Adams Outdoor Advertising v. Dangerfield

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

Adams Outdoor Advertising, Limited Partnership, Respondent,

v.

John C. Dangerfield, Appellant.

Appeal
From Berkeley County

Roger
M. Young, Circuit Court Judge

Unpublished
Opinion No. 2012-UP-023

Heard
December 8, 2011 – Filed January 25, 2012

AFFIRMED

Justin O'Toole Lucey and Stephanie
Dennette Drawdy, both of Mount Pleasant, for Appellant.

Donald Bruce Clark, of
Charleston, for Respondent.

PER
CURIAM:  John
C. Dangerfield appeals the circuit court's finding that he is liable for a debt
owed to Adams Outdoor Advertising, LP (Adams) under a contract between the
parties.  We
affirm.

FACTS

Dangerfield
opened Johnny's Suzuki in Moncks Corner, South Carolina in 2005.  According to Dangerfield,
Johnny's Suzuki is operated by Johnny's Enterprises, Inc., a South Carolina
corporation, of which Dangerfield is the registered agent.  Johnny's Suzuki is
not one of the forty-four South Carolina corporations owned by Dangerfield.  Adams,
a Minnesota limited partnership authorized to do business in South Carolina,
provides outdoor advertising to its customers.  On November 21, 2006, Adams
entered into a written media display contract with Johnny's Suzuki to provide
outdoor advertising for 52 weeks for $780,000.  The contract listed Johnny's
Suzuki as the client and was signed by Dangerfield. In August and September
2007, the parties modified the contract by written agreement, reducing the
remaining monthly payments from $60,000 to $52,750 and giving Johnny's Suzuki a
$1,125 credit on the contract amount due. The parties also entered into seven
purchase agreements.  The purchase agreements listed Johnny's Suzuki as the
client and were signed by either Dangerfield or Karen Dial.[1]  According to Adams, it received fourteen checks from Johnny's Enterprises, one
check from Johnny's Subaru & Isuzu, LLC, and two checks from Johnny's
Subaru Isuzu, totaling $631,207.83. 

On
October 21, 2008, Adams filed a complaint alleging Dangerfield breached the
parties' contract and purchase agreements by failing to make all payments when
due.  Adams alleged Dangerfield owed $100,317.17 on the contract and $5,600 on
the purchase agreements.  Dangerfield denied he was a party to the
contract and purchase agreements (hereinafter referred to as "the
contracts") and asserted that Johnny's Enterprises, d/b/a Johnny's Suzuki,
was the contracting party. 

On January 21, 2010, a trial was held
before the circuit court.  In a January 24, 2010 order, the circuit
court found the contracts were between Dangerfield, d/b/a Johnny's Suzuki, and
Adams.  The circuit court further determined Dangerfield failed to meet his
burden of proving his affirmative defense that the contracts were between Adams
and Johnny's Enterprises.   The court ordered Dangerfield to pay Adams
$136,637.57, which included the debt owed under the contracts, pre-judgment
interest, attorney's fees, and costs.  On February 3, 2010, Dangerfield filed a
motion for reconsideration asserting Adams had the burden of proving the
contracts were not between Adams and Johnny's Enterprises.  The circuit court denied
Dangerfield's motion. 

STANDARD OF
REVIEW

"An action for breach of contract
is an action at law."  Electro Lab of Aiken, Inc. v. Sharp Constr. Co.
of Sumter, 357 S.C. 363, 367, 593 S.E.2d 170, 172 (Ct. App. 2004). 
"In an action at law, on appeal of a case tried without a jury, the
appellate court's standard of review extends only to the correction of errors
of law."  Id.  "The trial judge's findings of fact will not be
disturbed upon appeal unless found to be without evidence which reasonably
supports the judge's findings."  Id.

LAW/ANALYSIS

I.  Debt
Liability

Dangerfield argues the circuit court
erred in finding he was personally liable for the debts incurred under the
contracts.  We disagree.

A.  Ambiguity

Dangerfield argues "Johnny's Suzuki"
was an ambiguous term in the contracts, and the circuit court should have
construed this ambiguity against Adams. At trial, Dangerfield never argued any
terms of the contracts were ambiguous. Furthermore, the circuit court did not
make any findings regarding ambiguity in its final order, and Dangerfield
failed to raise any ambiguity claims in his Rule 59(e), SCRCP motion. 
Accordingly, this issue is not preserved for our review.  See Pye v.
Estate of Fox, 369 S.C. 555, 564-65, 633 S.E.2d 505, 510 (2006)
(holding an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the circuit court to be preserved for
appellate review).

B.   Trade Name

Dangerfield argues the circuit court
erred in finding he was personally liable for the debt owed on the contracts because
Johnny's Suzuki is a trade name of Johnny's Enterprises. Dangerfield contends
he entered into the contracts as an agent of Johnny's Enterprises, and Adams
knew Johnny's Suzuki operated under Johnny's Enterprises.  We find Dangerfield
failed to meet his burden of proving the contracts were between Adams and
Johnny's Enterprises.  See Cole v. S.C. Elec. & Gas, Inc.,
362 S.C. 445, 452, 608 S.E.2d 859, 863 (2005) (holding a defendant has the
burden of proving affirmative defenses listed in Rule 8(c), SCRCP).  The name "Johnny's
Enterprises" does not appear anywhere on the contracts, and Dangerfield
signed the contracts without any indication he was signing on behalf of
Johnny's Enterprises.  Furthermore, there is no evidence in the record Adams
knew Dangerfield was acting on behalf of Johnny's Enterprises.  Although James Cusaac,
a controller at Adams, testified Adams had done business with Dangerfield in
the past, he did not testify that those business dealings were with Johnny's
Enterprises.  There is no evidence Adams previously entered into any contracts
with Johnny's Enterprises.  Accordingly, we find the circuit court did not err
in finding Dangerfield personally liable for the debt owed on the contracts. 

II.  Novation

Dangerfield argues a novation occurred
when Adams accepted payment from Johnny's Enterprises, thus relieving
Dangerfield of any personal liability.  Citing Jay Cee Fish Co. v. Cannarella,
279 F. Supp. 67 (D.S.C. 1968), Dangerfield contends he was relieved of any
liability for the debt owed on the contracts after Adams accepted checks from
Johnny's Enterprises, Johnny's Subaru & Isuzu, and Johnny's Subaru Isuzu.  At
trial, Dangerfield never argued there was a substitution whereby Johnny's Enterprises
became the new debtor in place of Dangerfield, d/b/a Johnny's Suzuki.  Dangerfield
maintained the contracts were always between Adams and Johnny's Enterprises,
d/b/a Johnny's Suzuki.  We also note Dangerfield failed to cite any of the
novation cases he relies on in his brief to the circuit court.  Because Dangerfield's
novation argument was never raised to and ruled upon by the circuit court, it
is not preserved for our review.  See Pye, 369 S.C. at 564-65,
633 S.E.2d at 510 (holding an issue cannot be raised for the first time on
appeal, but must have been raised to and ruled upon by the circuit court to be
preserved for appellate review).  Accordingly, the decision of the circuit
court is

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 

[1] Although it was
indicated at oral argument that Dial was an employee of Dangerfield, it is
unclear from the record what her relationship is to Dangerfield, Johnny's Suzuki,
or Johnny's Enterprises.