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2010-UP-501 - Associated Receivables v. Shropshier

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Associated Receivables Funding, Inc. Respondent,

v.

Boiling Springs Textiles and Ricky W. Shropshier, Defendants,

of whom Ricky W. Shropshier is the Appellant.


Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge


Unpublished Opinion No.  2010-UP-501
Submitted November 1, 2010 – Filed November 10, 2010


AFFIRMED IN PART AS MODIFIED and REMANDED


Richard H. Rhodes and William H. Rhodes, of Spartanburg, for Appellant.

Keven K. Kenison and Townes B. Johnson, III, of Greenville, for Respondent.

PER CURIAM:  In this appeal from a nonjury trial, Appellant Ricky W. Shropshier appeals the judgment entered against him in favor of Respondent Associated Receivables Funding, Inc. (A/R Funding).  Shropshier argues A/R Funding failed to:  (1) prove Shropshier breached the contract; (2) put forth evidence to support the award of damages; and (3) prove that it was entitled to attorney's fees.  We affirm[1] the judgment in part as modified and remand, pursuant to Rule 220(b) and the following authorities: 

1.  As to whether there is any evidence that Shropshier breached the contract, we find this issue abandoned on appeal.  See Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, __, 699 S.E.2d 687, 692 (2010) ("Short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not preserved for our review.") (internal quotation and citation omitted).  As to whether there was a novation of the parties' agreement, we find Shropshier failed to show the parties intended the promissory note to be a substitution of the original agreement.  See Superior Auto. Ins. Co. v. Maners, 261 S.C. 257, 262, 199 S.E.2d 719, 722 (1973) (holding there must be an intention to create a novation, which can be ascertained from the circumstances surrounding the transaction); Wellman, Inc. v. Square D. Co., 366 S.C. 61, 72, 620 S.E.2d 86, 92 (Ct. App. 2005) (finding a novation is "an agreement between all parties concerned for the substitution of a new obligation between the parties with the intent to extinguish the old obligation," and the party asserting a novation has the burden of proving it) (internal quotation and citation omitted).

2.  As to whether the $46,760.83 judgment is supported by the evidence, we find the award of $6,583.62 in contractual fees is wholly unsupported by the record.  Thus, we reduce the award by that amount.  We affirm the rest of the award, subtract the contractual fees, and modify the judgment to $40,177.21.  See Coakley v. Horace Mann Ins. Co., 376 S.C. 2, 6, 656 S.E.2d 17, 19 (2007) ("[O]n appeal of a case tried without a jury, we may not disturb the trial judge's findings of fact unless those findings are wholly unsupported by the evidence or unless it clearly appears the findings are controlled by an error of law.") (internal quotation and citation omitted).

3.  As to whether the court erred in awarding attorney's fees, we find A/R Funding is contractually entitled to attorney's fees; however, we remand the issue of the amount of attorney's fees for consideration of the appropriate factors, as we are unable to make this determination from the record.  See Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 383, 377 S.E.2d 296, 297 (1989) (noting attorney's fees are not recoverable unless authorized by contract or statute); id. at 384-85, 377 S.E.2d at 297 (stating that although no one factor is controlling, the trial court must consider the following six factors:  (1) the nature, extent, and difficulty of the legal services rendered; (2) the time and labor necessarily devoted to the case; (3) the professional standing of counsel; (4) the contingency of compensation; (5) the fee customarily charged in the locality for similar legal services; and (6) the beneficial results obtained) (emphasis added). 

Accordingly, the judgment herein is

AFFIRMED IN PART AS MODIFIED and REMANDED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.