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2005-UP-419 - Taylor v. Master Construction

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Russell Taylor: d/b/a Palmetto Steel Construction, and Dana Rawl,        Respondents,

v.

Master Construction Company, Inc.,        Appellant.


Appeal From Richland County
L. Casey Manning, Circuit Court Judge


Unpublished Opinion No. 2005-UP-419
Heard April 5, 2005 – Filed June 27, 2005


AFFIRMED


F. Barron Grier, III, of West Columbia, for Appellant.

Daryl G. Hawkins and John F. Hardaway, both of Columbia, for Respondents.

PER CURIAM:  In this breach of contract action, Master Construction Company, Inc. appeals from the trial court’s order entering a verdict in favor of Russell Taylor, doing business as Palmetto Steele Construction, and Dana Rawl.  Master Construction contends the trial court erred by failing to dismiss the case based on the statute of limitations, directing a verdict in favor of Taylor and Rawl, disallowing witness testimony, and prohibiting the amendment of Master Construction’s pleadings to add the defense of acceptance.  We affirm.

FACTS

This case arises from a contract between Taylor and Master Construction.  Rawl hired Taylor, a building contractor, to construct a building on his property to be used as a second home.  In April 1998, Taylor subcontracted with Master Construction to pour a concrete pad on which the building was to be built.  The written contract specified that Master Construction would pour a pad with a strength of 3,000 pounds per square inch (PSI) with wire reinforcing and a thickness of four inches.  The contract further provided the work would be performed in a substantial workmanlike manner. 

On May 5, 1998, the day after the pad was built, Taylor inspected it and noticed hairline cracks.  Taylor began erecting the metal trusses and walls of the building on the pad.  Later, during construction of the building, the cracks in the pad became much more extensive.  Multiple cracks ran the length of the pad and extended through its thickness.  Because of the extensive cracking, Taylor discontinued work in the latter part of July 1998 when the building was approximately 98 percent complete.  Taylor had tests conducted on core samples from the pad that indicated it did not meet the 3,000 PSI strength required by the contract. 

On April 8, 1999, Taylor filed suit against Master Construction for breach of contract and negligence.  Master Construction answered and counterclaimed for payment under the contract.  On October 12, 2000, Master Construction filed a motion to dismiss contending the owner of the property, Rawl, was an indispensable party and that complete relief could not be afforded the parties without his joinder pursuant to Rule 19, SCRCP.  Judge L. Henry McKellar found Rawl was an indispensable plaintiff under Rule 19, SCRCP.  Taylor moved to alter or amend the order on the ground it failed to specify the manner and means whereby Rawl would be brought into the lawsuit.  By order dated July 19, 2001, Judge McKeller ordered Master Construction to effectuate the joinder of Rawl.  Master Construction did not comply with the order to join Rawl.

After Taylor failed to appear at a roster meeting, Judge Alison R. Lee dismissed the action for failure to prosecute by order dated July 16, 2001.  Judge Lee’s order reflects that the attorneys of record for each party were served with the order; however, Taylor contends he had no notice of the dismissal until July 16, 2003. 

On September 12, 2002, Taylor filed an amended complaint adding Rawl as plaintiff.  Master Construction answered and asserted the case should be dismissed because the statute of limitations had run.  Nine months later, on July 3, 2003, Master Construction moved for summary judgment and referenced, for the first time, Judge Lee’s order in its memorandum in support of summary judgment.  Master Construction argued Judge Lee’s order dismissed the case, and the three-year statute of limitations barred the action at the time Taylor filed the amended complaint adding Rawl as a party.  On July 18, 2003, Taylor and Rawl moved to alter or amend Judge Lee’s order dismissing the case, arguing the case should be restored to the roster because neither Taylor nor Rawl had notice of the order of dismissal until Master Construction’s attorney faxed it to them on July 16, 2003.  Thereafter, Judge Lee vacated her prior order dismissing the case and restored the case to the active roster. 

By order dated October 15, 2003, Judge Reginald I. Lloyd denied Master Construction’s previous motion for summary judgment, and the case proceeded to trial.style="mso-spacerun: yes; mso-fareast-font-family: Times New Roman; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">  At the trial, Master Construction again moved for summary judgment, but the motion was denied.  Additionally, Master Construction proffered the testimony of Glen Walker, the general manager of the company from which Master Construction purchased the concrete.  However, the trial court disallowed the witness on the basis Walker was testifying as an expert witness and could not be qualified as such. 

After both sides presented their cases to the jury, the trial court directed a verdict in favor of Taylor and Rawl on the breach of contract claim, finding there was no question of fact that the pad was defective and submitted the issue of damages to the jury.  The jury returned a verdict for $52,000.  Master Construction moved for a new trial nisi remittitur, a new trial, and a judgment notwithstanding the verdict, all of which were denied.  This appeal follows.

LAW/ANALYSIS

I.      Statute of Limitations

Master Construction argues the trial court erred in failing to dismiss the case because the applicable three-year statute of limitations had expired when Taylor and Rawl filed the amended complaint on September 12, 2002.  We disagree.

A cause of action for breach of contract must be filed within three years after the date the breach was or should have been discovered.  S.C. Code Ann. § 15-3-530(1) (2005); Maher v. Tietex Corp., 331 S.C. 371, 376-77, 500 S.E.2d 204, 207 (Ct. App. 1998) (holding the discovery rule applies to breach of contract actions, and pursuant to the discovery rule, the action accrues on the date the aggrieved party knew or could have discovered the breach through the exercise of reasonable diligence).  In the instant case, the statute of limitations began to run, at the latest, in July 1998.  Taylor timely filed the original complaint on April 8, 1999.  Master Construction moved to have Rawl joined as a party under Rule 19, SCRCP.  Before the statute of limitations had run, the trial court granted Master Construction’s motion and ordered Rawl added as a party.  However, Master Construction did not file the amended complaint within the statute of limitations period and thus Rawl was not added to the caption of the complaint.  Taylor only filed the amended complaint adding Rawl to the caption because of Master Construction’s failure to do so. 

Pursuant to Rule 15(c), SCRCP:

An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

(emphasis added).  Therefore, a plaintiff may substitute a defendant, who was not named in the original pleading, after the statute of limitations has expired as long as certain requirements are met.  In Jackson v. Doe, 342 S.C. 552, 558-59, 537 S.E.2d 567, 570 (Ct. App. 2000), this court held that the plain language of Rule 15(c), SCRCP, indicates that although amendments substituting a party relate back to the date of the original pleading, those that add a new party not named in the original pleading do not relate back, therefore additional parities must be added within the statute of limitations period.  We note that the plain language of Rule 15 refers only to defendants, whereas the party joined in the instant case was a plaintiff; however, a plaintiff must also file an action within the three-year statute of limitations or the claim is barred.  S.C. Code Ann. § 15-3-530(1) (2005).  Regardless, assuming the rule that an amendment adding a party cannot be made after the statute of limitations expires applies to plaintiff, the trial court ordered Rawl joined as a party prior to the running of the statute of limitations, thus we find the statute of limitations does not bar the instant action. 

Master Construction contends the amended complaint adding Rawl as a party constituted a re-filing of the cause of action because the case had been dismissed by Judge Lee’s order dated July 16, 2001.  However, Judge Lee’s order dismissing the complaint was nullified by her subsequent order vacating that decision; therefore we address the remainder of the case as if the dismissal never occurred.  Master Construction filed a notice of appeal designating it was appealing from the trial court’s order entering a verdict in favor of Taylor and Rawl; however, it did not specify it was appealing from Judge Lee’s order.  Because Master Construction failed to designate it was appealing from Judge Lee’s order dated October 16, 2003, which vacated the earlier order dismissing the action and restored the case to the active roster, is the law of the case.  Toler’s Cove Homeowners Ass’n, Inc. v. Trident Constr. Co., Inc., 355 S.C. 605, 610, 586 S.E.2d 581, 584 (2003) (holding an unappealed order becomes the law of the case). 

II.         Witness Testimony

Master Construction argues the trial court erred by refusing to allow its witness to testify.  We disagree.

The decision to admit or exclude evidence is within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion. Gamble v. Int’l Paper Realty Corp. of South Carolina, 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996).  “Generally, there is no abuse of discretion where the excluded testimony is merely cumulative of other evidence proffered to the jury.” Commerce Center of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct. App. 2001).

Master Construction listed Walker as a fact witness prior to trial and indicated that he would testify regarding the contract.  During the proffer, Walker testified that Master Construction ordered 3,000 PSI concrete.  However, Walker also gave highly technical expert testimony, which the trial court excluded because Walker could not be qualified as an expert witness.  Assuming the trial court properly excluded Walker’s testimony, there was no abuse of discretion.  J. Eddie Fulmer, owner of Master Construction, also testified he ordered 3,000 PSI concrete from Walker and Master Construction’s proffer indicated the only non-expert testimony Walker would give regarded Master Construction’s order.  Therefore, because Walker’s testimony was merely cumulative to other admitted testimony, we find no basis for reversal.

III.     Directed Verdict

Master Construction argues the trial court erred in directing a verdict in favor of Taylor and Rawl on the breach of contract claim.  We disagree. 

In ruling on a motion for directed verdict, a court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party.  Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 476, 514 S.E.2d 126, 130 (1999). When the evidence yields only one inference, a directed verdict in favor of the moving party is proper.  Id.

Viewing the evidence in the light most favorable to Master Construction, we find no error in the trial court’s decision to direct a verdict on the breach of contract claim.  Uncontested evidence indicated Master Construction breached the contract with Taylor.  The contract stated that the pad would be four inches thick with a strength of “3000 PSI with wire reinforcing,” and the work would be “completed in a substantial workmanlike manner.”  In his testimony, Fulmer stated he agreed the pad was not 3,000 PSI, the pad needed to be fixed, and he “would not want it the way it was.”  Additionally, G. Allen Moore, an expert witness, testified that testing on the pad showed it was not four inches thick and it did not test at 3,000 PSI.  Master Construction contends Walker’s testimony would have countered Allen’s testimony; however, Walker only testified in the proffer that Master Construction ordered 3,000 PSI concrete.  Walker did not testify that the finished pad had a strength of 3,000 PSI, as required by the contract.  Because Master Construction offered no evidence to contradict the assertion that the pad did not test at 3,000 PSI, we find Master Construction breached the contract as a matter of law.

IV.     Defense of Acceptance

Master Construction argues the trial court erred in denying its motion to amend the pleadings to include the defense of acceptance.  We find the argument has not been properly preserved.

An issue must be raised and ruled upon by the trial judge in order to be preserved for appellate review.  Talley v. South Carolina Higher Educ. Tuition Grants Comm., 289 S.C. 483, 487, 347 S.E.2d 99, 101 (1986).  Master Construction argues it moved to amend its pleadings to include the defense of acceptance at the end of the trial; however, our review of the record indicates Master Construction’s attorney made only a general motion to “renew my motion under 16(b) (sic) to amend the pleadings to conform to the evidence,” which lacked any specific reference to the defense of acceptance.  In Master Construction’s only other Rule 15(b) motion, Master Construction asked to include the defenses of waiver and estoppel.  We can find no instance where Master Construction raised the defense of acceptance to the trial court.  Because arguments raised for the first time on appeal are not preserved for our review, we decline to consider the issue. 

AFFIRMED.

ANDERSON, BEATTY, and SHORT, JJ., concur.