In The Court of Appeals

Laboratory Corporation of America,        Respondent,


Smith Center for Medical Excellence, P.A. d/b/a Greenville Center for the Aging and d/b/a Greenville Center,        Appellant.

Appeal From Greenville County
Joseph J. Watson, Circuit Court Judge

Unpublished Opinion No. 2003-UP-452
Submitted April 18, 2003 – Filed July 1, 2003


Kevin R. Eberle, of Charleston, for Appellant.

Spencer Andrew Syrett, of Columbia, for Respondent.

PER CURIAM:  Laboratory Corporation of America sued Smith Center for Medical Excellence, P.A. d/b/a Greenville Center for the Aging and d/b/a Greenville Center (Smith Center) for breach of contract, alleging Smith Center had agreed to be responsible for $12,635.77 of laboratory work for which Medicare had refused reimbursement.  The case was tried without a jury.  The judge found an implied in fact contract based upon a regular course of dealing and awarded Laboratory Corporation of America $12,635.77.  Smith Center appeals, arguing the court erred in awarding damages for breach of an implied in fact contract because Smith Center never accepted the contract based upon its refusal to pay for the uncompensated laboratory work.

We affirm [1] pursuant to S.C. Code Ann. § 14-8-250 (Supp. 2002), Rule 220(b)(2), SCACR, and the following authorities:  I.  Standard of Review:  Barnacle Broad. v. Baker Broad., 334 S.C. 140, 538 S.E.2d 672 (2001) (holding in an action at law, tried without a jury, the appellate court standard of review extends only to the correction of errors of law).  Gordon v. Colonial Ins. Co. of California, 342 S.C. 152, 536 S.E.2d 376 (Ct. App. 2000) (stating the trial judge’s findings of fact will not be disturbed upon appeal unless the findings are wholly unsupported by the evidence or controlled by an erroneous conception of the application of the law).  Kuznik v. Bees Ferry Assocs., 342 S.C. 579, 538 S.E.2d 15 (Ct. App. 2000) (recognizing the rule is the same whether the judge’s findings are made with or without a reference).  King v. PYA/Monarch, Inc., 317 S.C. 385, 453 S.E.2d 885 (1995) (noting the judge’s findings are equivalent to a jury’s findings in a law action).  Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981) (concluding the appellate court will not disturb the trial judge’s findings of fact that depend on the credibility of witnesses).  Kiriakides v. Atlas Food Sys. & Servs., Inc., 343 S.C. 587, 541 S.E.2d 257 (2001) (determining it is not for the appellate court to weigh the evidence).

II.  Breach of an Implied in Fact Contract:  Prescott v. Farmers Tel. Co-op, Inc., 335 S.C. 330, 335, 516 S.E.2d 923, 925 (1999) (finding a contract is an obligation which arises from actual agreement of the parties manifested by words, oral or written, or by conduct).  Benya v. Gamble, 282 S.C. 624, 628, 321 S.E.2d 57, 60 (Ct. App. 1984) (“A contract exists where there is an agreement between two or more persons upon sufficient consideration either to do or not to do a particular act.”).  Roberts v. Gaskins, 327 S.C. 478, 483, 486 S.E.2d 771, 773 (Ct. App. 1997) (“Stated another way, there must be an offer and an acceptance accompanied by valuable consideration.”).  Rolandi v. City of Spartanburg, 294 S.C. 161, 363 S.E.2d 385 (Ct. App. 1987) (deciding an implied in fact contract arises when the assent of the parties is manifested by conduct).  Florence City-County Airport v. Air Terminal Parking Co., 283 S.C. 337, 322 S.E.2d 471 (Ct. App. 1984) (observing the parties must manifest their mutual assent to all essential terms of the contract in order for an enforceable obligation to exist).



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