Associated Receivables v. Shropshier

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

Associated
Receivables Funding, Inc. Respondent,

v.

Boiling Springs
Textiles and Ricky W. Shropshier, Defendants,

of whom Ricky
W. Shropshier is the Appellant.

Appeal From Spartanburg County

J. Derham Cole, Circuit Court Judge

Unpublished Opinion No.  2010-UP-501

Submitted November 1, 2010 – Filed
November 10, 2010

AFFIRMED IN PART AS MODIFIED and REMANDED

Richard H. Rhodes and William H. Rhodes,
of Spartanburg, for Appellant.

Keven K. Kenison and Townes B. Johnson,
III, of Greenville, for Respondent.

PER CURIAM:  In this appeal from a nonjury trial,
Appellant Ricky W. Shropshier appeals the judgment entered against him in favor
of Respondent Associated Receivables Funding, Inc. (A/R Funding).  Shropshier
argues A/R Funding failed to:  (1) prove Shropshier breached the contract; (2)
put forth evidence to support the award of damages; and (3) prove that it was
entitled to attorney's fees.  We affirm[1] the judgment in part as modified and remand, pursuant to Rule 220(b) and the
following authorities: 

1.  As to whether
there is any evidence that Shropshier breached the contract, we find this issue
abandoned on appeal.  See Transp. Ins. Co. & Flagstar Corp. v.
S.C. Second Injury Fund, 389 S.C. 422, __, 699 S.E.2d 687, 692 (2010)
("Short, conclusory statements made without supporting authority are
deemed abandoned on appeal and therefore not preserved for our review.")
(internal quotation and citation omitted).  As to whether there was a novation
of the parties' agreement, we find Shropshier failed to show the parties
intended the promissory note to be a substitution of the original agreement.  See Superior Auto. Ins. Co. v. Maners, 261 S.C. 257, 262, 199 S.E.2d 719,
722 (1973) (holding there must be an intention to create a novation, which can
be ascertained from the circumstances surrounding the transaction); Wellman,
Inc. v. Square D. Co., 366 S.C. 61, 72, 620 S.E.2d 86, 92 (Ct. App. 2005) (finding
a novation is "an agreement between all parties concerned for the
substitution of a new obligation between the parties with the intent to
extinguish the old obligation," and the party asserting a novation has the
burden of proving it) (internal quotation and citation omitted).

2.  As to whether
the $46,760.83 judgment is supported by the evidence, we find the award of
$6,583.62 in contractual fees is wholly unsupported by the record.  Thus, we
reduce the award by that amount.  We affirm the rest of the award, subtract the
contractual fees, and modify the judgment to $40,177.21.  See Coakley
v. Horace Mann Ins. Co., 376 S.C. 2, 6, 656 S.E.2d 17, 19 (2007) ("[O]n
appeal of a case tried without a jury, we may not disturb the trial judge's
findings of fact unless those findings are wholly unsupported by the evidence
or unless it clearly appears the findings are controlled by an error of
law.") (internal quotation and citation omitted).

3.  As to whether
the court erred in awarding attorney's fees, we find A/R Funding is
contractually entitled to attorney's fees; however, we remand the issue of the
amount of attorney's fees for consideration of the appropriate factors, as we
are unable to make this determination from the record.  See Baron
Data Sys., Inc. v. Loter, 297 S.C. 382, 383, 377 S.E.2d 296, 297 (1989)
(noting attorney's fees are not recoverable unless authorized by contract or
statute); id. at 384-85, 377 S.E.2d at 297 (stating that although no one
factor is controlling, the trial court must consider the following six
factors:  (1) the nature, extent, and difficulty of the legal services
rendered; (2) the time and labor necessarily 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 legal services; and (6) the
beneficial results obtained) (emphasis added). 

Accordingly, the
judgment herein is

AFFIRMED IN
PART AS MODIFIED and REMANDED.

THOMAS,
PIEPER, and GEATHERS, JJ., concur.

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