Hennes v. Shaw
397 S.C. 391
S.C. Ct. App.2012Background
- Ms. Hennes and Mr. Shaw were upstate realtors who co-listed multiple properties and faced dispute over commissions and a Lake Keowee property (Pelfrey).
- A bench trial determined Shaw had a fully enforceable contract to buy the Pelfrey Property for $460,000; litigation followed over who held superior rights and commissions.
- Hennes alleged Shaw breached a loan agreement; Shaw counterclaimed for tortious interference, UTPA violation, fraud, conspiracy, and fiduciary-duty breach.
- Trial evidence showed checks to Shaw were advances for commissions, not gifts, but the relationship deteriorated and Hennes sought their return.
- At trial, the court directed a verdict for Hennes on Shaw’s UTPA and fraud claims, directed verdict for Shaw on breach of contract, and charged the jury on conversion without a prior motion to amend pleadings.
- The jury awarded Hennes $27,662.15 and Shaw $8,750; post-trial motions were denied and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract directed verdict | Shaw contends no contract existed; denial of directed verdict improper. | Hennes asserts a loan/commission arrangement created a contract despite lack of writing. | Directed verdict on breach of contract proper; conflict in evidence reserved for jury. |
| UTPA improper directed verdict | Shaw argues Hennes violated UTPA despite exemption as regulated industry. | Hennes argues exemption applies and no public harm shown. | Upheld directed verdict for Hennes; no proof of public harm; exemption inapplicable. |
| Conversion jury instruction sua sponte | Shaw argues conversion instruction was not raised by pleadings and prejudiced defense. | Hennes contends Rule 15(b) governs; error not preserved. | Reversed and remanded for new trial on conversion due to prejudicial sua sponte charge. |
Key Cases Cited
- Elam v. S.C. Dep't of Transp., 361 S.C. 9 (2004) (standard for directed verdict review)
- Minter v. GOCT, Inc., 322 S.C. 525 (Ct.App. 1996) (evidence viewed in light most favorable to nonmovant)
- Ward v. Dick Dyer & Assoc., Inc., 304 S.C. 152 (1991) (UTPA exemption interpretation; public interest requirement)
- Scott v. Mid Carolina Homes, Inc., 293 S.C. 191 (Ct.App. 1987) (regulated industry exemption analysis under UTPA)
- Dunbar v. Carlson, 341 S.C. 261 (Ct.App. 2000) (implied consent to try issues; Rule 15(b) considerations)
- Ellison v. Simmons, 238 S.C. 364 (1961) (prejudice standard for erroneous jury instruction)