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Turner v. Kellett

Court of Appeals of South Carolina

February 6, 2019

Natasha Turner, Respondent/Appellant,
v.
Michael T. Kellett and Carmen Kellett, Appellants/Respondents. Appellate Case No. 2016-001425

          Heard November 7, 2018

          Appeal From Greenville County Letitia H. Verdin, Circuit Court Judge

          Clifford F. Gaddy, Jr., of Greenville, for Appellants/Respondents.

          R. Frank Plaxco and Joseph Mackay Plaxco, both of Greenville, for Respondent/Appellant.

          THOMAS, J.

         Michael and Carmen Kellett (collectively, the Kelletts) appeal a trial court order finding they violated the South Carolina Unfair Trade Practices Act[1] (the Act). On appeal, the Kelletts argue the trial court erred in finding they violated the Act because the unfair or deceptive act at issue was not capable of repetition and therefore did not affect the public interest. In a cross-appeal, Natasha Turner argues the trial court properly found she prevailed under the Act but erred in finding she was not entitled to (1) attorney's fees, (2) punitive damages, and (3) costs. We reverse and remand.

         FACTS/PROCEDURAL HISTORY

         In June 2014, Turner commenced the underlying suit against the Kelletts, alleging they owned and operated an auto repair business known as Buddy's Garage in Greenville. The complaint alleged Turner took her vehicle, a 2006 Mitsubishi Lancer, to Buddy's Garage for repairs and paid in advance for the services, but despite assurances from the Kelletts and their agents, the repairs were never completed and Turner was not refunded. Turner brought causes of action for conversion, fraud, misrepresentation, violation of the Act, and breach of contract. In November 2015, the case proceeded to a bench trial.

         Turner testified she took her vehicle to Buddy's Garage in May 2013 because she was involved in a hit-and-run collision. Turner explained she dealt exclusively with Michael Finchem, the mechanic at Buddy's Garage. She stated Finchem gave her an estimate in the amount of $3, 867.89 for repairs to the transmission, front bumper, and rear bumper. She paid $2, 500 up front, and her automobile insurer tendered a check for $1, 815.26 to cover the remainder.

         Turner eventually picked up her vehicle from Buddy's Garage in July 2013. When she picked up the vehicle, she observed the front bumper was "not there" and the rear bumper had not been repaired. Carmen Kellett reimbursed her with a check for $130 for the front bumper only; Turner accepted the check but never deposited it. When Turner drove her vehicle out of Buddy's Garage, she noticed "noises coming from the engine." She took the vehicle to a second garage for further inspection and discovered the transmission had not been repaired or replaced. She attempted to call Buddy's Garage to discuss the transmission issues, but the phone number was disconnected.

         Turner also testified about her boyfriend Matthew Smith's involvement with Buddy's Garage. She explained Smith took his vehicle, a Pontiac Grand Am, to Buddy's Garage because "he was having some problems with his tires." Smith could not afford the estimated repairs, "so he took the car home" several days later. Finchem reported the Pontiac as stolen; the report was later dismissed as unfounded.

         Carmen Kellett testified she and her husband Michael jointly owned Buddy's Garage. Finchem, their sole employee, ran the day-to-day operations. She stated the repair cost for Turner's vehicle was $3, 867.89, and she received two checks from Turner totaling approximately $4, 315. She explained the $3, 867.89 quote did not cover additional costs such as storage fees and a "paint kit." Sometime in July 2013, Carmen learned Finchem ordered parts for Smith's vehicle but did not install them. She believed Finchem was defrauding Buddy's Garage by using its operating accounts to buy parts but installing them for customers at his home for cash. Thereafter, Carmen fired Finchem, permanently closed down Buddy's Garage, and told Turner to pick up her vehicle.

         On cross-examination, Carmen testified she did not regularly interact with customers and assumed Finchem kept Turner informed about the repairs to her vehicle. She admitted she received two checks from Turner and put them in Buddy's Garage's operating account, which Finchem did not have access to. She explained she refunded Turner $130 for labor costs because the front bumper was not installed. However, she did not refund Turner for the transmission, paint kit, or rear bumper.

         The trial court found in favor of Turner on her claims of conversion, fraud, misrepresentation, and violation of the Act.[2] The trial court awarded Turner treble damages in the total amount of $10, 567.86 but denied her requests for ...


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