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24757 - R. Michael Crary and Carl M. Durham v. Seyed Rassool Djebelli et al.

Davis Adv. Sh. No. 5
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

      R. Michael Crary and

      Carl M. Durham,      Respondents,

      v.

      Seyed Rassool Djebelli

      and Southern National

      Bank of South Carolina,       Defendents,

      of whom Seyed Rassool

      Djebelli is the      Petitioner.

      and

      Southern National Bank

      of South Carolina,       Respondent,

      v.

      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

APPEALS

p. 32


CRARY, ET AL., V. DJEBELLI, ET AL.

Appeal From Spartanburg County

Thomas J. Dezern, Master-in-Equity

Opinion No. 24757

Heard February 4, 1997 - Filed January 26, 1998

REVERSED

William G. Rhoden, of Winter & Rhoden, of
Gaffney, for petitioner Seyed Rassool Djebelli.
Steven B. Licata, of Husman, Licata & Steele, of
Columbia, for respondent Southern National Bank
of South Carolina.
Michael N. Duncan, of Whiteside-Smith Law Firm,
of Spartanburg, for respondents R. Michael Crary
and Carl M. Durham.

      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'

decision.

      The Court of Appeals reversed the trial court's holding that the

conduct of Respondents Crary and Durham was actionable under the


      1 S.C. Code Ann. ยงยง 39-5-10, et seq. (1985).

p. 33


CRARY, ET AL., v. DJEBELLI, ET AL.

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

p. 34


CRARY, ET AL., v. DJEBELLI, ET AL.

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

REVERSED.

TOAL, A.J., MOORE, WALLER and BURNETT, JJ., concur.


      2 __S.C.__, 480 S.E.2d 726 (1997).

p. 35