marsh) was entitled to claim a mechanic's lien to secure a debt, including costs
and attorney's fees. Steeple and Hamilton argue the trial court erred in: (1)
entering a money judgment in favor of an unlicensed contractor in violation of
sections 40-11-30 1 and 40-11-370 2 of the South Carolina Code (2011); (2) issuing
a money judgment against them because no proof was presented that either of them
entered into a contract with Marsh; (3) granting a judgment on the mechanic's lien
because it was not a justiciable matter; (4) awarding attorney's fees and costs to
Marsh; (5) not granting their motion for a new trial; and (6) not granting their
motion for reconsideration. We affirm 3 pursuant to Rule 220(b), SCACR, and the
following authorities:

1. We find the evidence supports the trial court's determination that the work
was not structural in nature: (1) Marsh made no repairs or modifications to the
structural elements of the building other than to mix up a couple of bags of
concrete to close up the access opening in the slab, which did not amount to $5,000
worth of work to the existing structural elements; (2) the foam did not attach to any
of the structural elements and did not modify or change any of the structural
elements because the foam simply occupied the airspace to prevent the slab from
moving downward if the slab failed; (3) the scope of work outlined in the
engineering report did not specify any repairs to any existing structural elements;
and (4) if the foam is not being used for energy efficiency as insulation and is only
being used as a means to fill a void, there is no classification for this use that
would require a license. Thus, the trial court correctly found Marsh was not
required to be licensed for the work it performed. See S.C. Code Ann. § 40-11-
20(8) (2011) ("General construction" is defined as "the installation, replacement, or
repair of a building, structure, highway, sewer, grading, asphalt or concrete paving,
or improvement of any kind to real property."); S.C. Code Ann. § 40-11-20(9)
(2011) ("General contractor" is defined as "an entity which performs or supervises
or offers to perform or supervise general construction."); S.C. Code Ann. § 40-11-
410(4)(c) (2011) (providing the "Interior Renovation" license classification is
defined as "includ[ing] installing, remodeling, renovations, and finishes of
acoustical ceiling systems and panels, load-bearing and nonload-bearing drywall
partitions, lathing and plastering, flooring (excluding carpet) and finishing, interior

1
S.C. Code Ann. § 40-11-30 (2011) provides: "No entity or individual may
practice as a contractor by performing or offering to perform contracting work for
which the total cost of construction is greater than [$5,000] for general contracting
. . . without a license issued in accordance with this chapter."
2
S.C. Code Ann. § 40-11-370(A) (2011) makes it unlawful "to perform or offer to
perform general or mechanical construction without first obtaining a license as
required by this chapter."
3
The attorney for Appellants failed to appear at oral argument.
recreational surfaces, window and door installation, and installation of fixtures,
cabinets, and millwork; and which also includes fireproofing, insulation, lining,
painting, partitions, sandblasting, interior wall covering, and waterproofing. This
subclassification does not include alterations to load-bearing portions of a
structure."). Further, we find the South Carolina Contractors' Licensing Board
correctly concluded that Marsh "was not supervising any work on the project(s)
and believed that Hamilton was either the licensed general contractor hiring,
organizing, and supervising subcontractors, or that Hamilton had hired a licensed
general contractor to organize and supervise subcontractors" and "[i]f this was the
case, [Marsh] was not required to be licensed as a sub-contractor pursuant to S.C.
Code Ann. § 40-11-270(E)." See Teseniar v. Pro. Plastering & Stucco, Inc., 407
S.C. 83, 97, 754 S.E.2d 267, 274 (Ct. App. 2014) (holding because the general
contractor was licensed, it was permitted to utilize an unlicensed professional's
services, and as a result, section 40-11-370(C) did not preclude the unlicensed
professional from bringing a cross-claim against its subcontractor); id. (noting the
pertinent licensing statutes are intended to protect the public interest and "[t]he
purpose of protecting the public interest by denying enforceability does not exist
when dealing with claims between contractors" (citing Kennoy v. Graves, 300
S.W.2d 568, 570 (Ky. 1957) ("The statute involved, and similar ones, are designed
to protect the public from being imposed upon by persons not qualified to render a
professional service. The reason for the rule denying enforceability does not exist
when persons engaged in the same business or profession are dealing at arm[']s
length with each other. In the case before us appellant was in a position to know,
and did know, the qualifications of appellee. No reliance was placed upon the
existence of a license, as presumptively would be the case if appellee was dealing
with the general public."))). But see C-Sculptures, LLC v. Brown, 403 S.C. 53, 55,
742 S.E.2d 359, 360 (2013) (finding C-Sculptures, which was a general contractor
which failed to hold the appropriate license for the work, was excluded from
enforcing a contract pursuant to section 40-11-370). Accordingly, the trial court
did not err in entering a money judgment for Marsh.

2. We find the evidence supports the trial court's determination that Steeple and
Hamilton entered into a contract with Marsh: (1) the correspondence between
Hamilton and Marsh indicated that Burns, who signed an authorization for the
work to be performed, was acting for Hamilton; (2) Hamilton, as the manager who
was authorized to sign for Steeple and State Acquisitions, signed the proposal
submitted by Marsh; and (3) Steeple and Hamilton received valuable consideration
in the form of the work completed by Marsh. See Hennes v. Shaw, 397 S.C. 391,
399, 725 S.E.2d 501, 505 (Ct. App. 2012) ("The necessary elements of a contract
are offer, acceptance, and valuable consideration."); Prestwick Golf Club, Inc. v.
Prestwick Ltd. P'ship, 331 S.C. 385, 389, 503 S.E.2d 184, 186 (Ct. App. 1998)
("Valuable consideration to support a contract may consist of some right, interest,
profit or benefit accruing to one party or some forbearance, detriment, loss or
responsibility given, suffered or undertaken by the other."); Hennes, 397 S.C. at
399, 725 S.E.2d at 506 ("To recover for a breach of contract, the plaintiff must
prove: (1) a binding contract; (2) a breach of contract; and (3) damages
proximately resulting from the breach."); Jaffe v. Gibbons, 290 S.C. 468, 472, 351
S.E.2d 343, 345 (Ct. App. 1986) ("The general rule is that where both parties have
signed a contract, the signing by the first party is in effect his proposal or offer, and
the signing by the second party is his acceptance thereof; the writing then
represents or evidences the bargain between them.").

3. We find the issue as to whether the trial court erred in granting a judgment
on the mechanic's lien because it was not a judiciable matter is abandoned by
Appellants for failure to cite any authority. See Rule 208(b)(1)(E), SCACR
(requiring citation to authority in the argument section of an appellant's brief);
First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (noting
when a party fails to cite authority or when the argument is simply a conclusory
statement, the party is deemed to have abandoned the issue on appeal).

4. We find the trial court correctly awarded attorney's fees and costs to Marsh
because they are authorized by statute. See S.C. Code Ann. § 29-5-10(a) (2007)
("The costs which may arise in enforcing or defending against the lien under this
chapter, including a reasonable attorney's fee, may be recovered by the prevailing
party."). We also find the court properly considered the factors for determining an
award of fees. See Blumberg v. Nealco, Inc., 310 S.C. 492, 494, 427 S.E.2d 659,
660 (1993) (providing the six factors that should be considered when determining
an award of attorney's fees: "1) [the] nature, extent, and difficulty of the legal
services rendered; 2) [the] time and labor devoted to the case; 3) [the] professional
standing of counsel; 4) [the] contingency of compensation; 5) [the] fee customarily
charged in the locality for similar services; and 6) beneficial results obtained");
Keeney's Metal Roofing, Inc. v. Palmieri, 345 S.C. 550, 553, 548 S.E.2d 900, 901
(Ct. App. 2001) ("The determination as to the amount of attorney's fees that should
be awarded under the mechanic's lien statute is addressed to the sound discretion of
the trial court."); id. ("The court's decision regarding such a matter will not be
disturbed absent an abuse of discretion.").

5. Viewing the testimony and reasonable inferences to be drawn therefrom in
the light most favorable to the nonmoving party, we find the trial court did not err
in denying Steeple and Hamilton's motion for a new trial because the court's
decision was based on factual conclusions that are supported by the evidence. See
RRR, Inc. v. Toggas, 378 S.C. 174, 182, 662 S.E.2d 438, 442 (Ct. App. 2008)
(stating the grant or denial of a motion for a new trial lies within the sound
discretion of the trial 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"); Vinson v. Hartley, 324 S.C. 389, 405, 477 S.E.2d 715,
723 (Ct. App. 1996) ("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.").

6. Because we find the trial court did not err in its findings, we also find the
trial court did not err in denying Steeple and Hamilton's motion for
reconsideration.

AFFIRMED.

THOMAS, MCDONALD, and HEWITT, JJ., concur.