Turner v. Kellett
Turner v. Kellett
Opinion of the Court
Michael and Carmen Kellett (collectively, the Kelletts) appeal a trial court order finding they violated the South Carolina Unfair Trade Practices Act
*468FACTS/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.
THE KELLETTS' APPEAL
"A claim under the [Act] is an action at law." Jefferies v. Phillips ,
The Act provides, "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."
The Kelletts concede on appeal they committed an unfair trade practice within the scope of the Act by charging Turner for auto repairs that were never performed. Wogan v. Kunze ,
"To be actionable under the [Act], an unfair or deceptive act or practice must have an impact upon the public interest." Wright ,
The potential for repetition may be demonstrated in either of two ways: (1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence; or (2) by showing the company's procedures create a potential for repetition of the unfair and deceptive acts.
Wright ,
The Kelletts argue their unfair acts had no impact upon the public interest because they were incapable of repetition. Specifically, the Kelletts assert Turner presented no evidence showing similar conduct had occurred in the past, and Carmen fired Finchem and permanently closed Buddy's Garage after dealing with Turner, thereby precluding any future repetition. We agree.
No evidence in the record suggests the Kelletts had a history of unfair billing practices or procedures making it likely the unfair billing practices would continue. See
Moreover, Carmen fired Finchem in July 2013 based on her belief he was defrauding Buddy's Garage. Immediately thereafter, Carmen permanently closed Buddy's Garage and told Turner to pick up her vehicle; Turner was Buddy's Garage's final customer. As a result of these actions, there was no potential for either Finchem or the Kelletts to further engage in unfair business practices through Buddy's Garage.
Based on the foregoing, we find Turner failed to meet the public interest prong of the Act. Noack Enters. ,
TURNER'S CROSS-APPEAL
Turner argues the trial court erred in failing to award her attorney's fees, which she requested in her complaint and the Act specifically provides. See § 39-5-140(a) ("Upon the finding by the court of a violation of [the Act], the court shall award to the person bringing such action under this section reasonable attorney's fees and costs."). Because we reverse the trial court's findings on the Act, we decline to address this issue. See Futch v. McAllister Towing of Georgetown, Inc. ,
Turner also argues the trial court erred in denying her punitive damages and costs. The trial court's order found in favor of Turner on the issues of conversion, fraud, and misrepresentation. The Kelletts do not contest these findings, making them the law of the case. See Buckner v. Preferred Mut. Ins. Co. ,
"Punitive damages are recoverable in conversion cases if the defendant's acts have been willful, reckless, and/or committed with conscious indifference to the rights of others." Mackela v. Bentley ,
(1) defendant's degree of culpability; (2) duration of the conduct; (3) defendant's awareness or concealment; (4) the existence of similar past conduct; (5) likelihood the award will deter the defendant or others from like conduct; (6) whether the award is reasonably related to the harm likely to result from such conduct; (7) defendant's ability to pay; and finally, (8) ... "other factors" deemed appropriate.
Gamble v. Stevenson ,
The trial court denied Turner's request for punitive damages and indicated it would not award both punitive and treble damages; however, the trial court did not *471address any of the eight Gamble factors. The Kelletts do not contest the trial court's findings of fraud, conversion, and misrepresentation, for which punitive damages are allowable. See Mackela ,
Accordingly, the decision of the trial court is
REVERSED AND REMANDED.
LOCKEMY, C.J., and GEATHERS, J., concur.
The record is unclear as to why the trial court did not rule on Turner's breach of contract claim.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.