Cason Companies, Inc. v. Gorrin

730 S.E.2d 887, 399 S.C. 150
CourtCourt of Appeals of South Carolina
DecidedJune 13, 2012
DocketNo. 4986
StatusPublished

This text of 730 S.E.2d 887 (Cason Companies, Inc. v. Gorrin) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cason Companies, Inc. v. Gorrin, 730 S.E.2d 887, 399 S.C. 150 (S.C. Ct. App. 2012).

Opinion

GEATHERS, J.

Appellants Joseph and Sharon Gorrín (Purchasers) contend the circuit court erred in denying their motion for a directed verdict, pursuant to section 37-2-413 of the South Carolina Code (2002), and, thereafter, in awarding attorney’s fees, costs, and expenses of $59,855.31 to Respondent Cason Companies, Inc. (Seller). We affirm.

[152]*152FACTS

Purchasers ordered 35,000 bricks from Seller to use in the construction of their new home. Thereafter, Seller denied credit to Purchasers’ general contractor. As a result, Purchasers executed a Personal Credit Application Form and requested credit of $5,000 for the purpose of buying bricks, mortar, and sand from Seller.

Seller’s Personal Credit Application Form stated that if Seller approved Purchasers’ Credit Application, Seller retained “the right not to extend credit to Purchaser at any time, particularly if the account is not paid in full each month.” Regarding Purchasers’ payment obligations and Seller’s collection rights upon Purchasers’ default, the Credit Application specified that [1] payment was due in full within thirty days of Seller’s invoice; [2] should payment in full not be made within thirty days, the account would be in default and would accrue finance charges; and [3] if Seller was required to exercise collection efforts, Purchasers were responsible for paying all of Seller’s attorney’s fees, costs, and expenses. The Credit Application stated:

Purchaser hereby agrees and promises to pay [Seller] for all services and materials purchased from [Seller], now or in the future, on this account. Purchaser understands that payments are due in full within thirty (30) days of the date of [Seller’s] invoice. [2] Should payments not be made within thirty (30) days, the account will be considered past-due and in default, and shall accrue finance charges of 18% per annum from the first day the account is past due, until payment is made in full. Purchaser agrees to pay these finance charges. [3] Purchaser also agrees to pay all [Seller’s] attorney[’]s fees, costs[,] and expenses. Each of the undersigned [Purchasers] agrees to pay court costs, and all other costs of collection allowed by law.

Purchasers also signed a “Guaranty Agreement,” in which they agreed: “In the event this account is placed in the hands of an attorney or attorneys for collection or suit instituted to collect some or any portion thereof, I, and/or we agree and promise to pay all [Seller’s] attorneys’ fees, costs[,] and expenses.”

[153]*153Seller approved Purchasers’ Credit Application and extended a $5,000 “line of credit” to Purchasers. From August 2005 through February 2006, Seller delivered bricks, sand, and mortar to Purchasers’ construction site. Seller sent Purchasers an invoice following each delivery; however, Purchasers failed to make payment. On February 25, 2006, Seller sent Purchasers an invoice showing a balance due of $23,780.80, of which $13,685.09 was more than ninety days past due. Purchasers told Seller that they would pay their account in full at closing.

On March 20, 2006, Purchasers closed on the loan for their new home; however, they made no payment to Seller. Moreover, Purchasers attested on their title insurance application: “There are no unpaid bills or claims for labor or services performed or material furnished or delivered during the last twelve months for alterations, repair work, or new construction on the above-described property.”

On January 25, 2007, Seller filed an action seeking payment of Purchasers’ account, plus interest, attorney’s fees, costs, and expenses. In June 2010, following a four-day trial, the jury awarded Seller actual damages of $49,856.46, which included the balance due on Purchasers’ account and finance charges. Seller then moved for attorney’s fees, costs, and expenses, pursuant to the terms of Purchasers’ Credit Application. Seller additionally filed an affidavit of attorney’s fees, expenses, and costs. Purchasers moved for a directed verdict on the issue of attorney’s fees, claiming their agreement with Seller established a consumer credit sale, pursuant to section 37-2-104 of the South Carolina Code (2002). As a result, Purchasers contended the attorney’s fees provisions of the Credit Application and Guaranty Agreement were void ab initio, pursuant to section 37-2-413(1) of the South Carolina Code (2002), which limits attorney’s fees with respect to consumer credit sales and consumer leases.

On September 15, 2010, the circuit court issued an order denying Purchasers’ motion for a directed verdict and awarded Seller attorney’s fees of $51,560, and expenses and costs of $8,295.31, for a total award of $59,855.31. This appeal followed.

[154]*154LAW/ANALYSIS

First, Purchasers contend that each of their transactions is properly classified as a “consumer credit sale,” as defined in section 87-2-104 of the South Carolina Code (2002). Next, because section 37-2-418(1) of the South Carolina Code (2002) limits attorney’s fees related to consumer credit sales and consumer leases, Purchasers maintain the provisions regarding attorney’s fees in the Credit Application and Guaranty Agreement were “void ab initio.” The circuit court concluded that the Credit Application did not establish a consumer credit sale, and, therefore, section 37-2-413 did not apply. We agree.

A “consumer credit sale” is defined as:

[A] sale of goods, services, or an interest in land in which
(a) Credit is granted by a person who regularly engages as a seller in credit transactions of the same kind,
(b) The buyer is a person other than an organization,
(c) The goods, services, or interest in land are purchased primarily for a personal, family or household purpose,
(d) Either the debt is payable in installments or a credit service charge is made, and
(e) With respect to a sale of goods or services, the amount financed does not exceed twenty-five thousand dollars.

S.C.Code Ann. § 37-2-104(1) (2002).

“The court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute’s operation.” Auto Owners Ins. Co. v. Rollison, 378 S.C. 600, 609, 663 S.E.2d 484, 488 (2008). Purchasers’ argument for establishing a consumer credit sale transaction fails with the analysis of § 37-2-104(l)(d) — payment of debt. In a consumer credit sale, “either the debt is payable [1] in installments or [2] a credit service charge is made.” S.C.Code Ann. § 37-2-104(l)(d) (2002). Seller asserts that its Credit Application authorized neither method of debt payment. The circuit court found that the “credit service charge,” as defined in section 37-2-104(l)(d), was not equivalent to the payment of finance charges precipitated by default, as required by the Credit Application. Furthermore, because the outstanding debt was required to be paid in full within [155]*155thirty days of Seller’s invoice, the circuit court found the debt was not eligible to be paid “in installments.”

We compared the definition of a “credit service charge,” under the South Carolina Consumer Protection Code, with the express terms of the Credit Application.

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Related

Auto Owners Insurance v. Rollison
663 S.E.2d 484 (Supreme Court of South Carolina, 2008)
Wilder Corp. v. Wilke
497 S.E.2d 731 (Supreme Court of South Carolina, 1998)
Ellis v. Taylor
449 S.E.2d 487 (Supreme Court of South Carolina, 1994)

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Bluebook (online)
730 S.E.2d 887, 399 S.C. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cason-companies-inc-v-gorrin-scctapp-2012.