Davis Adv. Sh. No. 5
THE STATE OF SOUTH CAROLINA
In The Supreme Court
R. Michael Crary and
Carl M. Durham, Respondents,
Seyed Rassool Djebelli
and Southern National
Bank of South Carolina, Defendents,
of whom Seyed Rassool
Djebelli is the Petitioner.
Southern National Bank
of South Carolina, Respondent,
Seyed Rassool Djebelli,
a/k/a S.R. Djebelli, R.
Michael Crary, Carl M.
Durham and C&A
Mortgage Services, Defendants,
of whom Seyed Rassool
Djebelli is, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Spartanburg County
Thomas J. Dezern, Master-in-Equity
Opinion No. 24757
Heard February 4, 1997 - Filed January 26, 1998
FINNEY, C.J.: This case is before us on a writ of certiorari to
review the Court of Appeals' decision reported at 321 S.C. 38, 467 S.E.2d
128 (Ct. App. 1995). We reverse.
The master-in-equity awarded petitioner Seyed Rassool Djebelli
judgment against Crary and Durham under the South Carolina Unfair
Trade Practices Act (UTPA)1 based on a finding that they engaged in an
unfair and deceptive trade practice that affected the public interest
because it had the potential for repetition. R. Michael Crary, Carl M.
Durham, and C&A Mortgage Services appealed. The Court of Appeals
reversed finding that the evidence was insufficient to prove a potential for
repetition. We granted a writ of certiorari to review the Court of Appeals'
The Court of Appeals reversed the trial court's holding that the
conduct of Respondents Crary and Durham was actionable under the
UTPA. To be actionable under the UTPA, the unfair or deceptive act or
practice must have an impact upon the public interest. Haley Nursery
Co., Inc. v. Forrest, 298 S.C. 520, 381 S.E.2d 906 (1989). Unfair or
deceptive acts or practices have an impact upon the public interest if the
acts or practices have the potential for repetition. Id.
The Court of Appeals found the master did not point to any
evidence in support of his finding that Crary and Durham's acts had the
potential for repetition. Petitioner asserts Crary's testimony that he and
Durham had had several opportunities to enter into transactions similar to
the one here was sufficient to show a potential for repetition. The Court
of Appeals found Crary's testimony alone was insufficient to show a
potential for repetition without proof that respondents also engaged in
unfair or deceptive acts when they had those opportunities in the past or
that they were inclined to engage in unfair or deceptive acts or practices if
given the opportunity in the future. Petitioner contends the Court of
Appeals added another element of proof when they found that a plaintiff
must allege and prove at least two separate torts to show an adverse
impact on the public interest. We agree.
After alleging and proving facts demonstrating the potential for
repetition of the defendant's actions, the plaintiff has proven an adverse
effect on the public interest. Daisy Outdoor Advertising v. Abbott, __
S.C. __, 473 S.E.2d 47 (1996). The plaintiff need not allege or prove
anything further in relation to the public interest requirement. We held
in Daisy the Court of Appeals erred in requiring more. To the extent the
Court of Appeals required more than a showing of potential for repetition
here, that is error. Daisy, supra.
The potential for repetition may be shown in two ways: 1) by
showing the same kind of actions occurred in the past, thus making it
likely they will continue to occur absent deterrence, or 2) by showing the
company's procedures create a potential for repetition of the unfair and
deceptive acts. Daisy, supra. We specifically declined in Daisy to hold
that these are the only means for showing potential repetition and stated
each case must be evaluated on its own merits.
In an action at law, on appeal of a case tried without a jury,
our scope of review extends merely to the correction of errors of law;
factual findings of the trial judge will not be disturbed on appeal unless a
review of the record discloses that there is no evidence which reasonably
supports the judge's findings. Townes Associates, Ltd. v. City of
Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Since the master-in-equity
found there was a potential for repetition of Crary and Durham's actions,
the reviewing court's only task was to determine whether the record
contained any evidence to support the trial judge's finding. Respondents,
who remain in the same business, admit they have had the opportunity
and have previously entered into similar conduct as complained of in this
case. The trial judge's finding of potential for repetition is not wholly
unsupported by the evidence. See York v. Conway (alleged acts or
practices have the potential for repetition where defendant remains in the
same business and faced with opportunities to repeat the conduct).2
Accordingly, the Court of Appeals' opinion is
TOAL, A.J., MOORE, WALLER and BURNETT, JJ., concur.