Fast Formliners Company v. Construction Resource Group, Inc.

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

Fast Formliners Company, Appellant-Respondent,

v.

Construction Resource Group, Inc., Respondent-
Appellant.

Appellate Case No. 2023-000572

Appeal From Union County
Daniel Dewitt Hall, Circuit Court Judge

Unpublished Opinion No. 2025-UP-122
Heard February 12, 2025 – Filed April 2, 2025

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Thomas H. Coker, Jr. and Christopher B. Major, both of
Haynsworth Sinkler Boyd, PA, of Greenville, for
Appellant-Respondent.

Matthew Elliot Cox, of Smith, Currie & Handcock LLP,
of Charlotte, North Carolina and Stephen Edward
Buckingham, of the Law Office of Steven Edward
Buckingham, of Greenville, for Respondent-Appellant.
PER CURIAM: Both parties have appealed in this case about allegedly defective
constructive materials. Fast Formliners Company (Formliners) appeals the circuit
court's order denying its motion for attorney's fees, costs, and prejudgment interest.
Construction Resource Group, Incorporated (Construction Resource) challenges the
circuit court's denial of its motion for a new trial and to offset the verdict. As
explained below, we agree with Formliners and disagree with Construction
Resource. Accordingly, we affirm in part, reverse in part, and remand for a proper
evaluation of Formliners' motion for attorney's fees, costs, and prejudgment interest.

STANDARD OF REVIEW

The decision to award or deny attorney's fees, costs, and prejudgment interest will
not be disturbed unless the circuit court abused its discretion. Maybank v. BB&T
Corp., 416 S.C. 541, 579–80, 787 S.E.2d 498, 518 (2016); Historic Charleston
Holdings, LLC v. Mallon, 381 S.C. 417, 435, 673 S.E.2d 448, 457–58 (2009) ("The
award of prejudgment interest will not be disturbed on appeal unless the trial court
committed an abuse of discretion.").

Similarly, decisions regarding the admissibility of evidence and the denial of a new
trial will not be disturbed unless the circuit court abused its discretion. See State v.
Hatcher, 392 S.C. 86, 91, 708 S.E.2d 750, 753 (2011) ("The admission of evidence
is within the discretion of the trial court and will not be reversed absent an abuse of
discretion." (quoting State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265
(2006))); James v. Horace Mann Ins. Co., 371 S.C. 187, 193, 638 S.E.2d 667, 670
(2006) ("The denial of a motion for a new trial nisi is within the trial court's
discretion and will not be reversed on appeal absent an abuse of discretion."); State
v. Galbreath, 359 S.C. 398, 402, 597 S.E.2d 845, 847 (Ct. App. 2004) ("[W]he[n]
the motion [for a new trial] is based upon allegations that a juror gave misleading or
incomplete answers during voir dire, the trial court's denial of that motion will be
affirmed absent a prejudicial abuse of discretion.").

"An abuse of discretion occurs when the conclusions of the trial court either lack
evidentiary support or are controlled by an error of law." Hatcher, 392 S.C. at 91,
708 S.E.2d at 753 (quoting Pagan, 369 S.C. at 208, 631 S.E.2d at 265). An abuse
of discretion also occurs when the circuit court fails to exercise discretion. Fontaine
v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is
vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an
error of law has occurred."); see also Johnson v. Johnson, 296 S.C. 289, 304, 372
S.E.2d 107, 115 (Ct. App. 1998) ("A decision lacking a discernible reason is
arbitrary and constitutes an abuse of discretion.").
FORMLINERS' APPEAL

It is undisputed that the contract contained a provision allowing the prevailing party
to recover attorney's fees if litigation arose under the contract. We have no difficulty
deciding Formliners was the prevailing party in this case. See Sloan v. Friends of
Hunley, Inc., 393 S.C. 152, 156, 711 S.E.2d 895, 897 (2011), petitions for cert. filed,
March 14 and 18, 2025 (defining a prevailing party as "'one who successfully
prosecutes an action or successfully defends against it, prevailing on the main issue,
even [if] not to the extent of the original contention[,] [and] is the one in whose favor
the decision or verdict is rendered and judgment entered." (third alteration in
original)). Formliners brought this action alleging Construction Resource breached
the contract by failing to pay outstanding invoices. The jury awarded Formliners
$112,792 in damages, which was the full amount of the unpaid invoices. Formliners
also successfully defended against Construction Resource's counterclaim. As a
result, Formliners is entitled to a reasonable award of attorney's fees because it was
the prevailing party.

"Our case law and court rules make clear that when a contract or statute authorizes
an award of attorney's fees, the trial court must make specific findings of fact on the
record for each of the required factors to be considered." Portrait Homes-S.C., LLC
v. Pa. Nat'l Mut. Cas. Ins. Co., 442 S.C. 515, 594, 900 S.E.2d 245, 288 (Ct. App.
2023) (quoting Griffith v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534–35
(Ct. App. 1998)). In determining reasonable attorney's fees, the court should
consider the following factors: "1) nature, extent, and difficulty of the legal services
rendered; 2) time and labor devoted to the case; 3) professional standing of counsel;
4) contingency of compensation; 5) fee customarily charged in the locality for
similar services; and 6) beneficial results obtained." Blumberg v. Nealco, Inc., 310
S.C. 492, 494, 427 S.E.2d 659, 660 (1993). "[A]bsent sufficient evidentiary support
on the record for each factor, the award should be reversed and the issue remanded
for the trial court to make specific findings of fact." Id. at 494, 427 S.E.2d at 661.

Here, the circuit court did not make any of the required factual findings. After a
hearing, the court issued a Form 4 Order stating, "After careful consideration, the
court rules that . . . [Formliners'] Motion for Attorney's Fees, Costs, and Interest is
[denied]." We have no choice but to find that the circuit abused its discretion by not
undertaking the proper analysis. See Johnson, 296 S.C. at 304, 372 S.E.2d at 115
("A decision lacking a discernible reason is arbitrary and constitutes an abuse of
discretion."); see also Burton v. York Cnty. Sheriff's Dep't, 358 S.C. 339, 358, 594
S.E.2d 888, 898 (Ct. App. 2004) ("In its order, the trial court addresse[d] the request
for attorney's fees in a wholly conclusory fashion . . . . The court did not consider
or enter findings for the factors . . . as mandated by our [s]upreme [c]ourt. We must,
therefore, remand this matter to the trial court for a full and proper consideration of
the attorney's fees request.").

The same reasoning applies to Formliners' request for costs. Rule 54(d) of the South
Carolina Rules of Civil Procedure provides: "[C]osts shall be allowed as of course
to the prevailing party unless the court otherwise directs . . . ." Rule 54(d), SCRCP;
see also Peterson v. Nat'l R.R. Passenger Corp., 365 S.C. 391, 402, 618 S.E.2d 903,
908 (2005) ("[Rule 54(d)] recognize[s] that the prevailing party shall be allowed
costs per a trial court's ruling."). Again, the circuit court did not provide any
reasoning for its ruling. Accordingly, we find that the circuit court abused its
discretion in denying Formliners' motion for costs. See Fontaine, 291 S.C. at 538,
354 S.E.2d at 566 ("When the trial judge is vested with discretion, but his ruling
reveals no discretion was, in fact, exercised, an error of law has occurred.").

Formliners also asked the circuit court to award prejudgment interest. A party
seeking prejudgment interest must have included the request in its pleadings. Dixie
Bell, Inc. v. Redd, 376 S.C. 361, 368, 656 S.E.2d 765, 768 (Ct. App. 2007). "The
proper test for determining whether prejudgment interest may be awarded is whether
or not the measure of recovery, not necessarily the amount of damages, is fixed by
conditions existing at the time the claim arose." Id. at 372, 656 S.E.2d at 771
(quoting Babb v. Rothrock, 310 S.C. 350, 353, 426 S.E.2d 789, 791 (1993)). "Stated
another way, prejudgment interest is allowed on a claim of liquidated damages; i.e.,
the sum is certain or capable of being reduced to certainty based on a mathematical
calculation previously agreed to by the parties." Butler Contracting, Inc. v. Ct. St.,
LLC, 369 S.C. 121, 133, 631 S.E.2d 252, 258–59 (2006).

In Smith-Hunter Construction Co. v. Hopson, our supreme court affirmed an award
of prejudgment interest on a breach of contract claim finding "the amount owed to
Builder '[was] capable of being reduced to a sum certain'" because the damages were
established by the builder's invoices. 365 S.C. 125, 128–29, 616 S.E.2d 419, 421
(2005). Here, Formliners included prejudgment interest in its prayer for recovery.
As in Smith-Hunter, Formliners' measure of damages was determined by the amount
of the unpaid invoices. The jury awarded the full amount of the unpaid invoices as
damages. In our view, Formliners' claim was not only fixed at the time the complaint
was filed, but it was reduced to certainty as the measure and amount of damages
were determined by the invoices presented at trial. See Robert E. Lee & Co. v.
Comm'n Pub. Works of City of Greenville, 248 S.C. 92, 100, 149 S.E.2d 59, 63
(1996) (holding the circuit court erred in not awarding prejudgment interest when
the claim was "certain and liquidated").
We respectfully reject Construction Resource's argument that Formliners did not
properly raise these issues to the circuit court and did not properly perfect this appeal.
Our reading of the record convinces us that the parties agreed the circuit court would
consider the issue of fees, costs, and interest after the jury adjudicated the competing
breach of contract claims. The lawyers referenced this at trial. Formliners' motion
requesting this relief was filed in a timely fashion after the jury's verdict, and its
motion asking the circuit court to reconsider the denial of fees, costs, and interests
was also timely.

For these reasons, we reverse and remand the circuit court's denial of Formliners'
motion for attorney's fees, prejudgment interest, and costs.

CONSTRUCTION RESOURCE'S APPEAL

Construction Resource's appeal consists of three arguments, the first of which is that
it is entitled to a new trial because a juror allegedly concealed material information
during voir dire.

Our supreme court recently held:

A juror's bias may not be presumed, and a new trial may
be ordered only when prejudice is proven by showing the
concealed information reveals a potential for bias and
would have made an objectively material difference in the
moving party's use of a peremptory strike or resulted in a
successful challenge for cause.

State v. Rowell, 444 S.C. 109, 115–16, 906 S.E.2d 554, 557 (2024). Under this
standard, "[w]here a party claims a juror has withheld material information in
response to a voir dire question, the trial court must determine, preferably after a
hearing, whether the juror's withholding suggests bias." Id. at 115, 906 S.E.2d at
557. "This will typically turn on the nature of the information withheld, rather than
the juror's state of mind in not disclosing it." Id. That said, the standard does not
require "a full-blown evidentiary hearing based on the mere allegation of juror
[concealment]." Id. at 116, 906 S.E.2d at 558.

It is not clear that Rowell applies to this case. Rowell was decided long after this
case was tried and nobody challenged to the procedure the circuit court used here.
The circuit court held a posttrial hearing on Construction Resource's motion for a
new trial. At that hearing, Construction Resource had the burden to present evidence
in support of its juror concealment claim. See State v. Tucker, 423 S.C. 403, 414,
815 S.E.2d 467, 472 (Ct. App. 2018) ("As the party alleging misconduct, [the
movant] bore the burden of proving [the juror] was biased or otherwise lacked ability
to follow her oath."). Construction Resource's evidence of bias consisted of two
affidavits. Both affidavits suggested that Jimmy Belue, a Construction Resource
employee, was married to someone whose best friend at work was on the jury and
informed Belue's wife that Construction Resource had lost the suit.

We respectfully reject the argument that there is a valid claim for juror concealment
in this case. The voir dire question at issue was not a model of clarity, and nothing
suggests the juror in question was potentially biased against Construction Resource.
Indeed, one might reasonably infer that if the juror's friendship with the wife of a
Construction Resource employee suggests any potential for bias, it would suggest
bias in Construction Resource's favor. There was no information directly from the
juror or even from Mrs. Belue, and nobody asked the court to examine the juror for
bias. We point this out only for the purpose of emphasizing that the request for a
new trial hinged on second and thirdhand affidavits that, at best, support an
attenuated connection to Construction Resource and no potential for bias against it.

Construction Resource's second argument is that the circuit court should have offset
the jury's verdict by the expenses Construction Resource incurred as a result of the
allegedly defective materials Formliners provided. Construction Resource's brief
cites no authority, and we are aware of none, allowing a court to offset the successful
verdict on a breach of contract case in this way. Rather, the South Carolina
Commercial Code makes clear that a buyer is only entitled to purchase cover goods
"[a]fter a breach occurs." S.C. Code Ann. § 36-2-712(1) (2003). The jury
determined Construction Resource breached the contract and that Formliners did
not.

Construction Resource's final argument is that the circuit court erred in admitting
video of its production facility into evidence. Here, we are guided by the fact that
"there is no canon against using common sense in construing laws as saying what
they obviously mean." Roschen v. Ward, 279 U.S. 337, 339 (1929) (Holmes, J.).
Construction Resource contends the video violates the South Carolina Homeland
Security Act, but that act applies "[w]henever any wire, oral, or electronic
communication has been intercepted." S.C. Code Ann. § 17-30-65(A) (2014). The
act also clearly states that a cell phone used in the ordinary course of the user's
business does not qualify as an "apparatus which can be used to intercept a wire,
electronic, or oral communication." S.C. Code Ann. § 17-30-15(4)(a)(i) (2014)
("'Electronic, mechanical, or other device' means any device or apparatus which can
be used to intercept a wire, electronic, or oral communication other than: (a) any
telephone or telegraph instrument, equipment, or facility, or any component thereof:
(i) furnished to the subscriber or user by a provider of wire or electronic
communication service in the ordinary course of its business and being used by the
subscriber or user in the ordinary course of its business . . . .").

It is undisputed that the challenged videos were recorded by Petr Loudil, a
Formliners employee. It is also undisputed that the challenged videos were recorded
on Loudil's cell phone. The record reflects that the parties arranged for a Formliners
representative to visit Construction Resource's facility when problems arose with the
construction materials at issue. Loudil explained that he needed to document his
observations because "when you go into places like this, you can't just look at it and
say 'oh, yeah, that's your problem.' I was there to see the whole process to make sure
I understand . . . if it's [Formliners'] problem or it's [Construction Resource's]
problem." The circuit court redacted any audio that Loudil captured during the
recording. We see no "interception" of wire, oral, or electronic communication and
no basis under this act to exclude this evidence.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMAS, KONDUROS, and HEWITT, JJ., concur.