Davis Adv. Sh. No.19

THE STATE OF SOUTH CAROLINA
In The Supreme Court

J. Wrightson Jackson and

Sallie T. Jackson,             Respondents,

v.

Robert W. Speed, Kelley J.
Broome, William A.
Broome, Columbia Sports
Car Garage, Inc., and
Western Surety Company,             Defendants,

of whom Kelley J. Broome,
William A. Broome, and
Columbia Sports Car Garage,
Inc., are                       Appellants.

Appeal From Richland County
H. Dean Hall, Judge

Opinion No. 24639
Heard April 1, 1997 - Filed June 23, 1997

AFFIRMED

Carol S. Broome, of Broome & Broome, of Columbia, for
appellants.

J. Gregory Studemeyer, of Columbia, for respondents.

Burnett, A.J.: This dispute arose over a transaction involving a 1969 Jaguar automobile and the alleged representations made to respondents on the condition of the vehicle. Appellants appealed the jury verdict in favor of respondents and the trial judge's award of attorney's fees. We affirm.

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FACTS

Respondents (Mr. and Mrs. Jackson) initiated this action against all. defendants alleging fraud, revocation of acceptance,1 and violation of the Regulation of Manufacturers, Distributors,'and Dealers Act, S.C. Code Ann. §§ 56-15-10 to -130(1991) (Dealers Act). Respondents effectively served all defendants except Robert W. Speed, thus Speed did not appear at the trial.2

Appellant William A. Broome (Broome) owns Columbia Sports Car Garage (CSCG) which is located in Columbia, South Carolina.3 CSCG specializes in service, parts, restoration and sales of European sports cars. Appellant Kelley Broome (Kelley) is Broome's son. At the time of the transaction with Mr. and Mrs. Jackson, Kelley was training at CSCG as a line mechanic and Robert Speed was a commissioned-based salesman for Broome.

In April 1992, Mr. and Mrs. Jackson, who were residents of the Atlanta, Georgia area, were in the market for an older model European sports car in good condition. Mr. Jackson responded to an advertisement placed in an Atlanta newspaper by Speed. This advertisement had been authorized and paid for by Broome. Mr. Jackson called CSCG and spoke with Speed. During the conversation, Speed represented the Jaguar was in excellent condition and the vehicle had never been wrecked. Mr. Jackson arranged to inspect the vehicle on Sunday, April 26, 1992.

When Mr. and Mrs. Jackson arrived at CSCG on April 26, 1992, Speed and Kelley were present. The Jaguar was partially disassembled and could not be driven. Both Speed and Kelley represented the vehicle had only 87,000 original miles and had never been wrecked. Kelley also represented after a complete interior/exterior restoration the Jaguar would be like a new vehicle. Further, Kelley told Mr. and Mrs. Jackson the engine did not need to be rebuilt and it still met factory specifications. After receiving assurances the Jaguar would be in good condition after restoration was completed, Mr. and Mrs. Jackson agreed to buy the vehicle for $20,000.00. Speed and Mr. Jackson prepared a contract. The contract contained a list of specific items that were to be repaired during the restoration. The next day, Broome and Mr. Jackson discussed the deal by telephone. Broome confirmed the restoration of the Jaguar would be completed pursuant to the list prepared by Mr. Jackson. Broome also

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1This cause of action was dropped prior to charging the jury.

2Prior to submitting the case to the jury, the trial judge stated Speed was not a party and his name should not be included on the verdict forms. However, due to a clerical mistake, his name was added as a party-defendant on the judgment.

3After 1990, CSCG's status as a corporation was dissolved.

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provided Mr. and Mrs. Jackson documents reflecting clear and unencumbered title to the vehicle. Included in these documents was information the represented 87,000 miles were not the actual miles.

In May 1992, Broome contacted Mr. and Mrs. Jackson to make arrangements to deliver the Jaguar. Broome represented restoration was complete. Mr. and Mrs. Jackson asked Broome to deliver the vehicle between 1:00 and 1:30 p.m. so they could test drive the vehicle before rush hour and before the bank closed at 4:00 p.m. Broome had requested the balance of the purchase price in cash because he might purchase other vehicles on his return home.

On the date of delivery, Broome and Kelley arrived at Mr. and Mrs. Jackson's residence at 3:25 p.m with the vehicle on a trailer. Because of increased traffic, Mr. and Mrs. Jackson were uncomfortable taking the vehicle for a test drive. However, Mrs. Jackson immediately took Broome to the bank in an effort to accommodate his request for payment in cash. The vehicle remained on the trailer and Broome kept the key to the Jaguar.

After Broome received the cash payment, he gave Mrs. Jackson an Affidavit of Sale indicating the odometer reading exceeded its mechanical limits. When Mrs. Jackson questioned Broome about the mileage, he assured her the 87,000 miles reflected on the odometer were the actual miles. Mrs. Jackson then signed the Affidavit of Sale.

After returning from the bank, Kelley removed the vehicle from the trailer. Kelley indicated the Jaguar needed gas and asked if either Mr. or Mrs. Jackson would like to go for a ride. Mrs. Jackson agreed to go; however, because of increased traffic, she did not want to drive. During the drive, Mrs. Jackson noticed the oil pressure gauge had a low reading. Kelley explained the reading was low because they were doing a lot of "stop and go" driving but the oil pressure reading would increase on an open highway. Mrs. Jackson also questioned Kelley about the high friction point on the clutch. Kelley responded the friction point was normal for this particular Jaguar and could not be adjusted. When Mrs. Jackson attempted to open the passenger door at the gas station, the door would not open. Kelley told Mrs. Jackson the door had new weatherstripping and it would work better after use. Finally, because Mrs. Jackson noticed Kelley pulling on the emergency brake, she asked Kelley if something was wrong with the brakes. Kelley responded the emergency, brake was new and would work itself out with use. Broome and Kelley departed soon after Kelley and Mrs. Jackson returned from the drive.

After traffic lessened, Mr. and Mrs. Jackson test drove the Jaguar. During, the ride, Mr. Jackson noticed the oil pressure was dropping. After driving further, the brakes locked on the vehicle and would not release for several minutes.

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After the brakes released, Mr. and Mrs. Jackson drove a short distance further and the brakes locked again. Mr. Jackson then began driving very slowly and used the gear box and emergency brake to return to his residence.

The next day Mr. Jackson called Broome at CSCG. Broome agreed he would retrieve the vehicle and make the repairs. However, Mr. and Mrs. Jackson refused to allow Broome to take the vehicle and also keep the $20,000.00. Instead, Mr. Jackson asked Broome to refund the purchase price, make the repairs as promised, and when the vehicle was repaired, they could renegotiate the arrangement. Broome refused to refund the purchase money.

A series of letters passed between Mr. and Mrs. Jackson and Broome. Mr. and Mrs. Jackson had the vehicle professionally analyzed by Car Checkers of America and by Jaguar Motor Works. These inspections confirmed the vehicle had not been repaired as required by the list, and resulted in the discovery of further defects, including that the vehicle had been wrecked. Because Broome continued to refuse to refund their money, Mr. and Mrs. Jackson brought suit.

A jury trial was held from May 9-12, 1994. At trial, Mr. and Mrs. Jackson testified about the transaction and the condition of the vehicle. Further, the previous owner of the Jaguar, Eddie Bristow, testified the vehicle had been wrecked and the mileage on the vehicle's odometer was incorrect. Bristow further testified when he took the vehicle to CSCG, Broome and Kelley immediately recognized the vehicle had been wrecked and brought this fact to Bristow's attention. Bristow subsequently sold this vehicle to CSCG. Bristow disclosed the mileage discrepancy and received a trade-in allowance of $6,700.00. Broome and Kelley testified for the defense. However, due to illness, Broome was not available for cross-examination and the parties agreed to substitute Broome's deposition in lieu of live testimony,. Broome returned to the courtroom prior to closing arguments. None of the parties sought to recall Broome as a witness.

At the conclusion of the trial, the jury returned a verdict in favor of Mr. and Mrs. Jackson on the Dealers Act cause of action. The jury awarded Mr. and Mrs. Jackson $13,300.00 in actual damages which was doubled to $26,600.00 under the Dealers Act and punitive damages of $39,900.00. After the verdict, the trial judge gave Mr. and Mrs. Jackson five days to gather documentation concerning the amount of attorney's fees which should be awarded. Mr. and Mrs. Jackson filed their motion for attorney's fees and costs on May 17, 1994. A copy of this motion, including itemized statements of costs and fees, was served on appellants' attorney, Thomas Broadwater.

Both Broome and Kelley filed pro se notices of appeal in June 1994. In July 1994, Broome filed a Pro -0 se motion for a continuance of the hearing to set the

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attorney's fees. However, that motion indicated Mr. Broadwater was still Broome's attorney of record and had not yet been relieved. Broome's motion was granted.

Following this continuance, Mr. and Mrs. Jackson attempted to reschedule the hearing and indicated willingness to travel to Anderson in order to settle the matter. However, purported counsel for Kelley, Carol Broome (Mrs. Broome),4indicated she was unwilling to travel to Anderson but would attend a hearing held in Richland, Lexington or Kershaw Counties. Several attempts were made to conduct this hearing; however, each set date conflicted with another appointment of Mrs. Broome. Finally, on February 1, 1995, the trial judge scheduled a hearing for February 8, 1995, at 2:15 p.m. Mrs. Broome received notice by telephone and by mail on February I and 2, 1995. Notice was sent by certified mail