THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(c)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dan F. Williamson and Dan F. Williamson and Company,        Respondents/Appellants,

v.

Alfred C. Middleton,        Appellant/Respondent.

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2005-UP-011
Heard December 13, 2004 – Filed January 11, 2005

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

James C. Parham, Jr. and Patricia S. Ravenhorst, both of Greenville, for Appellant/Respondent.

Desa A. Ballard, of W. Columbia, for Respondents/ Appellants.

PER CURIAM:  This is a cross-appeal from an action involving unfair trade practices, breach of fiduciary duty, unpaid commissions, and frivolous proceedings.  Alfred C. Middleton appeals from the trial court’s rulings on his motions for summary judgment, directed verdict, judgment notwithstanding the verdict, sanctions, and prejudgment interest.  He also argues the trial court erred by admitting a brochure into evidence.  Dan F. Williamson and Dan F. Williamson and Company also appeal, arguing the judge who awarded attorney’s fees did not have jurisdiction to do so, and in the alternative, that the factors for attorney’s fees were not met.  We affirm in part, reverse in part, and remand.

FACTS

Williamson, the owner of a material handling and packaging systems company called Dan F. Williamson and Company, employed Middleton as a commissioned salesman.  After working for Williamson for several years, Middleton voluntarily terminated his employment and began to work for Peninsula Plastics, Inc., one of Williamson’s pallet suppliers. 

Before leaving Williamson’s employ, Middleton sold products to Kaltex, Inc., and was due a commission.  Middleton claims he sold two thousand pallets, which were to be delivered in four installments of five hundred pallets each; however, Williamson claims Middleton only sold five hundred pallets to Kaltex.  In any event, Williamson never paid Middleton any commission for the sale even though it acknowledges that he was owed at least $906.62.

Also prior to leaving his job at Williamson, Middleton asked one of Williamson’s customers if he could use a photograph that was taken at the customer’s plant to advertise Williamson’s product in a brochure and on a website.  The customer granted him permission, and the photograph was used in Williamson’s copyrighted brochure. 

After Middleton began working for Peninsula Plastics, he was involved in creating an advertisement brochure for Peninsula Plastics.  The Peninsula Plastics brochure was similar to Williamson’s brochure in many ways, and the photograph used in Peninsula Plastics’ brochure appeared to be the same photograph that was used in Williamson’s brochure, though Middleton denied it was the same photograph.  Peninsula Plastics also began selling its products to customers who had formerly done business with Williamson.

Williamson filed a complaint against Middleton, alleging causes of action for fraud, constructive fraud, breach of fiduciary duty, and violation of the South Carolina Unfair Trade Practices Act. Middleton denied the allegations and filed a counterclaim for commissions owed and sanctions under the South Carolina Frivolous Proceedings Act. 

Prior to trial, Middleton moved to dismiss Williamson’s claims for fraud, constructive fraud, and unfair trade practices.  Williamson voluntarily dismissed its claims for fraud and constructive fraud, and the court denied Middleton’s motion to dismiss Williamson’s unfair trade practices claim.  At the close of Williamson’s case in chief, Middleton moved for a directed verdict as to Williamson’s remaining causes of action for unfair trade practices and breach of fiduciary duty.  The court granted the motion as to the unfair trade practices claim but denied the motion as to the fiduciary duty claim.  At the close of Middleton’s case, Middleton again moved for a directed verdict on the claim for breach of fiduciary duty, and the court denied the motion.

The jury returned its verdict in favor of Middleton on Williamson’s remaining cause of action for breach of fiduciary duty.  The jury also found in favor of Middleton on his counterclaim for unpaid commissions in the amount of $906.62 actual damages.  Middleton moved for a judgment notwithstanding the verdict and prejudgment interest, both of which were denied.  The trial court also denied Middleton relief under the Frivolous Proceedings Act. 

After the verdict, the trial judge, Judge Pyle, informed the parties that Middleton was entitled to attorney’s fees but did not set an amount.  Judge Pyle asked the parties to resolve the issue among themselves, and he explained that if they could not agree, he would set the amount of attorney’s fees for them.  Because the parties could not resolve the issue of attorney’s fees, Middleton petitioned the court for assistance.  Following a hearing, Judge Miller rather than Judge Pyle, awarded Middleton $35,000.00 in attorney’s fees plus $2,209.27 in costs.  This cross-appeal followed.

LAW/ANALYSIS

Middleton argues the trial court erred (1) denying his motion for a directed verdict as to Williamson’s claim for breach of fiduciary duty  (2) denying his motion to exclude evidence regarding Williamson’s copyrighted company brochure (3) denying his motion for JNOV (4) denying his motion for attorney’s fees and costs (5) failing to grant his motion for summary judgment as to Williamson’s claim for unfair trade practices, and (6) denying his motion for prejudgment interest on the amount of damages awarded.  Williamson argues Judge Miller first erred in concluding he had jurisdiction to award attorney’s fees and also erred in awarding fees because the factors supporting an award of attorney’s fees were not met.

I.       Middleton’s Appeal

a.        The issue of whether the trial court erred in failing to grant Middleton’s motion for directed verdict on Williamson’s breach of fiduciary duty claim is moot.

Middleton first argues the trial court erred in failing to grant his motion for directed verdict on Williamson’s breach of fiduciary duty claim.  We find this issue is moot.

‘“A case becomes moot when judgment, if rendered, will have no practical legal effect upon existing controversy,’ as ‘when some event occurs making it impossible for [the reviewing court] to grant effectual relief.’”  Southern Bell Tel. & Tel. Co. v. Herlong Pontiac-Chevrolet Buick, Inc., 298 S.C. 299, 301 n.2, 379 S.E.2d 902, 904 n.2 (1989) (brackets in original) (quoting Mathis v. South Carolina State Highway Dep’t, 260 S.C. 344, 195 S.E.2d 713 (1973)).  Moreover, a party may appeal only if it is aggrieved by the result of the trial court.  Rule 201(b), SCACR.

In this matter, Middleton received a jury verdict in his favor at trial on the breach of fiduciary duty claim.  As a result, Middleton is not an aggrieved party.  Therefore, this issue is moot.

b.        There was no error in allowing evidence regarding the copyright of the Williamson Brochure.

Middleton next argues the trial court erred in allowing any reference to the Williamson brochure because the state law claims of Williamson are preempted by the Federal Copyright Act of 1976.  Specifically, Middleton alleges the Federal Copyright Act preempts and precludes any reference of the copyrighted brochure in support of Williamson’s claim for breach of fiduciary duty.  We disagree. 

The admission of evidence is within the broad discretion of the trial court.  Manning v. City of Columbia, 297 S.C. 451, 455, 377 S.E.2d 335, 336 (1989).  The trial court’s ruling will not be disturbed absent an abuse of discretion.  Id.  

None of Williamson’s claims against Middleton were based on copyright infringement.  Thus, federal preemption is not an issue in this case.  Instead, Williamson relied on the brochure, which was very similar to Peninsula Plastics’ brochure, to support his claim that Middleton breached the fiduciary duty he owed to Williamson.  Because the Williamson brochure was relevant to Williamson’s breach of fiduciary duty claim, we find no error in the trial court’s decision to allow the brochure into evidence.

c.        The trial court did not err in denying Middleton’s motion for JNOV.

Middleton’s third argument is that the trial court erred in denying his motion for judgment not withstanding the verdict.  We disagree. 

In ruling on a JNOV motion, the trial court must view the evidence and the inferences that can be reasonably drawn therefrom in light most favorable to the party opposing the motion.  Steinke v. S.C. Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999). “[T]he trial court should not grant JNOV where the evidence yields more than one inference.  An appellate court may not overturn the decision of the trial court . . . if there is any evidence to support the ruling.”  Rogers v. Norfolk Southern Corp., 356 S.C. 85, 92, 588 S.E.2d 87, 90 (2003). 

Initially, we note that Middleton received a jury verdict in his favor.  Therefore, the appropriate remedy to challenge the sufficiency of a jury award is by additur.  See, e.g., Waring v. Johnson, 341 S.C. 248, 257, 533 S.E.2d 906, 911 (Ct. App. 2000).

Furthermore, we find sufficient evidence to support the jury’s verdict.  Williamson put forth testimony that the only amount owed to Middleton was $906.62, exactly what the jury awarded.  Thus, the trial court did not err in denying Middleton’s JNOV motion.

d.        The trial court properly denied Middleton’s motion for sanctions under the Frivolous Proceedings Act.

Middleton next argues the trial court erred in failing to award him sanctions under the Frivolous Proceedings Act. [1]   We disagree.

The determination of whether attorney’s fees should be awarded under the Frivolous Proceedings Act is treated as one in equity.  Hanahan v. Simpson, 326 S.C. 140, 156, 485 S.E.2d 903, 912 (1997).  Thus, in reviewing this issue, this court may take its own view of the preponderance of the evidence.  Id. 

Section 15-36-20 of the Frivolous Proceedings Act creates a presumption that a person taking part in the initiation or continuation of proceedings acted with a proper purpose “if he reasonably believes in the existence of facts upon which his claim is based” and either (1) reasonably believes under the facts that his claim may be valid under existing or developing law, or (2) relies upon the advice of counsel, sought in good faith and given after full disclosure of all facts within his knowledge.”  Hanahan, 326 S.C. at 156-57, 485 S.E.2d at 912.  The rule of Hanahan states that “where a party survives a summary judgment motion, it is not subject to sanctions after a trial on the merits of the surviving claims.”  Id.

Here, Williamson clearly submitted evidence supporting his claims, which is evidenced by the trial court’s denial of summary judgment on his claim for unfair trade practices and the denial of a directed verdict on his claim for breach of fiduciary duty.    Accordingly, under these facts, we find no error in the trial court’s denial of Middleton’s motion for sanctions under the Frivolous Proceedings Act. 

e.       The trial court did not err in denying Middleton’s motion for summary judgment on Williamson’s claim for unfair trade practices.

Middleton asserts the trial court erred in denying the motion for summary judgment on Williamson’s claim for recovery under the Unfair Trade Practices Act.  However, the denial of a motion for summary judgment is not appealable, even after final judgment.  Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 168, 580 S.E.2d 440, 444 (2003).  We therefore decline to address this issue.

f.         The trial court erred in denying Middleton’s motion for prejudgment interest on the unpaid commissions.

Middleton asserts the trial court erred in not awarding prejudgment interest on the award for unpaid commissions.  We agree.

Section 34-31-20(A) of the South Carolina Code of Laws (1976) provides:

In all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.

Prejudgment interest is available only when the “sum is certain or capable of being reduced to certainty.”  Lee v. Thermal Engineering, 352 S.C. 81, 88, 572 S.E.2d 298, 305 (Ct. App. 2002).

In this matter, the amount recovered by Middleton for unpaid commissions, $906.62, was an amount conceded by Williamson from the outset of the litigation.  Although Middleton sought money in addition to this conceded amount, the $906.62 actually awarded to him was a sum certain that Williamson admittedly owed. Therefore, the trial court erred in not awarding prejudgment interest.

II.            Williamson’s Appeal

Williamson appeals the trial court’s award of attorney’s fees.  Initially, Williamson alleges Judge Miller did not have jurisdiction to entertain Middleton’s motion for attorney’s fees because Judge Pyle retained exclusive jurisdiction over the matter.  Secondarily, Williamson contends Judge Miller erred in awarding attorney’s fees because the factors supporting an award of attorney’s fees were not satisfied.  We agree that Judge Miller did not have jurisdiction to entertain the motion for attorney’s fees and remand the issue to Judge Pyle.

Where a judge has jurisdiction to hear a matter and the matter is heard before him, he entertains jurisdiction until his decision is rendered.  First Carolinas Joint Stock Land Bank of Columbia v. Knotts, 191 S.C. 384, 395, 1 S.E.2d 797, 808 (1939).  Until written and entered, the trial judge retains discretion to change his mind and amend his oral ruling accordingly.  Ford v. State Ethics Comm’n, 344 S.C. 642, 647, 545 S.E.2d 821, 823 (2001).  The written order is the trial judge’s final order and as such constitutes the final judgment of the court.  Id.  A trial judge who controlled the case below retains control of any post trial motions.  See, e.g.,  In re Beard, 359 S.C. 351, 358, 597 S.E.2d 835, 838 (Ct. App. 2004) (holding a trial judge loses jurisdiction over a case when the time to file post-trial motions has elapsed).  

Judge Pyle presided over the trial in this matter.  Following the jury verdict, Middleton moved for attorney’s fees under the Frivolous Proceedings Act, but the trial judge denied this motion.  However, Judge Pyle ruled Middleton was entitled to attorney’s fees a result of the verdict in his favor on the commissions issue.  Judge Pyle specifically undertook consideration of the amount of attorney’s fees, asking Middleton’s counsel if he had a figure “in mind” for the amount that ought be awarded.  Before counsel responded, Judge Pyle stated:

Why don’t you do this?  Why don’t you submit to [Williamson’s counsel] what you perceive to be an appropriate amount?  See if you can resolve it between the two of you.  And if you can’t resolve it, then submit it to me, and I will resolve the problem for you.

Judge Pyle then reiterated, “All right.  If you can’t get together and resolve it, then let me know . . . and I will resolve it for you.”

In so stating, Judge Pyle assumed jurisdiction until the final order was entered in the matter.  See First Carolinas Joint Stock Land Bank of Columbia, 191 S.C. at 395, 1 S.E.2d at 808.  Because the order was never reduced to a final order, Judge Pyle retained exclusive jurisdiction over the award of the attorney’s fees.  Id.  As a result, we hold Judge Miller lacked jurisdiction to enter the award of attorney’s fees for Middleton. 

CONCLUSION

We AFFIRM the trial court’s denial of Middleton’s motions for directed verdict, JNOV, sanctions under the Frivolous Proceedings Act, and summary judgment.  We also AFFIRM the trial court’s decision to allow evidence regarding the Williamson brochure.  However, we REVERSE the trial court’s denial of prejudgment interest on Middleton’s claim for commissions, and we REVERSE and REMAND Judge Miller’s award of attorney’s fees.

AFFIRMED in part, REVERSED in part, and REMANDED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.