Prescott & Sons Construction v. Rogers

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

Prescott & Sons Construction, LLC, Respondent,

v.

Larry Rogers and Michelle Rogers, Appellants.

Appellate Case No. 2015-001115

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2017-UP-247
Heard May 4, 2017 – Filed June 21, 2017

AFFIRMED

M. David Scott, of Jordan, Rauton & Scott, LLC, of
Lexington, for Appellants.

Lir Patrick Derieg, of Columbia, for Respondent.

PER CURIAM: In this breach of contract case arising out of renovations to their
home, Larry and Michelle Rogers (the Rogers) appeal from a jury verdict in favor
of their builder, Prescott & Sons Construction, LLC (Builder). The Rogers assert
the trial court erred in (1) denying their judgment notwithstanding the verdict
(JNOV) motion, (2) denying them a new trial, (3) admitting into evidence certain
emails sent to them by Builder because the emails were never provided in discovery,
and (4) awarding Builder attorney's fees without making sufficient findings of fact.
We affirm.

I.

In 2011, the Rogers approached Josh Prescott, owner of Builder, about additions to
their home. In April 2012, the Rogers and Builder executed a contract in which the
Rogers agreed to pay Builder's costs plus a 15% fee. The contract stated "Buyers
desire that Builder construct an attached garage, sunroom, patio & basement pad on
the Lot . . . ."

In May 2012, the parties agreed to a new contract, which recited that "Buyers desire
that Builder construct a residence on the Lot . . . ." and "'Residence' shall include the
construction of a single-family residence addition of approximately 2300 Square feet
of total area as well as porches, deck, and garage . . . ." The contract provided the
Rogers would pay all costs of the work, estimated to be $200,000, plus a builder's
fee of $25,000, payable as $5,000 per month for five months. If, however, the project
lasted less than five months, the remainder of the builder's fee was to be paid upon
issuance of the Certificate of Occupancy. If the project exceeded five months, the
builder's fee would be reduced to $2,500 per month.

The contract further provided the project cost was only an estimate and did not
include costs resulting from "unknown conditions . . . including rock or dirt removal"
and changes in scope. The contract also prohibited the Rogers from interfering with
or negotiating with Builder's subcontractors.

Josh testified the scope of work of the new contract was "only to do the garage, the
porch, do a little patio, and the sunroom." He stated the Rogers deleted the concrete
basement pad from the scope of work, yet kept bringing construction of the basement
up in conversation. Because adding a basement with several bedrooms and
bathrooms would entail a massive excavation of the dirt and support from under the
home, Josh advised the Rogers he could not give them a price until they hired an
engineer to draw plans. Josh and the Rogers ultimately met with an engineer, who
completed a blueprint for the basement construction.

On June 26, 2012, Josh called the landscaper, Jeremy Kelley, and asked him to stop
by so they could review the blueprint and calculate a price for the basement work.
Kelley happened to be en route to the Rogers' house. Upon arrival, he told Larry
Rogers, "I hear we're back on the basement . . . . Josh has called me for me to go by
his office and pick up the new plans." Larry responded that if Josh "didn't do the
basement under the current contract he wouldn't be allowed back on the property."
Kelley then testified:

I left [Larry] and went straight to Josh's office. Kind of an
odd coincidence but immediately when I walked in Ashley
[Josh's wife and office manager] handed me the plans and
[Josh's] phone rang. It was Larry. He walked out on the
porch. I stayed in with Ashley. And when he c[a]me back
in I said something about the plan. He said, well, you can
take th[ose] plans and do what you want with them. I just
got fired.

Josh gave this version of the events:

Q: And what did Larry tell you in that phone call?

A: Basically if you think I'm paying you a dime more
than what I already agreed to pay you, the $25,000
flat fee, don't come back to my property. You're
fired. . . .

Q: What was your response?

A: I said, Larry, there's no way in the world, there's
nobody on this earth that would remove all this
support from under your house and dig all the dirt
out and add you a basement for free. I said, there's
no way. And I said, so you're firing me, fine, fire
me, but I'm not doing that for free.

Josh claimed that as of June 26, 2012, the project was 50% complete. The framing
was finished, the roofing was "99% done," and he had been paid two months of his
fee, or $10,000.
Josh also testified the Rogers tried to hire his subcontractors out from under him,
and he had sent eight invoices to the Rogers that were not paid. On cross-
examination, Josh was asked repeatedly what "proof" he had that he had actually
sent the invoices to the Rogers and the Rogers had actually received them.

Phillip Padgett, the framing subcontractor, testified that, when he stopped work, the
framing was complete except for punch-list items the city building inspector issued.
Padgett said he would have remedied the punch-list at no cost, as Builder had paid
him in full for the job. Padgett also stated that, during the project, the Rogers had
contacted him directly about prices. The inspector, Brian Stephen Smith, explained
the punch-list items and also testified Larry told him Josh was not allowed back on
the property to finish the work.

During a break outside the jury's presence, Builder's counsel advised the trial court
he was providing the Rogers' counsel with copies of emails that proved Builder had
actually sent—and the Rogers had actually received—the unpaid invoices.

When Ashley Prescott testified, the Rogers objected to admission of the emails on
the ground they were not produced during discovery. The trial court overruled the
objection.

Michelle Rogers testified she and her husband had always contemplated a finished
basement and denied they fired Builder. She testified they received the mechanic's
lien itemizing the unpaid invoices on July 14, 2012, but did not remember seeing the
invoices or receiving them by email.

Larry Rogers stated the basement was within the contracted scope of work. He
claimed the contract allowed the work to continue "indefinitely," even if they added
an entire wing to their home. He testified he had paid other contractors $36,193.14
to repair Builder's poor work and noted Builder refused his invitation to return to the
job. He denied telling Kelley that Builder was not allowed back on the job.

During closing, Builder argued the Rogers breached the contract by (1) conditioning
further payment on completion of the basement, which was outside the scope of
work, (2) trying to hire Builder's subcontractors from underneath him, and (3) not
paying the invoices. He requested damages of $15,000 for the unpaid balance of the
builder's fee, and $5,086 for the unpaid invoices.

The Rogers claimed Builder abandoned the project and had given them permission
to communicate with the subcontractors on several occasions. They sought damages
of $36,193.14, the amount Larry testified he had paid to complete the work.

The jury found the Rogers breached the contract and awarded Builder $18,166.03 in
actual damages. After hearing post-trial motions, the trial court, by written order,
denied the Rogers' JNOV and new trial motions and awarded Builder attorney's fees
of $10,469.13.

II.

In considering a motion for a JNOV, the trial judge is concerned with the existence
of evidence, not its weight. Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585
S.E.2d 272, 274 (2003). Neither an appellate court, nor the trial court, has authority
to decide credibility issues or resolve conflicts in evidence. Id. The jury's verdict
must be upheld unless no evidence reasonably supports the jury's findings, and all
facts must be viewed in the light most favorable to the non-moving party. Id.

The Rogers contend they should have been granted JNOV because the contract
provided Builder could only receive his full fee if a Certificate of Occupancy was
issued. Because no Certificate of Occupancy was issued while Builder was on the
job, the Rogers claim there was no evidence upon which the jury could award
Builder the remaining fee. They further assert the contract gave Builder no right to
cure, but merely proved the owner "may" allow the right to cure. Therefore, without
a Certificate of Occupancy, they had no contractual duty to pay Builder the full fee.

Builder relies on Bensch v. Davidson, which upheld a jury charge that stated, in part,
that an owner who "refuses to permit the contractor to complete the work is liable
for the contract price less payments made and cannot counterclaim for the amount
paid for finishing the building." 354 S.C. 173, 177, 580 S.E.2d 128, 130 (2003).
Builder presented evidence showing he was fired after refusing to agree to a
substantial escalation of the scope of work without additional compensation. A party
to a contract "who prevents a condition of a contract cannot rely on the other party's
resulting nonperformance in an action on the contract." Champion v. Whaley, 280
S.C. 116, 120, 311 S.E.2d 404, 406 (Ct. App. 1984). The jury had sufficient
evidence to find the Rogers prevented Builder's performance by wrongfully
expanding the scope of the work. The jury could therefore have found the Rogers
prevented Builder from obtaining the Certificate of Occupancy, and the Rogers'
conduct excused that as a condition of the contract. Id. A reasonable jury could
have easily found the Rogers' hyper-technical interpretation of the contract was at
odds with the parties' mutual intent as expressed in the contract's terms.

III.

The Rogers claim they are entitled to a new trial because the jury's verdict was
against the weight of the evidence and its amount so inscrutable as to be unsupported
by the record. A trial court's denial of a new trial will not be disturbed on appeal
unless its findings are wholly unsupported by the evidence or controlled by error of
law. Vinson v. Hartley, 324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct. App. 1996).
Reviewing the testimony and reasonable inferences therefrom in the light most
favorable to Builder, as we are required to do, abundant evidence shows the Rogers
breached the contract by preventing Builder's performance, interfering with its
subcontractors, and refusing to pay invoices. The jury was charged properly on the
elements of breach of contract, the doctrine of prevention of performance, and the
measure of damages.

The verdict of $18,166.03 was within the range of the evidence, as Builder claimed
$5,086 in unpaid invoices and $15,000 in unpaid fees.

IV.

The Rogers next contend the trial court failed to support its attorney's fee award with
adequate factual findings. An award of attorney's fees will be affirmed if the
findings of fact are supported by any competent evidence. Blumberg v. Nealco, Inc.,
310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993). While acknowledging the trial
court's order tracked the appropriate factors from Baron Data Systems, Inc. v. Loter,
297 S.C. 382, 377 S.E.2d 296 (1989), they complain the trial court merely deemed
each factor "reasonable" and failed to conduct a sufficient analysis. They further
note there is no transcript of the attorney's fee hearing, and the fee affidavit of
Builder's counsel is not referenced in the order.

The Rogers' position is overbearing. While Judge Early's factual findings
underpinning the award are not elaborate, he presided over the case and was quite
familiar with its nature. He also noted the fees awarded to Builder were less than
those sought by the Rogers. He did not just list the factors, but made factual findings
as to each one that enjoy ample support in the record. It is not legal error to be
succinct. Cf. Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 123–24 (1991)
(holding Rule 52(a)'s requirement that in a bench trial the trial court shall "find the
facts specially" to be a "directory" requirement; where the trial court substantially
complies with Rule 52(a), SCRCP, and adequately states the basis for its result, "the
appellate court should not vacate the trial court's judgment for lack of an explicit or
specific factual finding").

V.

Finally, the Rogers argue the trial court erred in admitting the emails because they
were not disclosed during discovery. Accordingly, they contend the court erred by
not making findings on the record pursuant to Jamison v. Ford Motor Co., 373 S.C.
248, 270, 644 S.E.2d 755, 767 (Ct. App. 2007), and they were prejudiced because
the emails were the only proof of actual receipt of the invoices. The Rogers further
contend the emails were within the ambit of their discovery requests, and they had
been forced to file a motion to compel before trial. They concede, as they must, that
the motion was resolved before trial.

Jamison involved a motion for discovery sanctions, not admission of evidence at
trial. Id. The closest fit is Bensch, and Jumper v. Hawkins, 348 S.C. 142, 149–50,
558 S.E.2d 911, 915 (Ct. App. 2001), which require a trial court to make the
following findings when deciding whether to exclude a witness: (1) the type of
witness involved, (2) the content of the evidence, (3) the explanation for the failure
to name the witness in the answer to the interrogatory, (4) the importance of the
witness's testimony, and (5) the degree of surprise to the other party. Bensch, 354
S.C. at 182, 580 S.E.2d at 133. Here of course we are dealing with an exhibit rather
than a witness, but Rule 33(b), SCRCP, and the continuing duty to disclose are still
in play.

Evidentiary rulings are within the sound discretion of the trial court and warrant
reversal only if the Rogers prove both error and prejudice. Conner v. City of Forest
Acres, 363 S.C. 460, 467, 611 S.E.2d 905, 908 (2005). We find the Rogers cannot
demonstrate prejudice, which requires proof of a reasonable probability that the
jury's verdict was influenced by the challenged evidence. Id. First, the
subcontractors and their unpaid invoice amounts were listed on the mechanic's lien
served on the Rogers in July 2012, some two-and-a-half years before the trial.
Second, the emails were not the "only" evidence of receipt of the invoices: both Josh
and his wife testified they emailed them to the Rogers. Third, it was the Rogers—
and not Builder—who made "actual receipt" of the emails an issue. It is at best
awkward for the Rogers to feign unfair surprise when proof of receipt emerged. One
who falls into his own trap cannot cry ambush.
Nothing in the record explains how additional time would have enhanced the Rogers'
ability to counter proof of their own emails or demonstrates any other concrete
prejudice.

VI.

The trial was conducted fairly and expertly, and the verdict was consistent with the
evidence. The trial court committed no error in its award of attorney's fees or
admission of the disputed emails. The judgment is therefore

AFFIRMED.

GEATHERS, MCDONALD, and HILL, JJ., concur.