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2008-UP-315 - Mathesoya Management Corporation v. Taylor

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

Mathesoya Management Corporation, Respondent,

v.

Clifford Danny Taylor, Appellant.


Appeal From Beaufort County
 Curtis L. Coltrane, Master in Equity


Unpublished Opinion No. 2008-UP-315
Heard April 8, 2008 – Filed June 25, 2008   


AFFIRMED


R. Thayer Rivers, Jr., of Ridgeland, for Appellant.

Drew A. Laughlin, of Hilton Head, for Respondent.

PER CURIAM:  Clifford Danny Taylor appeals from an award granting Mathesoya Management Corporation (Mathesoya) damages for breach of a commercial lease.  We affirm. 

FACTS

Taylor owned a retail clothing business in Lake City, South Carolina.  To facilitate relocation of the business to the Hilton Head area, Taylor entered into an agreement with Mathesoya to lease commercial space in Bluffton, South Carolina.

The lease agreement covered Unit 11 and Unit 12 of the Village at Sheridan Park in Bluffton, South Carolina for a term of sixty months, commencing on June 1, 2001.  Under the agreement, Taylor agreed to pay rent for the use of the two units in monthly installments.  Additionally, the lease agreement provided:

All alterations, additions, improvements and fixtures, other than trade fixtures, which may be made or installed by either of the parties hereto upon the Demised Premises, and which in any manner are attached to the floors, walls or ceilings, shall be the property of Landlord and at the termination of this Lease Agreement shall remain upon and be surrendered with the Demised Premises as part thereof, without disturbance or removal.   

Taylor commenced business in June of 2001; however, by December of that year, business had slowed down considerably.  After Taylor failed to pay the December rent, Mathesoya instituted eviction proceedings on January 13, 2002, and the court scheduled a hearing on the matter for January 15.  Prior to the hearing, Taylor delivered a check to Mathesoya for the remaining balance; however, the check was dishonored when Lance Brutschy, President of Mathesoya, presented it to the bank.

Taylor failed to make an appearance at the January 15 hearing, and the Magistrate Court for Beaufort County granted the eviction.  On January 18, Brutschy received a call from Taylor’s attorney, who asked if Mathesoya would allow Taylor to stay if the money was presented that day in cash.  Brutschy agreed to allow Taylor to stay on these conditions; however, the money was never presented to Brutschy.  On January 23, Taylor filed an affidavit with the court stating he had cured all defaults in payment of the rent and did not owe any money at that time.  Upon receipt of this affidavit, the court stayed the ejectment and scheduled another hearing for February 25 of that year.  Prior to the hearing, Taylor vacated the premises, removing his inventory and the air conditioning units he had personally purchased.

After Taylor left, Mathesoya eventually was able to rent the premises to new tenants; however, their rent was lower than what Taylor had been paying under his lease.  Mathesoya brought a claim against Taylor for damages resulting from the breach of the lease agreement, including unpaid rent, lost rent, and costs.  Taylor answered, alleging: (1) the equitable defense of unclean hands; (2) Mathesoya failed to state a claim upon which relief could be granted; and (3) Mathesoya failed to mitigate his damages.  Additionally, Taylor counterclaimed for breach of contract.  Mathesoya prevailed at trial and this appeal followed.  

STANDARD OF REVIEW

“An action for breach of contract seeking money damages is an action at law.”  R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 343 S.C. 424, 430, 540 S.E.2d 113, 117 (Ct. App. 2000).  Furthermore, the interposition of an equitable defense in an action at law does not alter the nature of the action.  Wright v. Craft, 372 S.C. 1, 19, 640 S.E.2d 486, 496 (Ct. App. 2006) (internal citation omitted) (“[A] distinction should be made between cases in which the defendant’s answer asserts merely an equitable defense, and cases in which the answer seeks affirmative equitable relief.  In the case of an equitable defense, the nature of the action remains the same.”); but see Brown v. Chandler, 50 S.C. 385, 391, 27 S.E. 868, 871 (1897) (holding an equitable defense in a legal action receives equity review).

When reviewing a judgment made in a law case tried by a master without a jury, the appellate court will not disturb the master’s findings of fact unless the findings are found to be without evidence reasonably supporting them.  Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976); Karl Sitte Plumbing Co. v. Darby Dev. Co. of Columbia, Inc., 295 S.C. 70, 76-7, 367 S.E.2d 162, 166 (Ct. App. 1988). However, “[a] reviewing court is free to decide questions of law with no particular deference to the trial court.” Hunt v. S.C. Forestry Comm’n, 358 S.C. 564, 569, 595 S.E.2d 846, 848-49 (Ct. App. 2004).

LAW/ANALYSIS

I.  Excessive Damages

Taylor argues the master erred by granting monetary relief in excess of the amount prayed for in the complaint.  Specifically, Taylor argues Mathesoya only prayed for damages for lost rent in the amount of $92,682.27; therefore, the master erred in awarding $100,718 for these damages.  This issue is not preserved for our review. 

“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).  A party may not argue one set of grounds below and alternate grounds on appeal.  State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003).  Furthermore, a general, non-specific argument does not necessarily encompass the multitude of specific grounds which may support such a broad argument; rather a party must actually raise the specific grounds below in order to preserve the issue for review.  See Collins Entm’t Corp. v. Coats & Coats Rental Amusement, 368 S.C. 410, 418, 629 S.E.2d 635, 639 (2006) (“Initially, although American argued there was insufficient evidence of excess capacity [of machines] below, it made no argument with respect to the specific types of machines at issue. Accordingly, as this specific argument was not raised below, it is not preserved.”); State v. Fletcher, 363 S.C. 221, 257, 609 S.E.2d 572, 591 (Ct. App. 2005) (internal citation omitted) (“It is well settled that an objection must be on a specific ground.  To be preserved for appellate review, an objection should be sufficiently specific to bring into focus the precise nature of the alleged error.”);  Wilder Corp. at 76, 497 S.E.2d at 733 (“[A]n objection must be sufficiently specific to inform the trial court of the point being urged by the objector.”). 

While Taylor challenged the excessiveness of the award below both on alternative grounds and in a general manner, Taylor failed to specifically argue the master’s award could not exceed the amount prayed for in the complaint.  Accordingly, this specific argument is not preserved for our review.

II.  Unpaid Rent

Taylor argues the master erred in granting Mathesoya eight months of unpaid rent because Mathesoya’s efforts to re-lease the premises were insufficient to mitigate its damages.  We disagree.

“A party injured by the acts of another is required to do those things a person of ordinary prudence would do under the circumstances, but the law does not require him to exert himself unreasonably or incur substantial expense to avoid damages.”  Baril v. Aiken Reg’l Med. Ctrs., 352 S.C. 271, 285, 573 S.E.2d 830, 838 (Ct. App. 2002).  “Moreover, the party who claims damages should have been minimized has the burden of proving they could reasonably have been avoided or reduced.”  Moore v. Moore, 360 S.C. 241, 262, 599 S.E.2d 467, 478 (Ct. App. 2004).  To meet the burden of proof, a tenant must present affirmative evidence showing how a landlord’s damages could reasonably have been avoided, or how the landlord’s efforts were unreasonable under the circumstances.  See Genovese v. Bergeron, 327 S.C. 567, 573, 490 S.E.2d 608, 611 (Ct. App. 1997) (“The tenant failed to present any evidence showing what types of advertising would have been reasonable, how much sooner the landlords could have rented or sold the property through other methods, or that the landlords’ actions to rent the property were inadequate or improper. We conclude, therefore, the tenant failed to sustain her burden of proving the landlords could have reasonably avoided or reduced their damages.”).

Here, Taylor failed to present any affirmative evidence of steps Mathesoya should have taken or that Mathesoya’s efforts were unreasonable under the circumstances.  As a result, Taylor failed to meet his burden of proof as a matter of law.  Additionally, there is sufficient evidence in the record to support a conclusion that Mathesoya effectively mitigated his damages.  Brutschy testified he took multiple steps to re-lease the premises, including cleaning the premises, replacing the air conditioning units, advertising, replacing carpet, repairing a damaged wall, and repainting.  Accordingly, the master’s award of damages for the unpaid rent is affirmed.

III.  Mathesoya’s Installation of Carpet in Unit 11

Taylor argues the master erred in granting Mathesoya damages for replacing the carpet in areas of Unit 11 because there was no carpet in these areas before he took possession of the premises, and the lease agreement did not require installation of carpet.  We disagree.  

Upon breach of a lease agreement, a landlord may seek damages for unpaid rent and “such special damages as [the landlord] may plead and prove to have resulted from the breach.”  Simon v. Kirkpatrick, 141 S.C. 251, 259, 139 S.E. 614, 617 (1927) (citation omitted). 

The lease agreement gave Mathesoya ownership of any improvements to the premises, including the installation of carpet.  Regardless, Taylor argues Mathesoya is only entitled to damages for the replacement of the carpet which Taylor actually installed and subsequently damaged because the lease did not require the entire unit to be carpeted.  This argument is misplaced because it narrowly focuses on the costs of replacing the carpet as damages to Mathesoya’s property.  Brutschy testified the carpet in Unit 11 was damaged and had to be replaced to re-let the premises.  He also testified areas of Unit 11 were uncarpeted due to a display case Taylor had placed in the premises.  The master specifically found Mathesoya replaced the carpet in Unit 11 in his efforts to re-let the premises.  Taylor failed to address whether the cost of the new carpet was an expense incurred in mitigating the damages resulting from the breach of the lease agreement.  He also failed to provide evidence showing Mathesoya’s efforts to re-let the premises were unreasonable or installation of the carpet was an unnecessary expense.  Accordingly, there is evidence to support the master’s conclusion Mathesoya was entitled to damages for the costs of installing the carpet as an expense incurred in mitigation of his damages.

IV.  Estoppel

Taylor argues he was entitled to rely on assertions that Mathesoya had a replacement tenant; therefore, Mathesoya should be estopped from recovering damages.  This issue is not preserved for our review. 

“[E]stoppel must be affirmatively pled as a defense and cannot be bootstrapped onto another claim.”  Collins Entm’t, Inc. v. White, 363 S.C. 546, 562, 611 S.E.2d 262, 270 (Ct. App. 2005).  Taylor failed to plead estoppel as an affirmative defense.  While Taylor’s answer broadly asserted Mathesoya acted “inequitably and unfairly,” we decline to hold such a general assertion includes estoppel, a defense which requires a party establish multiple elements.[1]  Likewise, Taylor’s assertion that Mathesoya acted “with unclean hands” is a separate defense to which estoppel cannot be “bootstrapped.”  As a result, Taylor failed to specifically assert the defense, either by name or through its elements, and therefore Taylor failed to raise this issue before the master. 

Furthermore, even if we assumed, arguendo, Taylor had effectively pled estoppel, the master did not rule on the issue in his order, nor did Taylor address it in his 59(e) motion to reconsider.  Where a trial court does not explicitly rule on an argument raised, and the appellant makes no Rule 59(e) motion to obtain a ruling, the appellate court may not address the issue.  Shealy v. Aiken County, 341 S.C. 448, 460, 535 S.E.2d 438, 444-45 (2000).  Accordingly, the issue is not preserved for our review.

V.  Abandonment

Taylor argues the master erred in finding he abandoned the premises because in actuality he was evicted, which is distinguishable from abandonment; therefore, the master inappropriately emphasized abandonment as the justification for awarding damages to Mathesoya.  We find no reversible error. 

“An error not shown to be prejudicial does not constitute grounds for reversal.”  Brown v. Pearson, 326 S.C. 409, 417, 483 S.E.2d 477, 481 (Ct. App. 1997).  “An error is not reversible unless it is material and prejudicial to the substantial rights of the appellant.”  Visual Graphics Leasing Corp. v. Lucia, 311 S.C. 484, 489, 429 S.E.2d 839, 841 (Ct. App. 1993).

While Taylor is correct in his assertion that eviction is legally distinguishable from abandonment, the distinction does not have any bearing on this case because Mathesoya’s action is for damages resulting from the breach of a lease agreement.  Whether the master described the situation as abandonment of the premises, abandonment of the lease agreement through non-payment of rent, or eviction, Taylor breached the agreement when he failed to pay the rent required by the lease, and as a result, Mathesoya incurred damages.  Therefore, Taylor fails to illustrate how this distinction caused him prejudice because any error on the part of the master in describing the situation as abandonment of the premises was immaterial to the outcome of the case.  Therefore, there is no reversible error. 

VI.  Removal of the Air Conditioning Units

Taylor argues the master erred in granting damages for the replacement of the air conditioning units.  Specifically, Taylor argues he went to great lengths to ensure the units would not become fixtures subject to the lease provision granting Mathesoya ownership of all fixtures installed on the premises; therefore, the master erred in awarding damages for replacement units.  We disagree.  

A trial judge has considerable discretion regarding the amount of damages, both actual or punitive; thus, our review on appeal is limited to the correction of errors of law.  Mellen v. Lane, 377 S.C. 261, 275-6, 659 S.E.2d 236, 244 (Ct. App. 2008).  “Our task in reviewing a damages award is not to weigh the evidence, but to determine if there is any evidence to support the damages award.”  Id. 

The lease agreement provides the air conditioning units at issue would become the property of Mathesoya if they were “in any manner attached to the floor, walls or ceilings.”  The master found “Taylor removed air conditioning equipment consisting of two exterior condensers, an interior air handler, and the thermostat that had been installed by Taylor as a part of his improvements to the leased premises” and awarded Mathesoya the costs of replacement air conditioning equipment.  Taylor contends this conclusion was in error, pointing to his testimony that the air conditioning units were not attached to Mathesoya’s building, and he purposefully installed the units so they would not become Mathesoya’s property.  Additionally, Taylor emphasizes the testimony on the subject was not challenged during cross-examination.

 Mathesoya’s apparent failure to challenge Taylor’s statements on cross-examination does not amount to a wholesale admission to such statements, nor does it mean the finder of fact was obligated to accept them as true.  Additionally, while Taylor’s testimony supports his argument the air conditioning units were not attached to the building, there is evidence in the record that supports the conclusion they were attached and subject to the provision of the lease agreement.  Brutschy testified elements of the air conditioning system had been suspended from the ceiling, and Taylor’s removal of the system caused damage to the premises.  Mathesoya provided photographs of the areas where the air conditioning had existed, depicting the physical damage caused by the removal of the units.  Taylor himself testified about the permanent fixtures he used to suspend the components of the air conditioning system.  Accordingly, there is sufficient evidence to support a conclusion the air conditioning units were attached to the premises, and therefore we affirm the master’s award of damages for replacement units. 

CONCLUSION

For the foregoing reasons, the order of the master is

AFFIRMED.

ANDERSON, SHORT, and THOMAS JJ., concur.


[1] See Strickland v. Strickland, 375 S.C. 76, 84-85, 650 S.E.2d 465, 470 (2007) (listing the elements for establishing an estoppel defense).