Cooper v. Berry

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

Wendell Cooper, Appellant,

v.

Tom Berry and Kwik Kerb, Defendants,

Of whom Tom Berry is the Respondent.

Appellate Case No. 2016-001159

Appeal From Greenville County
Letitia H. Verdin, Circuit Court Judge

Unpublished Opinion No. 2019-UP-222
Submitted May 1, 2019 – Filed June 26, 2019

AFFIRMED

Wendell Cooper, of Simpsonville, pro se.

William Brandon Bell, of Greenville, for Respondent.

PER CURIAM: Wendell Cooper appeals a circuit court order affirming the
magistrate's ruling in favor of Tom Berry d/b/a Kwik Kerb related to the
installation of concrete edging. On appeal, Cooper argues (1) Kwik Kerb breached
express and implied warranties by failing to cure problems with the edging, (2)
Kwik Kerb gave false testimony in court, and (3) Kim Berry committed the
unauthorized practice of law by representing Kwik Kerb in a court of record. We
affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether Kwik Kerb breached express and implied warranties by failing to
cure problems with Cooper's edging, we conclude the circuit court order and the
magistrate court order are well-supported by the facts and the law. See A & I, Inc.
v. Gore, 366 S.C. 233, 239, 621 S.E.2d 383, 386 (Ct. App. 2005) ("On appeal from
the magistrate court, the circuit court may make its own findings of fact."); Parks
v. Characters Night Club, 345 S.C. 484, 490, 548 S.E.2d 605, 608 (Ct. App. 2001)
("However, on appeal from a [c]ircuit [c]ourt's affirmance of a magistrate's order,
our scope of review is more limited."); A & I, Inc., 366 S.C. at 239, 621 S.E.2d at
386 ("Where the circuit court has affirmed the magistrate court decision, this court
looks to whether the circuit court order is 'controlled by an error of law or is
unsupported by the facts.'" (quoting Parks, 345 S.C. at 490, 548 S.E.2d at 608));
Herring v. Home Depot, Inc., 350 S.C. 373, 380, 565 S.E.2d 773, 776 (Ct. App.
2002) ("When goods do not conform to a promise or an affirmation of fact made
by a seller, or the goods do not conform to a description, sample, or model, then a
seller has breached an express warranty. If the goods are not merchantable, then
the seller has breached an implied warranty." (quoting Griffith v. Latham Motors,
Inc., 913 P.2d 572, 577 (Idaho 1996))); S.C. Code Ann. § 36-2-314(2) (2003)
("Goods to be merchantable must be at least such as (a) pass without objection in
the trade under the contract description; and (b) in the case of fungible goods, are
of fair average quality within the description; and (c) are fit for the ordinary
purposes for which such goods are used . . . .").

2. As to whether Kwik Kerb gave false testimony in court, we find this issue was
abandoned on appeal. See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611,
615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered
on appeal if the argument is raised in a brief but not supported by authority.").

3. As to whether Kim Berry committed the unauthorized practice of law by
representing Kwik Kerb in a court of record, we find this issue is unpreserved for
appellate review. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529
S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the trial court
to be preserved for appellate review.").

AFFIRMED.1

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
WILLIAMS, GEATHERS, and HILL, JJ., concur.