Autenrieth v. Lollis

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

Eric A. Autenrieth and Lisa Autenrieth, Appellants,

v.

Curtis J. Lollis, Robert A. Baldree and
Excell Investments, Inc., a South Carolina Corporation, Respondents.

Appeal From Anderson County

 J. Cordell Maddox, Jr., Circuit Court
Judge

Unpublished Opinion No.  2011-UP-392

Submitted June 6, 2011 – Filed August 18,
2011

AFFIRMED AND REMANDED

Harold P. Threlkeld, of Anderson, for Appellants.

Wendell L. Hawkins, of Greer, for Respondents.

PER CURIAM:  Eric and Lisa Autenrieth (the Autenrieths)
appeal from the trial court's order granting summary judgment to Curtis Lollis,
Robert Baldree, and Excell Investments, Inc. (collectively, Respondents).  The
Autenrieths argue the court erred in granting summary judgment to Respondents
because (1) there are issues of fact for the jury to decide on their causes of
action in unjust enrichment and conversion; (2) they are entitled to
prejudgment interest; (3) they are entitled to attorney's fees; and (4) there
are questions of fact about the identity of Respondents.  We
affirm[1] and remand the case to the trial court for a hearing on damages.[2]

1.  The Autenrieths entered into a
construction contract with Respondents to build a home for them for $665,950. 
Simultaneously with the execution of the contract and prior to construction,
the Autenrieths paid Respondents $33,297.50 to be used to begin construction of
their home.  However, the next month, the Autenrieths told Respondents they no
longer wanted to continue with the construction of their home and demanded an accounting
and refund of all unearned funds from Respondents.  The Autenrieths claim
Respondents only sustained $6,800 in damages because of their breach of
contract, and they are entitled to a return of the remainder of the earnest
money.  They assert Respondents will be unjustly enriched if Respondents retain
more of their earnest money than they are entitled to retain.  However, the
Autenrieths had a contract with Respondents and they paid Respondents pursuant
to the contract, which they then breached.  Thus, we find the trial court
correctly granted Respondents' motion for summary judgment on this cause of
action.  See Dema v. Tenet Physician Servs.-Hilton Head, Inc.,
383 S.C. 115, 123, 678 S.E.2d 430, 434 (2009) (stating unjust enrichment is an
equitable doctrine that permits a plaintiff to recover benefits or money that,
in justice and equity, belongs to him or her and a defendant has retained at
the expense of the plaintiff); Earthscapes Unlimited, Inc. v. Ulbrich,
390 S.C. 609, 616, 703 S.E.2d 221, 225 (2010) (noting absent an express
contract, our courts have recognized quantum meruit, based on quasi-contract,
as an equitable doctrine to allow recovery for unjust enrichment); Gignilliat
v. Gignilliat, Savitz & Bettis, L.L.P., 385 S.C. 452, 467, 684 S.E.2d
756, 764 (2009) (holding to prevail on a cause of action for quantum meruit, a
plaintiff must show (1) a benefit was conferred by the plaintiff upon the
defendant; (2) realization of that benefit by the defendant; and (3) retention
of the benefit by the defendant under circumstances that make it inequitable
for him to retain it without paying its value); id. (requiring the
plaintiff to prove actual damages resulting from the wrongful retention of
benefits by the defendant). 

2.  The Autenrieths claim they are
entitled to have all funds in excess of $6,800 returned to them and allege Respondents'
refusal to return the funds constitutes conversion.  However, the record
reveals no evidence Respondents wrongfully assumed and exercised the right of
ownership over the Autenrieths' money.  Pursuant to the construction contract,
the Autenrieths were required to pay Respondents five percent as a down
payment.  In his deposition, Eric Autenrieth testified he voluntarily gave
Respondents the money to enter into the contract and use as a first draw to
begin building his home.  He further testified that Respondents would not have
begun to build the home had he not paid them the money, and he wanted them to
begin building his home at that time.  He also admitted he unilaterally
terminated the contract, and Respondents did not agree to the termination. 
Additionally, at the hearing on the Autenrieths' motion for reconsideration, the
Autenrieths' attorney conceded they breached the contract.  Therefore, the Autenrieths
did not have title or right to possession of the property at the time of the
alleged conversion, as required to establish a cause of action for conversion. 
Thus, we find the trial court correctly granted Respondents' motion for summary
judgment on this claim.  See Moore v. Benson, 390 S.C. 153, 162,
700 S.E.2d 273, 278 (Ct. App. 2010) (defining conversion as the unauthorized
assumption and exercise of the rights of ownership over goods or personal
chattels belonging to another, to the alteration of their condition or to the
exclusion of the rights of the owner); Jenkins v. Few, 391 S.C. 209,
218, 705 S.E.2d 457, 461 (Ct. App. 2010) (stating that conversion may arise by
illegal use or misuse, or by illegal detention of another's chattel); Mackela
v. Bentley, 365 S.C. 44, 48, 614 S.E.2d 648, 650 (Ct. App. 2005) (holding a
plaintiff may prevail upon a claim for conversion by showing the unauthorized
detention of the property, after a demand); Gignilliat, 385 S.C. at 465,
684 S.E.2d at 763 (requiring a plaintiff to establish either title to or right
to the possession of the personal property at the time of the conversion to
establish the tort of conversion); Mackela, 365 S.C. at 48, 614 S.E.2d
at 650 ("A plaintiff's claim for conversion fails where the defendant
proves a legal right to the property.").

3.  The Autenrieths assert the
contract was signed by Respondent Curtis Lollis, on behalf of Excell Builders,
which is not a legal entity.  Thus, they assert it is a question of fact as to the
identity of Excell Builders.  In his deposition, Eric Autenrieth testified that
when he purchased his lot, he was given a list of approved builders that listed
Excell Builders as a builder, and he thought Excell Builders was a
corporation.  The top of the construction contract was titled, "Excell
Builders Construction Contract," and it was signed by Curt Lollis, as
Excell Builders.  Additionally, when asked about Defendants' Exhibit 3, which
was not provided in the record on appeal, Eric Autenrieth testified the
document listed Curt Lollis as Vice President of Excell Builders, and Lollis
was not acting in his individual capacity.  Therefore, the Autenrieths did not
present any evidence that revealed they believed they were dealing with any of
the officers of Excell Builders in their individual capacity rather than as a
corporation.  Thus, we find the trial court did not err in dismissing Lollis
and Baldree individually from the action.   

4.  We need not address the
Autenrieths' remaining arguments pertaining to prejudgment interest and
attorney's fees because we affirm the trial court's order granting summary
judgment to Respondents on the Autenrieths' causes of action for unjust
enrichment and conversion.  See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an
appellate court need not review remaining issues when its determination of
another issue is dispositive of the appeal).

AFFIRMED AND REMANDED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.

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

[2]  In the trial court's order finding Respondents were entitled to judgment as a
matter of law on Respondents' counterclaims, the court stated the amount of
damages due to Respondents would be ascertained by a subsequent damages hearing.