Adams Outdoor Advertising v. Dangerfield

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 Adams Outdoor Advertising, Limited Partnership, Respondent, v. John C. Dangerfield, Appellant. Appeal From Berkeley County Roger M. Young, Circuit Court Judge Unpublished Opinion No. 2012-UP-023 Heard December 8, 2011 – Filed January 25, 2012 AFFIRMED Justin O'Toole Lucey and Stephanie Dennette Drawdy, both of Mount Pleasant, for Appellant. Donald Bruce Clark, of Charleston, for Respondent. PER CURIAM: John C. Dangerfield appeals the circuit court's finding that he is liable for a debt owed to Adams Outdoor Advertising, LP (Adams) under a contract between the parties. We affirm. FACTS Dangerfield opened Johnny's Suzuki in Moncks Corner, South Carolina in 2005. According to Dangerfield, Johnny's Suzuki is operated by Johnny's Enterprises, Inc., a South Carolina corporation, of which Dangerfield is the registered agent. Johnny's Suzuki is not one of the forty-four South Carolina corporations owned by Dangerfield. Adams, a Minnesota limited partnership authorized to do business in South Carolina, provides outdoor advertising to its customers. On November 21, 2006, Adams entered into a written media display contract with Johnny's Suzuki to provide outdoor advertising for 52 weeks for $780,000. The contract listed Johnny's Suzuki as the client and was signed by Dangerfield. In August and September 2007, the parties modified the contract by written agreement, reducing the remaining monthly payments from $60,000 to $52,750 and giving Johnny's Suzuki a $1,125 credit on the contract amount due. The parties also entered into seven purchase agreements. The purchase agreements listed Johnny's Suzuki as the client and were signed by either Dangerfield or Karen Dial.[1] According to Adams, it received fourteen checks from Johnny's Enterprises, one check from Johnny's Subaru & Isuzu, LLC, and two checks from Johnny's Subaru Isuzu, totaling $631,207.83. On October 21, 2008, Adams filed a complaint alleging Dangerfield breached the parties' contract and purchase agreements by failing to make all payments when due. Adams alleged Dangerfield owed $100,317.17 on the contract and $5,600 on the purchase agreements. Dangerfield denied he was a party to the contract and purchase agreements (hereinafter referred to as "the contracts") and asserted that Johnny's Enterprises, d/b/a Johnny's Suzuki, was the contracting party. On January 21, 2010, a trial was held before the circuit court. In a January 24, 2010 order, the circuit court found the contracts were between Dangerfield, d/b/a Johnny's Suzuki, and Adams. The circuit court further determined Dangerfield failed to meet his burden of proving his affirmative defense that the contracts were between Adams and Johnny's Enterprises. The court ordered Dangerfield to pay Adams $136,637.57, which included the debt owed under the contracts, pre-judgment interest, attorney's fees, and costs. On February 3, 2010, Dangerfield filed a motion for reconsideration asserting Adams had the burden of proving the contracts were not between Adams and Johnny's Enterprises. The circuit court denied Dangerfield's motion. STANDARD OF REVIEW "An action for breach of contract is an action at law." 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). "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." Id. "The trial judge's findings of fact will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge's findings." Id. LAW/ANALYSIS I. Debt Liability Dangerfield argues the circuit court erred in finding he was personally liable for the debts incurred under the contracts. We disagree. A. Ambiguity Dangerfield argues "Johnny's Suzuki" was an ambiguous term in the contracts, and the circuit court should have construed this ambiguity against Adams. At trial, Dangerfield never argued any terms of the contracts were ambiguous. Furthermore, the circuit court did not make any findings regarding ambiguity in its final order, and Dangerfield failed to raise any ambiguity claims in his Rule 59(e), SCRCP motion. Accordingly, this issue is not preserved for our review. See Pye v. Estate of Fox, 369 S.C. 555, 564-65, 633 S.E.2d 505, 510 (2006) (holding an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the circuit court to be preserved for appellate review). B. Trade Name Dangerfield argues the circuit court erred in finding he was personally liable for the debt owed on the contracts because Johnny's Suzuki is a trade name of Johnny's Enterprises. Dangerfield contends he entered into the contracts as an agent of Johnny's Enterprises, and Adams knew Johnny's Suzuki operated under Johnny's Enterprises. We find Dangerfield failed to meet his burden of proving the contracts were between Adams and Johnny's Enterprises. See Cole v. S.C. Elec. & Gas, Inc., 362 S.C. 445, 452, 608 S.E.2d 859, 863 (2005) (holding a defendant has the burden of proving affirmative defenses listed in Rule 8(c), SCRCP). The name "Johnny's Enterprises" does not appear anywhere on the contracts, and Dangerfield signed the contracts without any indication he was signing on behalf of Johnny's Enterprises. Furthermore, there is no evidence in the record Adams knew Dangerfield was acting on behalf of Johnny's Enterprises. Although James Cusaac, a controller at Adams, testified Adams had done business with Dangerfield in the past, he did not testify that those business dealings were with Johnny's Enterprises. There is no evidence Adams previously entered into any contracts with Johnny's Enterprises. Accordingly, we find the circuit court did not err in finding Dangerfield personally liable for the debt owed on the contracts. II. Novation Dangerfield argues a novation occurred when Adams accepted payment from Johnny's Enterprises, thus relieving Dangerfield of any personal liability. Citing Jay Cee Fish Co. v. Cannarella, 279 F. Supp. 67 (D.S.C. 1968), Dangerfield contends he was relieved of any liability for the debt owed on the contracts after Adams accepted checks from Johnny's Enterprises, Johnny's Subaru & Isuzu, and Johnny's Subaru Isuzu. At trial, Dangerfield never argued there was a substitution whereby Johnny's Enterprises became the new debtor in place of Dangerfield, d/b/a Johnny's Suzuki. Dangerfield maintained the contracts were always between Adams and Johnny's Enterprises, d/b/a Johnny's Suzuki. We also note Dangerfield failed to cite any of the novation cases he relies on in his brief to the circuit court. Because Dangerfield's novation argument was never raised to and ruled upon by the circuit court, it is not preserved for our review. See Pye, 369 S.C. at 564-65, 633 S.E.2d at 510 (holding an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the circuit court to be preserved for appellate review). Accordingly, the decision of the circuit court is AFFIRMED. HUFF, PIEPER, and LOCKEMY, JJ., concur. [1] Although it was indicated at oral argument that Dial was an employee of Dangerfield, it is unclear from the record what her relationship is to Dangerfield, Johnny's Suzuki, or Johnny's Enterprises.