Waterpointe I Property Owner's Ass'n v. Paragon, Inc.

536 S.E.2d 878, 342 S.C. 454, 2000 S.C. App. LEXIS 142
CourtCourt of Appeals of South Carolina
DecidedJuly 24, 2000
DocketNo. 3227
StatusPublished
Cited by7 cases

This text of 536 S.E.2d 878 (Waterpointe I Property Owner's Ass'n v. Paragon, Inc.) 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
Waterpointe I Property Owner's Ass'n v. Paragon, Inc., 536 S.E.2d 878, 342 S.C. 454, 2000 S.C. App. LEXIS 142 (S.C. Ct. App. 2000).

Opinion

HEARN, Chief Judge:

In this action for breach of contract and failure to renew insurance, Paragon, Inc. appeals the master-in-equity’s failure to grant a directed verdict or enter judgment in its favor. We affirm.

[457]*457 FACTUAL/PROCEDURAL BACKGROUND

This action arises from a contract whereby Paragon, Inc. agreed to manage Waterpointe I Horizontal Property Regime, a high-rise condominium in North Myrtle Beach, South Carolina. In December 1988, Bob Johnston of Paragon presented Waterpointe’s Board of Directors with a copy of Paragon’s proposal. The proposal stated inter alia: “Included in Paragon’s routine services will be the supervision of all personnel, subcontractors, contract negotiation, insurance coverage coordination and purchase and other routine functions required in the day to day operation of the Association.” After reviewing the proposal, the Board voted that same day to accept Paragon as its new management company. Two Board members, Isidore Melekos and Patricia Wilkie, subsequently negotiated a contract with Paragon. Paragon assumed management of Waterpointe on January 1,1989.

At the April 15, 1989 Board meeting, Johnston requested budget amendments for certain improvements and repairs. The Board voted not to amend the budget and advised Johnston to abide by the December 1988 budget he had helped develop. The budget is derived from homeowner assessments, interest income and vending proceeds.

In August 1989 the Board discovered Johnston was overspending the budget. The very next month, Hurricane Hugo hit Myrtle Beach. Melekos testified he went to Waterpointe the day after Hugo and discovered Johnston had not taken action to protect Waterpointe from the storm. The electricity was still on. Both elevators were on the ground floor flooded with seawater and covered with sand. The ground floor, fence and gates, lattice work, decking, pool and pool furniture, carpet, and lobby were destroyed or heavily damaged.

The Board was not able to meet again until October. At its October meeting, the Board learned it had some accounts receivable and only a few hundred dollars in the Waterpointe account. Additionally, the Board discovered Johnston had spent the previous year’s reserve of $45,000.00. Moreover, Johnston informed the Board that Waterpointe did not have flood insurance to cover much of Hugo’s damage. This was the first time the Board learned there was no flood insurance in place.

[458]*458The Board fired Paragon in November and hired a CPA firm to undertake an audit of the way Paragon had spent Waterpointe’s money. On August 13, 1991, Waterpointe initiated this action against Paragon alleging various causes of action, including breach of contract and failure to renew insurance. Waterpointe sought damages of $25,490.00 on the breach of contract action and actual damages of $126,000.00 on the failure to renew insurance cause of action. Several causes of action were subsequently dismissed via motions by Paragon.

The case was heard by a master-in-equity on July 22 and 23, 1996. Paragon moved for a directed verdict at the close of Waterpointe’s case. The master declined to rule on the motion initially, and Paragon declined to put up any evidence. The master ultimately rendered judgment in favor of Waterpointe for $25,490.00 on the breach of contract cause of action, and $79,703.86 for failing to renew the flood insurance. Paragon appeals the master’s denial of its motion for directed verdict and the master’s failure to enter judgment in its favor.

LAW/ANALYSIS

Scope of Review

We note initially that while Paragon’s motion at the close of the evidence was couched as a “directed verdict” motion, governed by Rule 50, SCRCP, this was a non-jury action. As Rule 50 by its nature is applicable to jury trials, the proper motion for Paragon to have made was a motion for involuntary non-suit under Rule 41, SCRCP. “After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, ... may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Rule 41(b), SCRCP; see Ducworth v. Neely, 319 S.C. 158, 159 n. 1, 459 S.E.2d 896, 897 n. 1 (Ct.App.1995) (noting that motion styled directed verdict in non-jury action actually was a motion for involuntary non-suit under Rule 41(b), SCRCP, and therefore reviewing as such). Rule 41(b) allows the judge as fact finder to weigh the evidence and determine the facts. Johnson v. J.P. Stevens & Co., 308 S.C. 116, 118, 417 S.E.2d 527, 529 (1992). Therefore, Paragon’s appeal is from the master’s factual findings as a judge in a non-jury action at law. See [459]*459South Carolina Fed. Sav. Bank v. Thornton-Crosby Dev. Co., 310 S.C. 232, 235, 423 S.E.2d 114, 116 (1992) (stating an action seeking money damages for breach of contract is an action at law); Roberts v. Gaskins, 327 S.C. 478, 483, 486 S.E.2d 771, 773 (Ct.App.1997) (same). “In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge’s findings.” Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). Thus, this court must affirm if there is any evidence to support the master’s findings.

Failure to Renew Insurance

Paragon first contends the master erred in failing to enter judgment or to grant a directed verdict in its favor on the failure to renew insurance cause of action. Paragon’s argument is premised on the ground the failure to renew cause of action sounds in tort rather than in contract. We disagree.

Waterpointe’s complaint provides in pertinent part:

14. That the Defendant had a duty to care for, preserve and maintain the property of the Association and to insure that proper insurance coverages were in place to care for and preserve the property. That the contract, under Paragraph 3(b)(4) specifically allocates certain responsibilities concerning insurance coverage placements and renewals to the Manager, and the Board of Directors further, and specifically, allocated, directed and requested the Manager to undertake the placement of insurance coverages and the renewals of those that were so necessary.
15. That the defendant did undertake the responsibilities and obligations for the placement and renewal of all insurance coverages at the Association through the course of its ongoing Contract.
16. That the Defendant did fail to renew the underlying flood insurance coverage on the property of the Association for the year 1989, and as a result, when Hurricane Hugo struck the coast of South Carolina in September of 1989, the Association was without proper underlying flood insurance coverage.
[460]*46017.

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Bluebook (online)
536 S.E.2d 878, 342 S.C. 454, 2000 S.C. App. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterpointe-i-property-owners-assn-v-paragon-inc-scctapp-2000.