Allegiant v. Emerald Inns, Inc.

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 Allegiant, a division of Telerent Leasing, Respondent, v. Emerald Inns, Inc., d/b/a Inn on the Square of Greenwood, C. Allan Peterson, and S. Craig White, Defendants, Of Whom S. Craig White is the Appellant. Appeal From Greenwood County Wyatt T. Saunders, Jr, Circuit Court Judge Unpublished Opinion No. 2007-UP-325 Submitted April 2, 2007 – Filed June 15, 2007 REVERSED AND REMANDED Leonard R. Jordan, Jr., of Columbia, for Appellant. Robert Wallis Cone, of Greenwood, for Respondent. PER CURIAM: S. Craig White appeals from the trial court’s grant of summary judgment awarding Allegiant $69,897.26 against him as damages for a breached lease of which White was a guarantor. We reverse and remand. [1] FACTUAL/PROCEDURAL BACKGROUND On January 14, 2003, White and C. Allan Peterson, doing business as Emerald Inns, Inc, (Defendants) entered into an agreement to lease from Allegiant furnishings and equipment for use in the operation of a hotel. The cash sale price of the goods leased was $67,698.17. Emerald Inns, White, and Peterson agreed to make lease payments in the amount of $1,461.81 per month plus applicable sales tax for 60 months, beginning on June 1, 2003. The Defendants made the last payment on April 27, 2004. On July 27, 2004, Allegiant brought this action for breach of the lease seeking immediate and permanent possession of the leased good together with any deficiency remaining after a commercially reasonable sale of the goods with interest thereon, judgment against Emerald Inns, White, and Peterson for value of the goods, including depreciation and pre-judgment interest, and for “actual, consequential, and punitive damages” arising out of the breach of the lease agreement. Allegiant also sought damages against Emerald Inns and Peterson for breach of a carpet purchase agreement. White was not a guarantor under that agreement. White answered the complaint denying most of the allegations, while Peterson was in default. The trial court granted Allegiant summary judgment as to liability as to the lease agreement against all of the defendants and on the carpet agreement against Emerald Inns and Peterson. However it held the issue of damages for both agreements in abeyance pending recovery and disposition of the goods that were the subject of the lease agreement. Allegiant took inventory of the goods remaining at the hotel and sold them to the new owner of the hotel for $5000.00. Allegiant subsequently filed a supplemental motion for summary judgment seeking acceleration of all of the payments due under the lease reduced by the amount received from the sale of the remaining goods, as well as attorney’s fees and costs. White filed an affidavit asserting the indebtedness was not simply a total of all of the rent payments past due and to be become due in the future, but rather the amounts of unpaid rent due at the date of the default plus the present value of the remaining payments. The trial court found the language of the lease allowing Allegiant a variety of remedies available “under this agreement or otherwise . . .” allowed it to claim as damages the aggregate of all of the payments that would have become due under the lease. In addition, the trial court found that since White submitted his affidavit disputing damages less than five days prior to the hearing, his request for a damages hearing was not timely and was therefore denied. The court awarded Allegiant judgment in the amount of $66,320.60 against Emerald Inns, White, and Peterson as well as $3200.00 in attorney’s fees and $376.66 in costs for a total of $66,320.60. The court also added $376.66 in costs to the judgment awarded under the carpet agreement for a total judgment against Emerald Inns and Peterson of $30,861.94. The court subsequently denied White’s motion to alter or amend the judgment. This appeal followed. DISCUSSION I. Request for damages hearing White argues the trial court erred in holding he was obligated to request a damages hearing and that, by failing to request such a hearing, he waived the right to the hearing. We agree. The burden for proving damages for breach of contract rests on the plaintiff. Depositions And . . . Inc. v. Campbell, 305 S.C. 173, 175, 406 S.E.2d 390, 391 (Ct. App. 1991). Furthermore, the party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 376, 597 S.E.2d 181, 183 (Ct. App. 2004). Rule 56(c), SCRCP, provides the party opposing summary judgment may serve affidavits “not later than two days before the hearing.” (Emphasis added). White executed his affidavit opposing summary judgment on February 17, 2004. The hearing was held on February 21, 2006. Thus, White’s affidavit was timely under Rule 56(c). We find no provision in the South Carolina Rules of Civil Procedure to support the trial court’s ruling that a defendant is barred from receiving a hearing on damages because he failed to file his affidavit more than five days before the hearing. According, we hold the trial court erred in finding White was not entitled to challenge Allegiant’s claimed damages. II. Amount of damages White argues the trial court erred in its calculation of damages. We agree. The Remedies section of the lease agreement provides: “If an event of default occurs, Lessor is entitled to exercise in any order any one or more of the following remedies and the exercise of any one or more of such remedies shall not preclude Lessor from any other remedies available to Lessor under this Agreement or otherwise: . . . .” The section then lists a number of remedies. Emphasizing the phrase, “under this agreement or otherwise: . . . ,” the trial court found “under the clear terms of this statement, [Allegiant] as Lessor, may seek relief through a variety of remedies, including those available under statutory and common law.” Although the lease agreement allowed Allegiant a wide variety of remedies, the damages awarded must still be within those allowed by contract law. “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.” South Carolina Fed. Sav. Bank v. Thornton-Crosby Dev. Co., 303 S.C. 74, 77, 399 S.E.2d 8, 10 (Ct. App. 1990). The measure of damages is “the loss actually suffered by the contractee as the result of the breach.” Collins Holding Co. v. Landrum, 360 S.C. 346, 350, 601 S.E.2d 332, 333-34 (2004). Damages will be computed as of the date fixed for performance, because a court does not treat the contract as though it contained a promise to render performance as of the date of the repudiation. Thus the damages for the repudiation of a contract are to be computed as of the date when performance is due, and not as of the date of the prior repudiation. This amount must be reduced to its present value. Judgment should be rendered for all accrued payments plus interest, plus the present value of all unaccrued payments the plaintiff would have received if the contract had been performed. 22 Am.Jur.2d Damages §63 (2003). We hold the trial court erred in granting Allegiant the aggregate of all payments past due and due in the future. The correct measure of damages would include the balance due at the time of the default plus the present value of all unaccrued payments at the time of the default. Accordingly, we remand the case to the trial court for a damages hearing. III. Award of costs White argues the trial court erred in adding costs of $376.66 to both of Allegiant’s judgments. Initially Allegiant contends this issue is not preserved because the parties agreed to the apportionment of attorney’s fees and White did not object to the award of costs and did not seek apportionment of costs between the two judgments. In our review of the record, we find the parties’ agreement involved only the apportionment of attorney’s fees. In his motion to alter or amend the judgment, White objected to the award of costs, sufficiently raising the issue to the trial court and preserving it for our review. See Godfrey v. Heller, 311 S.C. 516, 520, 429 S.E.2d 859, 862 (Ct. App. 1993) (stating that where an appellant learns for the first time when the appellant receives the order that the respondent would be granted certain relief, the appellant must move, pursuant to Rule 59(e), SCRCP, to alter or amend the judgment to preserve the issue). White contends the issue of costs was not raised at the hearing. However, in its complaint Allegiant requested costs and its attorney stated in his affidavit that Allegiant had incurred costs in the amount of $376.66. Therefore, the issue of costs was properly before the trial court. However, we agree with Allegiant that the trial court erred in adding an award of costs of $376.66 to both the judgment on the lease agreement and the judgment on the carpet agreement. The trial court found Allegiant had incurred costs of $376.66 and that this amount was reasonable. By adding this amount to both judgments, the trial court in fact awarded Allegiant costs in the amount $753.32. Thus, we remand the issue of costs to the trial court. CONCLUSION The order of the trial court is reversed and the issues of the amount of damages and the awarding of costs are remanded. REVERSED and REMANDED. HUFF, BEATTY, and WILLIAMS, JJ. concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.