Williamson v. Middleton

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(c)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Dan F. Williamson and Dan F. Williamson and Company,       
Respondents/Appellants,

v.

Alfred C. Middleton,       
Appellant/Respondent.

Appeal From Greenville County

C. Victor Pyle, Jr., Circuit Court
Judge

Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2005-UP-011

Heard December 13, 2004 – Filed January
11, 2005

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

James C. Parham, Jr. and Patricia
S. Ravenhorst, both of Greenville, for Appellant/Respondent.

Desa A. Ballard, of W. Columbia,
for Respondents/ Appellants.

PER CURIAM:  This is a cross-appeal from
an action involving unfair trade practices, breach of fiduciary duty, unpaid
commissions, and frivolous proceedings.  Alfred C. Middleton appeals from the
trial court’s rulings on his motions for summary judgment, directed verdict,
judgment notwithstanding the verdict, sanctions, and prejudgment interest. 
He also argues the trial court erred by admitting a brochure into evidence. 
Dan F. Williamson and Dan F. Williamson and Company also appeal, arguing the
judge who awarded attorney’s fees did not have jurisdiction to do so, and in
the alternative, that the factors for attorney’s fees were not met.  We affirm
in part, reverse in part, and remand.

FACTS

Williamson, the owner of a material handling
and packaging systems company called Dan F. Williamson and Company, employed
Middleton as a commissioned salesman.  After working for Williamson for several
years, Middleton voluntarily terminated his employment and began to work for
Peninsula Plastics, Inc., one of Williamson’s pallet suppliers. 

Before leaving Williamson’s employ, Middleton
sold products to Kaltex, Inc., and was due a commission.  Middleton claims he
sold two thousand pallets, which were to be delivered in four installments of
five hundred pallets each; however, Williamson claims Middleton only sold five
hundred pallets to Kaltex.  In any event, Williamson never paid Middleton any
commission for the sale even though it acknowledges that he was owed at least
$906.62.

Also prior to leaving his job at Williamson, Middleton
asked one of Williamson’s customers if he could use a photograph that was taken
at the customer’s plant to advertise Williamson’s product in a brochure and
on a website.  The customer granted him permission, and the photograph was used
in Williamson’s copyrighted brochure. 

After Middleton began working for Peninsula Plastics,
he was involved in creating an advertisement brochure for Peninsula Plastics. 
The Peninsula Plastics brochure was similar to Williamson’s brochure in many
ways, and the photograph used in Peninsula Plastics’ brochure appeared to be
the same photograph that was used in Williamson’s brochure, though Middleton
denied it was the same photograph.  Peninsula Plastics also began selling
its products to customers who had formerly done business with Williamson.

Williamson filed a complaint against Middleton,
alleging causes of action for fraud, constructive fraud, breach of fiduciary
duty, and violation of the South Carolina Unfair Trade Practices Act. Middleton
denied the allegations and filed a counterclaim for commissions owed and sanctions
under the South Carolina Frivolous Proceedings Act. 

Prior to trial, Middleton moved to dismiss Williamson’s
claims for fraud, constructive fraud, and unfair trade practices.  Williamson
voluntarily dismissed its claims for fraud and constructive fraud, and the court
denied Middleton’s motion to dismiss Williamson’s unfair trade practices claim. 
At the close of Williamson’s case in chief, Middleton moved for a directed verdict
as to Williamson’s remaining causes of action for unfair trade practices and
breach of fiduciary duty.  The court granted the motion as to the unfair trade
practices claim but denied the motion as to the fiduciary duty claim.  At the
close of Middleton’s case, Middleton again moved for a directed verdict on the
claim for breach of fiduciary duty, and the court denied the motion.

The jury returned its verdict in favor of Middleton
on Williamson’s remaining cause of action for breach of fiduciary duty.  The
jury also found in favor of Middleton on his counterclaim for unpaid commissions
in the amount of $906.62 actual damages.  Middleton moved for a judgment notwithstanding
the verdict and prejudgment interest, both of which were denied.  The trial
court also denied Middleton relief under the Frivolous Proceedings Act. 

After the verdict, the trial judge, Judge Pyle,
informed the parties that Middleton was entitled to attorney’s fees but did
not set an amount.  Judge Pyle asked the parties to resolve the issue among
themselves, and he explained that if they could not agree, he would set the
amount of attorney’s fees for them.  Because the parties could not resolve the
issue of attorney’s fees, Middleton petitioned the court for assistance.  Following
a hearing, Judge Miller rather than Judge Pyle, awarded Middleton $35,000.00
in attorney’s fees plus $2,209.27 in costs.  This cross-appeal followed.

LAW/ANALYSIS

Middleton argues the trial court erred (1)
denying his motion for a directed verdict as to Williamson’s claim for breach
of fiduciary duty  (2) denying his motion to exclude evidence regarding Williamson’s
copyrighted company brochure (3) denying his motion for JNOV (4) denying his
motion for attorney’s fees and costs (5) failing to grant his motion for summary
judgment as to Williamson’s claim for unfair trade practices, and (6) denying
his motion for prejudgment interest on the amount of damages awarded.  Williamson
argues Judge Miller first erred in concluding he had jurisdiction to award attorney’s
fees and also erred in awarding fees because the factors supporting an award
of attorney’s fees were not met.

I.       Middleton’s Appeal

a.       
The issue of whether
the trial court erred in failing to grant Middleton’s motion for directed verdict
on Williamson’s breach of fiduciary duty claim is moot.

Middleton first argues
the trial court erred in failing to grant his motion for directed verdict on
Williamson’s breach of fiduciary duty claim.  We find this issue is moot.

‘“A case becomes moot when judgment, if rendered,
will have no practical legal effect upon existing controversy,’ as ‘when some
event occurs making it impossible for [the reviewing court] to grant effectual
relief.’”  Southern Bell Tel. & Tel. Co. v. Herlong Pontiac-Chevrolet
Buick, Inc., 298 S.C. 299, 301 n.2, 379 S.E.2d 902, 904 n.2 (1989) (brackets
in original) (quoting Mathis v. South Carolina State Highway Dep’t, 260
S.C. 344, 195 S.E.2d 713 (1973)).  Moreover, a party may appeal only if it is
aggrieved by the result of the trial court.  Rule 201(b), SCACR.

In this matter, Middleton received a jury verdict
in his favor at trial on the breach of fiduciary duty claim.  As a result, Middleton
is not an aggrieved party.  Therefore, this issue is moot.

b.       
There was no error in allowing evidence regarding the copyright of the
Williamson Brochure.

Middleton next argues the trial court erred in
allowing any reference to the Williamson brochure because the state law claims
of Williamson are preempted by the Federal Copyright Act of 1976.  Specifically,
Middleton alleges the Federal Copyright Act preempts and precludes any reference
of the copyrighted brochure in support of Williamson’s claim for breach of fiduciary
duty.  We disagree. 

The admission of evidence is within the broad discretion
of the trial court.  Manning v. City of Columbia, 297 S.C. 451, 455,
377 S.E.2d 335, 336 (1989).  The trial court’s ruling will not be disturbed
absent an abuse of discretion.  Id.  

None of Williamson’s claims against Middleton were
based on copyright infringement.  Thus, federal preemption is not an issue in
this case.  Instead, Williamson relied on the brochure, which was very similar
to Peninsula Plastics’ brochure, to support his claim that Middleton breached
the fiduciary duty he owed to Williamson.  Because the Williamson brochure was
relevant to Williamson’s breach of fiduciary duty claim, we find no error in
the trial court’s decision to allow the brochure into evidence.

c.       
The trial court did not err in denying Middleton’s motion for JNOV.

Middleton’s third argument is that the
trial court erred in denying his motion for judgment not withstanding the verdict. 
We disagree. 

In ruling on a JNOV motion, the trial
court must view the evidence and the inferences that can be reasonably drawn
therefrom in light most favorable to the party opposing the motion.  Steinke
v. S.C. Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 386, 520
S.E.2d 142, 148 (1999). “[T]he trial court should not grant JNOV where the evidence
yields more than one inference.  An appellate court may not overturn the decision
of the trial court . . . if there is any evidence to support the ruling.”  Rogers
v. Norfolk Southern Corp., 356 S.C. 85, 92, 588 S.E.2d 87, 90 (2003). 

Initially, we note that Middleton received a jury
verdict in his favor.  Therefore, the appropriate remedy to challenge the sufficiency
of a jury award is by additur.  See, e.g., Waring v. Johnson,
341 S.C. 248, 257, 533 S.E.2d 906, 911 (Ct. App. 2000).

Furthermore, we find sufficient evidence to support
the jury’s verdict.  Williamson put forth testimony that the only amount owed
to Middleton was $906.62, exactly what the jury awarded.  Thus, the trial court
did not err in denying Middleton’s JNOV motion.

d.        The trial court
properly denied Middleton’s motion for sanctions under the Frivolous Proceedings
Act.

Middleton next argues the trial court erred in failing to
award him sanctions under the Frivolous Proceedings Act. [1]   We disagree.

The determination of whether attorney’s fees should be awarded
under the Frivolous Proceedings Act is treated as one in equity.  Hanahan
v. Simpson, 326 S.C. 140, 156, 485 S.E.2d 903, 912 (1997).  Thus, in reviewing
this issue, this court may take its own view of the preponderance of the evidence. 
Id. 

Section 15-36-20 of the Frivolous Proceedings Act creates
a presumption that a person taking part in the initiation or continuation of
proceedings acted with a proper purpose “if he reasonably believes in the existence
of facts upon which his claim is based” and either (1) reasonably believes under
the facts that his claim may be valid under existing or developing law, or (2)
relies upon the advice of counsel, sought in good faith and given after full
disclosure of all facts within his knowledge.”  Hanahan, 326 S.C. at
156-57, 485 S.E.2d at 912.  The rule of Hanahan states that “where a
party survives a summary judgment motion, it is not subject to sanctions after
a trial on the merits of the surviving claims.”  Id.

Here, Williamson clearly submitted evidence supporting his
claims, which is evidenced by the trial court’s denial of summary judgment on
his claim for unfair trade practices and the denial of a directed verdict on
his claim for breach of fiduciary duty.    Accordingly, under these facts, we
find no error in the trial court’s denial of Middleton’s motion for sanctions
under the Frivolous Proceedings Act. 

e.       The trial court
did not err in denying Middleton’s motion for summary judgment on Williamson’s
claim for unfair trade practices.

Middleton asserts the trial court erred in denying the motion
for summary judgment on Williamson’s claim for recovery under the Unfair Trade
Practices Act.  However, the denial of a motion for summary judgment is not
appealable, even after final judgment.  Olson v. Faculty House of Carolina,
Inc., 354 S.C. 161, 168, 580 S.E.2d 440, 444 (2003).  We therefore decline
to address this issue.

f.         The trial
court erred in denying Middleton’s motion for prejudgment interest on the unpaid
commissions.

Middleton asserts the trial court erred in not awarding prejudgment
interest on the award for unpaid commissions.  We agree.

Section 34-31-20(A) of the South Carolina Code of Laws
(1976) provides:

In all cases of accounts stated and in all cases wherein
any sum or sums of money shall be ascertained and, being due, shall draw interest
according to law, the legal interest shall be at the rate of eight and three-fourths
percent per annum.

Prejudgment interest is available only when the “sum is certain
or capable of being reduced to certainty.”  Lee v. Thermal Engineering,
352 S.C. 81, 88, 572 S.E.2d 298, 305 (Ct. App. 2002).

In this matter, the amount recovered by Middleton
for unpaid commissions, $906.62, was an amount conceded by Williamson from the
outset of the litigation.  Although Middleton sought money in addition to this
conceded amount, the $906.62 actually awarded to him was a sum certain that
Williamson admittedly owed. Therefore, the trial court erred in not awarding
prejudgment interest.

II.            Williamson’s Appeal

Williamson appeals the trial court’s award of attorney’s
fees.  Initially, Williamson alleges Judge Miller did not have jurisdiction
to entertain Middleton’s motion for attorney’s fees because Judge Pyle retained
exclusive jurisdiction over the matter.  Secondarily, Williamson contends Judge
Miller erred in awarding attorney’s fees because the factors supporting an award
of attorney’s fees were not satisfied.  We agree that Judge Miller did not have
jurisdiction to entertain the motion for attorney’s fees and remand the issue
to Judge Pyle.

Where a judge has jurisdiction to hear a matter
and the matter is heard before him, he entertains jurisdiction until his decision
is rendered.  First Carolinas Joint Stock Land Bank of Columbia v. Knotts,
191 S.C. 384, 395, 1 S.E.2d 797, 808 (1939).  Until written and entered, the
trial judge retains discretion to change his mind and amend his oral ruling
accordingly.  Ford v. State Ethics Comm’n, 344 S.C. 642, 647, 545 S.E.2d
821, 823 (2001).  The written order is the trial judge’s final order and as
such constitutes the final judgment of the court.  Id.  A trial judge
who controlled the case below retains control of any post trial motions.  See,
e.g.,  In re Beard, 359 S.C. 351, 358, 597 S.E.2d 835, 838 (Ct.
App. 2004) (holding a trial judge loses jurisdiction over a case when the time
to file post-trial motions has elapsed).  

Judge Pyle presided over the trial in this matter. 
Following the jury verdict, Middleton moved for attorney’s fees under the Frivolous
Proceedings Act, but the trial judge denied this motion.  However, Judge Pyle
ruled Middleton was entitled to attorney’s fees a result of the verdict in his
favor on the commissions issue.  Judge Pyle specifically undertook consideration
of the amount of attorney’s fees, asking Middleton’s counsel if he had a figure
“in mind” for the amount that ought be awarded.  Before counsel responded, Judge
Pyle stated:

Why don’t you do this?  Why don’t you submit to [Williamson’s
counsel] what you perceive to be an appropriate amount?  See if you can resolve
it between the two of you.  And if you can’t resolve it, then submit it to me,
and I will resolve the problem for you.

Judge Pyle then reiterated, “All right.  If you
can’t get together and resolve it, then let me know . . . and I will resolve
it for you.”

In so stating, Judge Pyle assumed jurisdiction
until the final order was entered in the matter.  See First Carolinas
Joint Stock Land Bank of Columbia, 191 S.C. at 395, 1 S.E.2d at 808.  Because
the order was never reduced to a final order, Judge Pyle retained exclusive
jurisdiction over the award of the attorney’s fees.  Id.  As a result,
we hold Judge Miller lacked jurisdiction to enter the award of attorney’s fees
for Middleton. 

CONCLUSION

We AFFIRM the trial court’s denial of Middleton’s
motions for directed verdict, JNOV, sanctions under the Frivolous Proceedings
Act, and summary judgment.  We also AFFIRM the trial court’s decision to allow
evidence regarding the Williamson brochure.  However, we REVERSE the trial court’s
denial of prejudgment interest on Middleton’s claim for commissions, and we
REVERSE and REMAND Judge Miller’s award of attorney’s fees.

AFFIRMED in part, REVERSED in part, and REMANDED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.

[1] S.C. Code Ann. §§ 15-36-10 through 15-36-50 (Supp. 2003).