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2012-UP-191 - MBVB v. Verrilli Construction


In The Court of Appeals

Verrilli Construction, LLC, Respondent,


MBVB, LLC and Marsh/Bell Construction Co., Inc., Appellants.

Appeal From Greenville County
Charles B. Simmons, Jr., Master-In-Equity

Unpublished Opinion No. 2012-UP-191 
Submitted March 1, 2012 – Filed March 14, 2012


N. Ward Lambert, Cynthia Buck Brown, and R. Patrick Smith, all of Greenville, for Appellants.

PER CURIAM: MBVB, LLC and Marsh/Bell Construction Company, Inc. (collectively MBVB) appeal the master-in-equity's (Master) order awarding Verrilli Construction (Verrilli) $87,967 in damages for MBVB breaching its contract with Verrilli.  On appeal, MBVB argues the Master erred in (1) finding the standard form agreement (Agreement) was not part of the contract; (2) finding the mechanic's lien was timely filed; (3) awarding Verrilli $87,967 in damages; and (4) admitting the testimony of Allen Face.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to whether the Master erred in finding the Agreement was not part of the contract between MBVB and Verrilli: Electro Lab of Aiken, Inc. v. Sharp Constr. Co. of Sumter, 357 S.C. 363, 367, 593 S.E.2d 170, 172 (Ct. App. 2004) ("An action for breach of contract is an action at law.  In an action at law, on appeal of a case tried without a jury, the appellate court's standard of review extends only to the correction of errors of law.  The trial [court]'s findings of fact will not be disturbed upon appeal unless found to be without evidence which reasonably supports the [court]'s findings."); id. at 368, 593 S.E.2d at 173 ("A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or written, or by conduct.  The necessary elements of a contract are offer, acceptance, and valuable consideration." (citation and quotation marks omitted)); Player v. Chandler,  299 S.C. 101, 105, 382 S.E.2d 891, 893 (1989) ("South Carolina common law requires that, in order to have a valid and enforceable contract, there must be a meeting of the minds between the parties with regard to all essential and material terms of the agreement."). 

2.  As to whether the Master erred in awarding Verrilli $87,967 in damages: Collins Entm't, Inc. v. White, 363 S.C. 546, 559, 611 S.E.2d 262, 268-69 (Ct. App. 2005) ("In a breach of contract action, damages serve to place the nonbreaching party in the position he would have enjoyed had the contract been performed. . . . In the normal case, [damages] will consist of two distinct elements: (1) out-of-pocket costs actually incurred as a result of the contract; and (2) the gain above costs that would have been realized had the contract been performed."  (citation and quotation marks omitted)); id. at 559, 611 S.E.2d at 269 ("Generally, in order for damages to be recoverable, the evidence should be such as to enable the court or jury to determine the amount thereof with reasonable certainty or accuracy." (citation and quotation marks omitted)). 

3.  As to whether the Master erred in finding Verrilli's mechanic's lien was timely filed: Seckinger v. Vessel Excalibur, 326 S.C. 382, 386, 483 S.E.2d 775, 777 (Ct. App. 1997) ("A proceeding to enforce a mechanic's lien is an action at law."); Butler Contracting, Inc. v. Court St., LLC,  369 S.C. 121, 127, 631 S.E.2d 252, 255-56 (2006) ("In an action at law, when a case is tried without a jury, the trial court's findings of fact will be upheld on appeal when they are reasonably supported by the evidence . . .  [T]he trial court's findings of fact will not be disturbed on appeal unless wholly unsupported by the evidence or unless it clearly appears the findings were influenced or controlled by an error of law."); id. at 129, 631 S.E.2d at 256 ("In order to perfect and enforce a mechanic's lien, the person asserting the lien (1) must serve upon the owner or person in possession and file with the register of deeds or clerk of court a notice or certificate of lien containing the lien amount, a description of the real property, and other required information within ninety days after he ceases to labor on or furnish labor or materials for such building or structure; (2) must commence a lawsuit seeking to enforce the lien within six months after ceasing to provide labor or materials for such real property; and (3) must file a notice of the pending action (lis pendens) within six months after ceasing to provide labor or materials for such real property." (citations and internal quotation marks omitted)); id. at 129, 631 S.E.2d at 257 ("The effect of these provisions is that the six-month limitations period for enforcing the lien necessarily commences no later than the date the certificate of lien is filed.").

4.  As to whether the Master erred in awarding attorney's fees to Verrilli for the enforcement of the mechanic's lien: U.S. Bank Trust Nat'l Ass'n v. Bell,  385 S.C. 364, 379, 684 S.E.2d 199, 207 (Ct. App. 2009) ("The general rule is that attorney's fees are not recoverable unless authorized by contract or statute." (citation omitted)); S.C. Code Ann. § 29-5-10(a) (2007) (providing the prevailing party under the mechanic's lien statutes is entitled to reasonable attorney's fees); Seckinger, 326 S.C. at 386, 483 S.E.2d at 777 ("The determination as to the amount of attorney fees which should be awarded under the mechanic's lien statute is addressed to the sound discretion of the trial court and its decision will not be disturbed absent an abuse of discretion.").

5.  As to whether the Master erred in admitting and relying upon the testimony of Allen Face: Doe v. S.B.M., 327 S.C. 352, 356, 488 S.E.2d 878, 880 (Ct. App. 1997) ("The duty is on the litigant to make a timely objection in order to preserve the right of review. A contemporaneous objection is required to properly preserve an error for appellate review. The failure to make an objection at the time evidence is offered constitutes a waiver of the right to object." (internal citations omitted)).



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