Graham v. Babb

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

Carey Graham and Rodney A. Chardukian, Respondents,

v.

Malcolm M. Babb, Brenda R. Babb, Cable Plus of
Carolina, Inc., South Bay Lakes Cable Partnership,
Southbridge Cable Television, LLC, and Renaissance
Enterprises, Inc., now known as Condo Services, Inc.,
Defendants,

Of whom Brenda R. Babb and Renaissance Enterprises,
Inc., now known as Condo Services, Inc., are the
Appellants.

Appellate Case No. 2011-198607

Appeal From Horry County
R. Ferrell Cothran, Jr., Circuit Court Judge

Unpublished Opinion No. 2013-UP-037
Submitted December 4, 2012 – Filed February 6, 2013

AFFIRMED

William Isaac Diggs, of the Law Offices of William
Isaac Diggs, of Myrtle Beach, for Appellant Renaissance
Enterprises, Inc.
Brenda R. Babb, of Calabash, North Carolina, pro se.

Frank H. DuRant, of DuRant & Martin, of Myrtle Beach,
for Respondents.

PER CURIAM: Brenda R. Babb and Renaissance Enterprises, Inc., now known
as Condo Services, Inc. (REI), appeal the trial court's order, arguing the trial court
erred in (1) refusing to allow Babb to testify at the damages hearing and failing to
give Babb and REI credit for costs they incurred; (2) awarding punitive damages;
and (3) allowing Graham to act as receiver and collect the judgment. We affirm.

1. We hold the trial court properly refused to allow Babb to testify at the
damages hearing. A "defaulting defendant has conceded liability." Howard v.
Holiday Inns, Inc., 271 S.C. 238, 242, 246 S.E.2d 880, 882 (1978). Although "a
defaulting defendant does not concede the [a]mount of liability," his or her
participation in a damages hearing is limited to cross-examining witnesses and
objecting to the plaintiff's evidence. Id. at 241-42, 246 S.E.2d at 882.
Additionally, we hold the trial court was not required to consider Babb and REI's
proffer of costs because their participation in the damages hearing was limited to
cross-examining witnesses and objecting to Respondents' evidence.

2. We hold the award of punitive damages was supported by the evidence and
was not excessive. "Punitive damages are recoverable in conversion cases if the
defendant's acts have been willful, reckless, and/or committed with conscious
indifference to the rights of others." Mackela v. Bentley, 365 S.C. 44, 49, 614
S.E.2d 648, 651 (Ct. App. 2005). When evaluating whether an award of punitive
damages violates due process, this court conducts a de novo review. Jenkins v.
Few, 391 S.C. 209, 221, 705 S.E.2d 457, 463 (Ct. App. 2010), cert. granted
February 13, 2012. A court conducting a post-judgment review of punitive
damages must consider the degree of reprehensibility of the defendant's conduct,
the disparity between the actual or potential harm suffered by the plaintiff and the
amount of the punitive damages award, and the difference between the punitive
damages award and the civil penalties imposed in comparable cases. Mitchell v.
Fortis Ins. Co., 385 S.C. 570, 585, 686 S.E.2d 176, 184 (2009). We hold sufficient
evidence of reprehensible conduct exists to support the punitive damages award
without considering Babb and REI's discovery abuse. Although the harm was
economic rather than physical, the harm involved repeated incidents over nearly
seven years. The complaint alleged Babb evaded Respondents' efforts to reduce an
oral agreement to writing, and Babb and REI collected revenue without making
payments to the entities that owned the cable rights. This mistake was not
accidental because Babb and REI were aware as early as June 24, 2004, when the
complaint was filed, that Respondents were claiming an interest in the money
collected. Additionally, we hold the disparity between the actual damages award
and the punitive damages award is not unreasonable or excessive. The punitive
damages award of $200,000.00 is less than the actual damages award of
$776,604.44; accordingly, the ratio is .26, which does not exceed a single-digit
ratio. See id. at 588, 686 S.E.2d at 185 ("[T]he Supreme Court has . . . consistently
declined to adopt a bright line ratio or simple mathematical test . . . [but] few
awards exceeding a single-digit ratio between punitive and compensatory damages
. . . will satisfy due process." (internal quotation marks omitted)). Given the length
of the litigation and the fact that Babb and REI continued to convert funds
belonging to the entities for more than six years, we hold an award of some type
was necessary to deter similar conduct in the future. Furthermore, the award was
reasonably related to the harm, and Babb has the ability to pay, as evidenced by her
affidavit stating she has assets valued at over $1,000,000.00 with no financial
liabilities or obligations. See id. ("[A] court, when determining the reasonableness
of a particular ratio of actual or potential harm to a punitive damages award, may
consider: the likelihood that the award will deter the defendant from like conduct;
whether the award is reasonably related to the harm likely to result from such
conduct; and the defendant's ability to pay."). Finally, a review of other cases
awarding punitive damages in conversion actions shows the punitive damages
awarded here are not excessive. See Mackela, 365 S.C. at 46, 49, 614 S.E.2d at
649, 651 (affirming an award of $50,000.00 in punitive damages for conversion
when the actual damages were only $13,320.23).

3. We hold the trial court did not err in appointing Graham as receiver. The
order appointing an independent party as a receiver was a temporary order;
accordingly, it was not law of the case. See G-H Ins. Agency, Inc. v. Travelers Ins.
Cos., 270 S.C. 147, 173, 241 S.E.2d 534, 546 (1978) ("[A court] considering a new
case on the merits is not bound by decisions on legal issues made by a [court]
considering the case on application for a temporary injunction."). Furthermore, we
hold the trial court did not err in providing that Graham could apply any funds due
to Babb against the judgment.
AFFIRMED.1

FEW, C.J., and WILLIAMS and KONDUROS, JJ., concur.

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