Collins Music v. Lambrou

• Court: Court of Appeals of South Carolina
• Decided: July 8, 2003
• Docket: 2003-UP-460
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Collins Music Company,        Respondent/Appellant,

v.

John K. Lambrou, James Manos, Mark Petropoulos, and Frontier Amusement Co.,        Defendants,

and

W.A. Davis,        Third-Party Defendant,

Of whom Mark Petropoulos is        Appellant/Respondent,

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Appeal From Greenville County
John C. Hayes, III, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-460
Heard April 8, 2003 – Filed July 8, 2003

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REMANDED

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Jeffery Falkner Wilkes, of Greenville, for Appellant/Respondent.

Russell D. Ghent, of Greenville and Scott Michael Mongillo, of Mt. Pleasant, for Respondent/Appellant.

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PER CURIAM:  Collins Music Company (“Collins”) entered into an exclusive contract with John Lambrou to provide video-gaming equipment to Lambrou’s restaurant and bar business.  Collins was ordered to remove the equipment from the business location after Lambrou leased his business premises to Mark Petropoulos.  Collins then sued Lambrou for breach of contract and Petropoulos for tortious interference with contractual relations.  A jury returned verdicts in favor of Collins on both causes of action.  Petropoulos moved for judgment notwithstanding the verdict (“JNOV”) and a new trial, both of which were denied. Petropoulos appeals, arguing the circuit court erred by denying his motions for JNOV and a new trial.  Petropoulos also argues allowing Collins to enforce the judgment against him would grant an impermissible double recovery.  We remand.

FACTUAL/PROCEDURAL BACKGROUND

Lambrou operated a restaurant/bar known as “The Hourglass” (“the business”). Collins operated a video-amusement-device business.  In 1988, Lambrou and Collins contracted to make Collins the sole provider of video-gaming devices for the business (“the Lambrou contract”). The Lambrou contract states that if Lambrou sold or assigned his interest in the business, Lambrou would provide for the assumption of its terms by the purchaser.

On February 20, 1995, Lambrou and Petropoulos entered into a lease contract (“the lease contract”) whereby Petropoulos became the successor to the Lambrou contract.  The lease contract specified Petropoulos agreed to fulfill Lambrou’s contractual obligations under the Lambrou contract.

Subsequently, Petropoulos removed Collins’ machines and contracted with Frontier Amusement Company (“Frontier”) to provide video-gaming devices for Petropoulos’ business, “The New Hourglass” (“the new business”). 

Collins sued Lambrou, Petropoulos, and Frontier for breach of contract and Petropoulos for tortious interference with contractual relations, [1] and a jury awarded Collins $33,433.85 against Lambrou for breach of contract and $33,433.85 against Petropoulos for tortious interference with contractual relations.  Petropoulos filed motions for JNOV and a new trial, which were denied. 

Subsequently, Lambrou settled with Collins, agreeing to pay Collins $44,905.00.  Petropoulos appeals, arguing the circuit court erred by denying his motion for JNOV and a new trial.  Additionally, he argues permitting Collins to collect judgment for tortious interference with contractual relations would allow Collins an impermissible double recovery. [2]

LAW/ANALYSIS

I.       Motion for JNOV

Petropoulos argues the circuit court erred by denying his motion for JNOV because no evidence exists in the record to support Collins’ claim for tortious interference with contractual relations. [3]   We disagree.

“In ruling on motions for directed verdict or judgment notwithstanding the verdict, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions.”  Steinke, 336 S.C. at 386, 520 S.E.2d at 148.  “The trial court must deny the motions when the evidence yields more than one inference or its inference is in doubt.”  Welsh v. Epstein, 342 S.C. 279, 300, 536 S.E.2d 408, 418 (Ct. App. 2000) (“This Court will reverse the trial court only when there is no evidence to support the ruling below.”  Id.; Mahaffey v. Ahl, 264 S.C. 241, 246, 214 S.E.2d 119, 121 (1975) (“It is elementary that in considering whether the court below erred in refusing [a motion for JNOV] . . . we must view the evidence and the inferences reasonably deducible therefrom in a light favorable to the respondent.”).  

“To establish an action for intentional interference with a contract, the plaintiff must establish (1) the existence of the contract;  (2) the wrongdoer’s knowledge of the contract; (3) the intentional procurement of its breach;  (4) the absence of justification; and (5) resulting damages.”  Todd v. South Carolina Farm Bureau Mut. Ins. Co., 287 S.C. 190, 192-93, 336 S.E.2d 472, 473 (1985).

The Lambrou contract was for a six-year term and was automatically renewed for an additional term of one year unless cancelled with written notice sixty days prior to the renewal date.

Petropoulos signed a lease contract, agreeing to assume the provisions of the Lambrou contract, even though neither he nor Lambrou were aware of its provisions. [4]   Petropoulos testified he attempted on several occasions to obtain a copy of the Lambrou contract from Collins.  Petropoulos further testified Collins would not release a copy of the contract to him, claiming he was not a party to the contract. 

Collins did finally send Petropoulos a copy of the Lambrou contract.  However, it was not received until the automatic renewal provision was activated.  Petropoulos then asked Collins to remove his machines from the premises and contracted with Frontier to place its coin-operated machines on the property. 

Initially, Petropoulos contends Collins had actual notice of Lambrou’s intention to terminate the Lambrou contract.  Thus, he claims the termination provisions were substantially met, and no breach occurred.  Petropoulos’ argument is conclusory and fails to cite any supporting authority for its propositions.  Therefore, this issue is abandoned on appeal.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (holding the failure to provide arguments or supporting authority for an issue renders it abandoned); Glasscock, Inc. v. U.S. Fidelity and Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) (“South Carolina law clearly states that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.”).  

Petropoulos next contends no evidence exists to support a finding Petropoulos intentionally procured the breach of the Lambrou contract, and even if there was an intentional procurement of the breach, a justification existed.

Petropoulos testified he knew a contract existed between Lambrou and Collins.  Additionally, Petropoulos testified he knew the Lambrou contract was renewed prior to the time he ordered Collins to remove his machines and contracted with Frontier. These facts demonstrate some evidence to support a finding Petropoulos intentionally procured the breach of the Lambrou contract.

Petropoulos contends if he procured the breach, he was justified in doing so because Collins withheld the Lambrou contract from him until it was automatically renewed.  Assuming without deciding this assertion would constitute a valid defense, Petropoulos’ argument is without merit.

Bill Morris, a collector for Collins, testified he could not remember if Petropoulos ever requested a copy of the Lambrou contract.  Additionally, Jamie Livingston, the Assistant Controller for Branch Accounting at Collins, testified none of the collection worksheets in Lambrou’s file at Collins indicated Petropoulos requested a copy of the Lambrou contract. 

This evidence is sufficient to create an inference either Petropoulos did not request a copy of the Lambrou contract, or Collins did not receive the request.  See Flowers v. South Carolina Dept. of Highways and Pub. Transp., 309 S.C. 76, 78, 419 S.E.2d 832, 833 (Ct. App. 1992) (holding evidence of a negative character is sufficient to support a finding); 32A C.J.S. Evidence § 1037, at 715-17 (1964); see also Fed. R. Evid. 803(7) (stating the hearsay rule does not exclude evidence indicating the nonoccurrence or nonexistence of a matter based on a report kept in the course of regularly-conducted-business activity).  Therefore, the jury could have found Petropoulos never requested a copy of the Lambrou contract and thereby lacked justification for procuring its breach.

Because the evidence within the record is sufficient to support more than one inference, the circuit court did not err in submitting the question to the jury.  See Steinke, 336 S.C. at 386, 520 S.E.2d at 148 (holding the circuit court must deny a motion for JNOV where the evidence yield more than one inference).

II.      Double Recovery

Petropoulos argues the jury’s award of $33,433.85 against Lambrou for breach of contract and $33,433.85 against Petropoulos for intentional interference with contractual relations is an impermissible double recovery.  We agree.

“It is well settled in this state that ‘there can be no double recovery for a single wrong[,] and a plaintiff may recover his actual damages only once.’”  See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) (quoting Taylor v. Hoppin’ Johns, Inc., 304 S.C. 471, 475, 405 S.E.2d 410, 412 (Ct. App. 1991)). 

A breach of contract claim allows for recovery of damages that are the direct and natural consequence of the breach or for damages within the contemplation of the contracting parties.  Collins, 332 S.C. at 147-48, 503 S.E.2d at 482.  Claims for interference with a contract allow recovery for the pecuniary loss of the benefits of the contract, consequential losses that were caused by the interference with the contract, and emotional distress or harm to reputation if these damages are reasonably expected to result from the interference.  Id.  Actual damages under breach of contract claims and interference with contract claims are coextensive.  Id.  Thus, if the plaintiff fails to plead or prove damages in addition to actual damages, and the plaintiff receives verdicts for both breach of contract and interference with contractual relations, the circuit court is required to reform the judgment for one single damages award against both defendants.  See Nichols v. State Farm Mut. Auto Ins. Co., 279 S.C. 336, 340-41, 306 S.E.2d 616, 619 (1983) (holding the circuit court acted properly by reforming the verdict and striking the damages award for one cause of action to avoid a double recovery), superceded by statute on other grounds as stated in, Duncan v. Provident Mut. Life Ins. Co. of Philadelphia, 310 S.C. 465, 427 S.E.2d 657 (1993); Collins, 332 S.C. at 148, 503 S.E.2d at 482 (holding the circuit court did not err in entering a single judgment against two defendants for separate causes of action where the damages awards were coextensive); Inman v. Imperial Chrysler-Plymouth, Inc., 303 S.C. 10, 15, 397 S.E.2d 774, 777 (Ct. App. 1990) (holding circuit court has affirmative duty to require election of remedies where it allows the plaintiff to present two causes of action to the jury and the damages awards are coextensive).

Collins’ amended complaint pled causes of action for breach of contract, intentional interference with contractual relations, and violations of the UTPA.  As to the breach of contract, Collins prayed for injunctive relief and actual, as well as consequential damages.  As to the causes of action for intentional interference with contractual relations and violations of the UTPA, Collins prayed for actual, consequential, and punitive damages. [5]  

At trial, Collins introduced expert testimony indicating its actual damages were $53,589.48 or $73,924.64, depending on the method of calculation.  However, irrespective of the method employed, Collins only presented evidence of damages from lost profits naturally flowing from the breach of contract.  Collins did not introduce evidence demonstrating consequential damages. 

The circuit court submitted a verdict form to the jury.  The verdict form required the jury to either find for the plaintiff or for a particular defendant on each cause of action.  Further, it required the jury to state the amount of actual and punitive damages awarded, if any, for each cause of action.  The circuit court did not charge the jury on double recovery.

The jury awarded Collins $33,433.85 against Lambrou for actual damages stemming from the breach of contract and $33,433.85 against Petropoulos for actual damages stemming from the claim for intentional interference with contractual relations.  The jury did not award punitive damages.  Petropoulos did not make a motion for clarification.

Under these circumstances, the jury’s damage awards were duplicative because Collins did not prove damages other than those naturally flowing from the breach of contract.  Thus, the circuit court should have reformed the verdict to reflect one judgment against both defendants.  Nichols, 279 S.C. at 340-41, 306 S.E.2d at 619; Collins, 332 S.C. at 148, 503 S.E.2d at 482; Inman, 303 S.C. at 15, 397 S.E.2d at 777.  Consequently, we believe the appropriate remedy is to reform the verdict so as to render one judgment for $33,433.85 to which both defendants are jointly and severally liable.  See Ross v. Holton, 640 S.W.2d 166, 173 (Mo. Ct. App. 1982) (holding joint and several liability is appropriate where two defendants, one of whom is liable for breach of contract, and the other of whom is liable for tortious interference with contractual relations, cause coextensive damages to the plaintiff); Bermil Corp. v. Sawyer, 353 So.2d 579, 585 (Fla. Dist. Ct. App. 1977).

Furthermore, Lambrou has paid, and Collins has accepted, full payment for its actual damages stemming from its single loss of profits.  Thus, Collins’ damage award has been satisfied.  Consequently, we remand with instructions for the circuit court to reform the verdict and enter satisfaction of the judgment.

CONCLUSION

For the foregoing reasons, this case is remanded to the circuit court with instructions to reform the verdict and enter satisfaction.

REMANDED.

CURETON, GOOLSBY, and HOWARD, JJ., concurring.

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[1] Collins subsequently dismissed its action against Frontier.

[2] Collins filed a cross-appeal, arguing the circuit court erred by denying its motion for attorney’s fees and costs.  However, Collins agreed to dismiss its appeal prior to oral arguments.

[3] Alhtough Petropoulos argues the circuit court erred by denying his motion for a new trial, Petropoulos does not argue the verdict was excessive.  Rather, Petropoulos’ argument solely attacks the sufficiency of the evidence and is thus addressed only as a motion for JNOV.    Compare Steinke v. South Carolina Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999) (“In ruling on motions for directed verdict or judgment notwithstanding the verdict, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions.”) with Allstate Ins. Co. v. Durham, 314 S.C. 529, 530, 431 S.E.2d 557, 558 (1993) (“When a party moves for a new trial based on a challenge that the verdict is either excessive or inadequate, the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, or prejudice.”). 

[4] Although Petropoulos may be party to the Lambrou contract, and therefore could not interfere with the contract, Petropoulos did not argue this defense at trial or on appeal.  Therefore, this issue is not preserved for appellate review.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (an issue cannot be raised for the first time on appeal, but must have been raised to and ruled on by the circuit court to be preserved for appellate review); see also Ross v. Life Ins. Co. of Virginia, 273 S.C. 764, 766, 259 S.E.2d 814, 815 (1979) (holding an action for tortious interference with contractual relations protects the property rights of the parties to a contract against unlawful interference by third parties).  

[5] Collins’ cause of action for violations of the UTPA was dismissed on summary judgment.