In light of the treble damages awarded to Saylor under her SCUTPA claim, however, the Court need not address the issue of whether Saylor's breach of contract accompanied by a fraudulent act claim entitles her to punitive damages. See Smith v. Strickland, 442 S.E.2d 207, 210 (S.C. Ct. App. 1994) (“As with actual damages, a plaintiff can recover damages that are punitive in nature only once, either as expressly designated punitive damages or as trebled damages, where their recovery concerns a single wrong.”). Here, all of Saylor's claims against Kemp stem from a single transaction, the contract to repair her roof.
Further, under the SCUTPA, the statute itself controls the damages available, and provides that a court may award treble damages for a "willful or knowing violation" of the SCUTPA. See Smith v. Strickland, 314 S.C. 192, 197, 442 S.E.2d 207, 210 (Ct. App. 1994) (holding that "trebled damages" are "punitive in nature"). Therefore, under the SCUTPA, as the amount of damages for a willful or knowing violation is circumscribed by the statute, the financial condition of Defendants is not relevant under the SCUTPA.
To partially resolve the instant Motion, the court must determine whether an alleged violation of the BOSA is an appropriate claim as asserted by Theo's in this action. The court observes that it was only able to locate three (3) distinguishable South Carolina appellate court decisions addressing the BOSA.See Robertson v. Bumper Man Franchising Co., Inc., 612 S.E.2d 451 (S.C. 2005); Smith v. Strickland, 442 S.E.2d 207 (S.C. Ct. App. 1994); State ex rel. McLeod v. VIP Enters., Inc., 335 S.E.2d 243 (S.C. Ct. App. 1985). However, in Tousley v. N. Am. Van Lines, Inc., the Court of Appeals for the Fourth Circuit offered the following summary of the BOSA's parameters:
Gillion and Capital City next contend that CitiCapital should be required to elect whether it will seek trebling of its damage under the South Carolina Unfair Trade Practices Act or seek recovery under the jury award of punitive damage. In Smith v. Strickland, 314 S.C. 192, 442 S.E.2d 207, 210 (S.C.Ct.App. 1994), the South Carolina Court of Appeals noted that a plaintiff can recover damages that are punitive in nature only once, either as expressly-designated punitive damages or as treble damages, where their recovery concerns a single wrong. In this case, the evidence supports the finding of separate and distinct wrongs for fraud (creating a false paper trail and insurance papers) and violation of the South Carolina Unfair Trade Practices Act (unfair competition with CitiCapital).
In our view, then, these statutory penalties are not necessarily for "similar misconduct" to the extent that they would restrict the right of a finder of fact to determine an aggrieved litigant's entitlement to a well-established form of redress.See, e.g., Smith v. Strickland, 314 S.C. 192, 442 S.E.2d 207 (Ct.App. 1994) (requiring the plaintiffs to elect between recovering punitive damages for fraud and treble damages under the Unfair Trade Practices Act); Freeman v. A. M. Mobile Home Sales, Inc., 293 S.C. 255, 359 S.E.2d 532 (Ct.App. 1987) (upholding a punitive damages award of $40,000.00 in an action for fraud, unfair trade practices, and violations of the consumer protection code, in which the plaintiff recovered $1,751.00 in actual damages on each of her three causes of action).See Life Ins. Co. of Ga. v. Johnson, 701 So.2d 524, 531 (Ala. 1997) (recognizing that insurance fraud victims have "little recourse other than through litigation" and that "[p]unitive damages have historically been part of the remedy for such victims").
In fact, this statement from the Higginses' counsel is an argument against summary judgment and conversion of the motions, and it cannot fairly be construed as either an objection to submission of the orders to the judge or an objection to consideration of facts and legal conclusions within the orders. Since the Higginses did not object, the issue is not preserved. Cf. Beaufort Cty. v. Butler, 316 S.C. 465, 451 S.E.2d 386 (1994) (issues not raised at merits hearing are not preserved for appellate review); Millan v. Southern Ry. Co., 54 S.C. 485, 32 S.E. 539 (1899) (party cannot complain for the first time on appeal that the trial court relied on the verbal statement of facts by counsel in support of a motion to amend); Smith v.Strickland, 314 S.C. 192, 442 S.E.2d 207 (Ct.App. 1994) (defendants could not complain on appeal where they failed to present to the trial judge the issue that he should not have given judgment to the plaintiffs before he considered all of the plaintiffs' evidence). Moreover, the record does not reflect that the Higginses filed a motion pursuant to Rule 59(e), SCRCP, which would have given the circuit judge a chance to clarify whether his decision would have been the same without his reliance on and citation of the circuit court orders.