Savannah Architectural Supply v. Brady

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Savannah Architectural Supply, Inc., Respondent,

v.

James R. Brady,
d/b/a Brady Builders, Appellant.

Appeal From Beaufort County

 Curtis L. Coltrane, Special Circuit Court
Judge

Unpublished Opinion No. 2008-UP-325

Submitted May 1, 2008 – Filed June 27,
2008   

AFFIRMED

Thomas J. Finn, of Hilton Head Island, for Appellant.

Leo A. Dryer, Jr., of Columbia, for
Respondent.

PER CURIAM:  James
Brady appeals the trial court’s order finding him liable on a contract with Savannah Architectural Supply, Inc.
(Savannah Architectural).  We affirm.[1]

FACTS

In 1986, Brady and another
individual formed Boru Enterprises, Inc., which did business under the trade
name Brady Builders.  Brady was also president of Boru Enterprises.  In
1999, Rick Bohrer, an employee of Boru Enterprises, requested a quote from
Savannah Architectural on behalf of Brady Builders.  As a result,
Savannah Architectural opened an account for Brady Builders. Construction
materials amounting to $43,602.47,[2] were ordered
on the account between June 21, 1999 and March 21, 2001.  No payment was
made and Savannah Architectural brought suit against Brady personally.  Brady
answered asserting he was employed by Boru Enterprises, and thus, not
personally liable.  Brady also stated Boru Enterprises was no longer actively
conducting business. 

At trial, Chester Gayheart, the president
of Savannah Architectural, testified Brady had been a customer of Savannah
Architectural since 1995.  Additionally, Gayheart testified he believed
he was dealing with a sole proprietorship Brady owned and was unaware of the
existence of Boru Enterprises.  As evidence, Savannah
Architectural offered (1) draw requests submitted by Brady Builders and signed
by Brady with no corporate designations regarding the project for which the
materials Savannah Architectural provided were used; (2) copies of a cashier’s
check issued jointly to Brady Builders and itself by one of Brady Builder’s
customers, which did not reference Boru Enterprises; and (3) several of its
invoices addressed to Brady Builders for the construction materials.  Further, Brady testified he regularly signed his name without designating himself as
a corporate officer.  However, Gayheart admitted Savannah Architectural
had not seen the draw requests at the time it provided the construction
materials to Brady Builders.

The trial court found Boru Enterprises was
an undisclosed principal, and thus, Brady was liable as an agent for the amount
due and interest.  Approximately a month after the trial court issued
its order, Brady filed a Rule 60(b), SCRCP, motion for relief from judgment.  Brady asserted he had newly discovered evidence in the form of a check paid
to Savannah Architectural that noted Brady Builders was a division of Boru
Enterprises.  The trial court denied the motion finding the check was not newly
discovered evidence because it was in Brady’s own records and he was aware of
its existence prior to trial.  This appeal followed.

STANDARD OF REVIEW

“An
action on an open account is an action at law.”  Spartanburg Reg’l
Med. Ctr. v. Bulsa, 308 S.C. 322, 323, 417 S.E.2d 648, 649 (Ct. App.
1992).  On appeal of an action at law tried without a jury, this court’s review
is limited to correction of errors at law.  Epworth Children’s Home v.
Beasley, 365 S.C. 157, 164, 616 S.E.2d 710, 714 (2005).  The
trial court’s findings are equivalent to a jury’s findings in a law action.  King
v. PYA/Monarch, Inc., 317 S.C. 385, 389, 453 S.E.2d 885, 888 (1995). 
Questions regarding credibility and weight of evidence are exclusively for the
trial court.  Sheek v. Crimestoppers Alarm Sys., 297 S.C. 375, 377,
377 S.E.2d 132, 133 (Ct. App. 1989).  “We must look at the evidence in the
light most favorable to the respondents and eliminate from consideration all
evidence to the contrary.”  Id.

LAW/ANALYSIS

I.  Liability

Brady
contends the trial court erred in granting judgment against him after finding
Bohrer was an agent for Boru Enterprises, an undisclosed principal.  We
disagree.

“An agent is one appointed by a principal as his
representative and to whom the principal confides the management of some business to be transacted in the principal’s name, or on his
account, and who brings about or effects legal relationships between the principal and third parties.”  Colleton County Taxpayers Ass’n v. Sch. Dist. of Colleton County, 371
S.C. 224, 239, 638 S.E.2d 685, 693 (2006).  If an agent did not disclose
his principal when making a contract with a party, the party, upon discovering
the principal, may hold either the agent or the principal liable.  See Goodale
v. Page, 92 S.C. 413, 416, 75 S.E. 700, 701 (1912); see
also Broom v. Marshall, 284 S.C. 530, 540, 328 S.E.2d 639,
645 (Ct. App. 1984) (Gardner, J. dissenting) (quoting 3 C.J.S. Agency § 369 (1973)) (“An agent . . . if he contracts as agent for an undisclosed principal, will be personally liable unless
there is a mutual intention of the parties to the contrary.”); Restatement
(Third) of Agency § 6.03 (2006) (“When
an agent acting with actual authority makes a contract on behalf of an
undisclosed principal, (1) unless excluded by the contract, the principal is a party to the
contract; [and] (2) the agent and the third party are parties to the contract .
. . .”).  “A principal
is undisclosed if, when an agent and a third party interact, the third party
has no notice that the agent is acting for a principal.”  Restatement
(Third) of Agency § 1.04(2)(b) (2006).

Brady routinely did
business with Savannah Architectural as an agent of Boru Enterprises.  However,
Savannah Architectural had no indication Brady was acting on behalf of a corporation. 
Therefore, Boru Enterprises was an undisclosed principal, and thus, Brady can
be held liable as its agent.  Accordingly, the trial court did not err in
finding Brady personally liable for the debt.

II.  Rule 60(b), SCRCP,
Motion

Brady maintains the
trial court erred in failing to grant his Rule 60(b), SCRCP, motion.  We
disagree.

The
decision to deny a motion under
Rule 60(b) is within the trial court’s sound discretion.  Raby Constr.,
L.L.P. v. Orr, 358 S.C. 10, 17, 594 S.E.2d 478, 482 (2004).  An abuse of discretion occurs when the
trial court’s decision is controlled by an error of law or is based on factual
findings lacking evidentiary support.  Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.
App. 2004).

On
motion and upon such terms as are just, the court may relieve a party
from a final judgment, order, or proceeding for newly discovered evidence that
by due diligence could not have been discovered in time to move for a new trial
under Rule 59(b), SCRCP.  Rule 60(b)(2), SCRCP. 

To
obtain a new trial based on newly discovered evidence, a movant must establish
that the newly discovered evidence: (1) will probably change the result if a new trial is granted; (2) has been
discovered since the trial; (3) could not have been discovered before the
trial; (4) is material to the issue; and (5) is not merely cumulative or
impeaching.

Lanier v. Lanier, 364 S.C. 211, 217, 612 S.E.2d 456, 459 (Ct.
App. 2005).  When the party knew of and possessed evidence at the time of trial,
it is not newly discovered for the purposes of Rule 60(b)(2).  Lanier,
364 S.C. at 218, 612 S.E.2d at 459.

“Rule
60(b)(2) allows the court to grant a new trial only if the newly discovered
evidence could not have been discovered by due diligence prior to trial.”  Lanier,
364 S.C. at 220, 612 S.E.2d at 460.  Due diligence is the “diligence reasonably
expected from, and ordinarily exercised by, a person who seeks to satisfy a
legal requirement or to discharge an obligation.”  Id. “Diligence looks
not to what the litigant actually discovered, but what he or she could have discovered.”  Id.  Accordingly, when parties could
have discovered the new evidence prior to trial, they are not entitled to
relief under Rule 60(b)(2).  See Raby Constr., L.L.P., 358 S.C.
at 21, 594 S.E.2d at 484 (citing Bowman v. Bowman, 357 S.C. 146, 152, 591
S.E.2d 654, 657 (Ct. App. 2004)).

In
the present case, the check was in Boru Enterprises’ records.  Simply because
those records were in a state of disarray does not change the fact Brady had
access to them before trial.  This court has previously found “[w]hen a party
simply misplaces evidence at home, the court will treat the failure to discover
it as a failure to exercise due diligence.”  Lanier, 364 S.C. at 220,
612 S.E.2d at 461.  Here, Brady testified as to the existence of such a check
at trial.  Accordingly, he knew of the check and had access to Boru
Enterprises’ records.  Therefore, the check did not constitute newly discovered
evidence.  Further, because Brady could have discovered the check prior to
trial, he failed to exercise due diligence.   Consequently, the trial court did
not err in denying Brady’s Rule 60(b), SCRCP, motion.

CONCLUSION

Based
on the foregoing, the order of the trial court is

AFFIRMED.

HEARN,
C.J., and SHORT and KONDUROS, JJ., concur.

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

[2] The parties stipulated to this amount.