The owners of a now-closed Greenville automobile repair shop didn’t violate the Unfair Trade Practices Act, but the couple still must pay their opponents’ attorney costs and fees and may yet be required to pay punitive damages for other fraud charges they admitted to, the South Carolina Court of Appeals has ruled.
Natasha Turner sued Michael and Carmen Kellett, owners of Buddy’s Garage, in 2014 over repair work which was paid for, but never performed. In all, Turner and her insurance company paid $4,315 for repairs to her transmission, front and rear bumpers, and paint, which she said wasn’t performed.
Turner alleged that the Kelletts were guilty of conversion, fraud, misrepresentation, breach of contract, and violations of the UTPA. Greenville County Circuit Court Judge Letitia Verdin found in Turner’s favor on everything but the breach of contract claim, awarding her treble damages worth $10,567 but denying her requests for attorneys’ fees, costs, and punitive damages.
Both parties cross-appealed. The Kelletts admitted they committed unfair acts, but argued that because they had no impact on the general public interest outside of Turner’s injuries, they didn’t violate the UTPA. Turner, meanwhile, argued that Verdin erred in failing to award punitive damages and attorneys’ fees and costs.
To recover in an action under the UTPA, Judge Paula Thomas said, plaintiffs must show the defendant engaged in unfair or deceptive acts while conducting trade, and that the deceptive act affected the public interest and that the plaintiff suffered losses because of the action. To show the second prong, Thomas said, Turner must show that the same kind of action happened in the past or that the company’s procedures create the potential for repetition.
Because Turner didn’t show evidence that the Kelletts had a history of unfair billing and because the garage was permanently closed shortly after the incident occurred, Thomas said Turner didn’t meet the requirements to show an UTPA violation, and the trial court’s decision was reversed on that issue.
In ruling on punitive damages, Thomas said that Verdin had failed to consider the factors laid out in the state Supreme Court’s 1991 decision in Gamble v. Stevenson.
“The trial court denied Turner’s request for punitive damages and indicated it would not award both punitive and treble damages; however, the trial court did not address any of the eight Gamble factors,” Thomas wrote for a unanimous panel.
Because the Kelletts did not dispute Verdin’s findings on the remaining three claims, all of which allow for punitive damages, Thomas said each cause of action should be remanded to the trial court for “findings as to the proper measure of damages.”
Thomas also instructed the trial court to award Turner her costs as the prevailing party in the case, as required by state law.
Clifford Gaddy Jr. of Greenville represented the Kelletts. He said he believes the Court of Appeals decision was consistent with state law, and that Turner didn’t meet the requirements necessary to prove an UTPA violation. He said that the two sides are discussing a settlement agreement to prevent further litigation.
Joseph Plaxco and R. Frank Plaxco, also of Greenville, represented Turner on appeal. Frank Plaxco said that Turner had filed a petition for rehearing arguing that the court erred in holding that there was no history of unfair billing practices establishing an UTPA violation.
“The Kelletts admitted in their pleading acts involving other customers, alleging that their agent, ‘as part of his ongoing scheme of fraud, theft, and deception perpetrated on the Defendants as well as other customers’ retained funds when work was not performed,” Joseph Plaxco said in the petition.
The seven-page decision is Turner v. Kellett (Lawyers Weekly No. 011-018-19). The full text of the opinion is available online at sclawyersweekly.com.
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