Esguerra v. Brown ( 2012 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jorge V. Esguerra, Appellant,
v.
Jamie V. Brown, individually and d/b/a Southeastern
Services, Robert Baroni, Boyd R. Laughlin and
Associated Construction Consultants, Inc., Defendants,
Of whom Robert Baroni, Boyd R. Laughlin and
Associated Construction Consultants, Inc. are,
Respondents.
Appellate Case No. 2010-174706
Appeal From Beaufort County
Marvin H. Dukes, III, Master-in -Equity
Memorandum Opinion No. 2012-MO-047
Heard October 4, 2012 – Filed November 21, 2012
AFFIRMED
Sean Michael Bolchoz, of Hale & Bolchoz, of Hilton
Head Island, for Appellant.
James Frederick Berl, of Law Offices of James F. Berl,
of Hilton Head Island, and John William Farrell, of
Hilton Head Island, for Respondents.
PER CURIAM: Appellant sued defendant Brown and respondents Baroni,
Laughlin, and Associated Construction Consultants, Inc. (ACCI) for damages
incurred when Brown renovated appellant's vacation condominium on Hilton Head
Island. After a non-jury trial, the master found for appellant on all his claims
against Brown and awarded him $307,520.73 in damages and attorney’s fees. He
found for respondents on all issues, and appellant appeals. We affirm.
FACTS
Appellant, an Ohio resident, hired Brown d/b/a Southeastern Services to renovate
appellant's condo. Brown, who was not properly licensed, approached Baroni,
seeking to have Baroni and his company, ACCI, assist him in obtaining a building
permit for the project. While Baroni initially rebuffed Brown, he met with Brown
later and conditionally agreed to help him "pull" a permit from the town of Hilton
Head.
It is uncontested that Brown eventually obtained a building permit from Hilton
Head for appellant's project using ACCI's information. When Brown's work on the
renovations was unsatisfactory, appellant reported Brown to the South Carolina
Department of Labor, Licensing, and Regulation's Contracting Board (LLR).
Brown admitted he was not licensed, and eventually was cited by LLR for several
statutory violations arising out of his work on appellant's condo.
In the course of LLR's investigation into Brown's licensure, LLR's attention was
drawn to respondent Baroni and ACCI and their relationship to Brown in
connection with appellant's renovations. Following an investigation, Baroni and
ACCI entered a Consent Agreement admitting they unlawfully lent their license1 to
Brown. Under the terms of this Agreement, Baroni and ACCI agreed to pay a
$1,000 penalty and to be placed on probation for one year.
1
See S.C. Code Ann. § 40-11-110(A)(9) (2011).
ISSUES
1. Did the master err in refusing to allow appellant to invoke
non-mutual collateral estoppel on the issue of license
lending?
2. Did the master err in finding appellant failed to prove
respondents were the proximate cause of his damages?
ANALYSIS
Pursuant to the doctrine of collateral estoppel, a party may be precluded from
relitigating an issue decided in a previous action. Non-mutual collateral estoppel
may be asserted by a non-party to the first action in the second action, unless the
party sought to be precluded lacked a full or fair opportunity to litigate the issue in
the first action, or there are other circumstances that justify permitting the party to
relitigate the issue in the second case. South Carolina Prop. and Cas. Ins. Guar.
Ass'n v. Wal-Mart Stores, Inc., 304 S.C. 210, 403 S.E.2d 625 (1991).
Circumstances which may justify relitigation, and thus deny a party non-mutual
offensive collateral estoppel, are found in the Restatement (Second) of Judgments
§ 28 and § 29. Id.
Here, the master concluded that two exceptions found in § 28 applied. Assuming
without deciding that this was error, appellant must also demonstrate the master
erred in finding Brown's negligent work rather than respondents' license lending
and other alleged statutory violations were the proximate cause of appellant's
damages. See, e.g., Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123,
638 S.E.2d 650 (2006) (proximate cause requires proof of both causation in fact
and legal cause). The question of proximate cause is ordinarily for the finder of
fact. Id.This is an action at law tried to a judge alone. In this type of case, the credibility of
witnesses and the weight of the evidence is exclusively for the master. Regions
Bank v. Strawn, ____ S.C. ____, ____ S.E.2d ____ (Ct. App. 2012). We find there
is evidence in the record supporting the master's finding that respondents' statutory
violations were not the proximate cause of appellant's damages. Id.; Madison ex
rel. Bryant, supra.CONCLUSION
The order of the master is
AFFIRMED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.