Quality Lawn Care and Landscaping, Inc. v. Coogler Construction Company, Inc.

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 Court of Appeals

Quality Lawn Care and Landscaping, Inc. d/b/a Design
South Landscape Co., Appellant,

v.

Coogler Construction Company, Inc., Respondent.

Appellate Case No. 2018-001156

Appeal From Richland County
Joseph M. Strickland, Master-in-Equity

Unpublished Opinion No. 2021-UP-191
Heard February 11, 2021 – Filed June 2, 2021

AFFIRMED

Thomas Jefferson Goodwyn, Jr., of Goodwyn Law Firm,
LLC, of Columbia, for Appellant.

Edward Wade Mullins, III, of Bruner Powell Wall &
Mullins, LLC, of Columbia, Respondent.

PER CURIAM: Quality Lawn Care and Landscaping, Inc. d/b/a Design South
Landscape Company (Quality) appeals the master-in-equity's order finding it
breached its contract with Coogler Construction Company, Inc. (Coogler) by
building a retaining wall in the wrong location. Quality also asserts that even if it
did breach the contract, the master erred in ordering it to pay for the removal and
reconstruction of the entire wall. We affirm.

FACTS/PROCEDURAL HISTORY

This action deals with the construction of a retaining wall for an apartment
complex. Edward Rose Development Company, LLC (Rose) was the owner and
the general contractor of the overall project, and Coogler was one of Rose's
subcontractors. Coogler subcontracted with Quality for the construction of certain
retaining walls. Quality and Coogler entered into a contract after Quality
submitted a construction bid to build the walls and Coogler accepted the bid.1
Quality built two segmental retaining walls, one of which (Wall H) is the subject of
this dispute.

Rose hired a surveyor, and the surveyor used a Computer Assisted Drawing (CAD)
to mark Wall H's location by placing stakes that told Quality how far away the top
of the wall was supposed to be from the stake. The bid submitted by Quality and
accepted by Coogler did not provide the terms for how Quality would build Wall
H. However, the parties agreed that Quality was responsible for placing Wall H
based off of the surveyor's stakes. After Quality finished building Wall H, workers
building an adjacent parking lot discovered Wall H was too close to the lot and
consequently, the lot could not be placed in its designed location. The surveyor
determined the coordinates of Wall H and created an as-built drawing comparing
Wall H's actual location to its designed location on the CAD file. The as-built
drawing showed Wall H deviated from the design for the majority of its length, and
was between 1.3 feet to 3.8 feet closer to the parking lot at various points.

Rose refused to accept Wall H because it was not in the correct location. Rose
demanded that Coogler tear the wall down and rebuild it in the correct location, or
it would hire another subcontractor and charge Coogler. Coogler informed Quality
that Wall H had to be removed and rebuilt, and Quality refused. Coogler then
removed Wall H and hired another subcontractor to rebuild it. Coogler did not pay
Quality for the original construction of Wall H.

Quality filed a complaint alleging Coogler breached their contract by failing to pay
Quality for building Wall H. Coogler answered and counterclaimed, asserting
Quality breached the contract by building Wall H in the wrong place and refusing

1
Quality subsequently amended the bid to increase the contract price after the
parties agreed to expand Quality's obligations regarding the retaining walls.
to rebuild it. The master found Quality breached the contract and entered a
judgment in Coogler's favor in the amount of $64,752.55.2 This appeal followed.

STANDARD OF REVIEW

"An action for a breach of contract is an action at law." Palmetto Mortuary
Transp., Inc. v. Knight Sys., Inc., 424 S.C. 444, 452, 818 S.E.2d 724, 729 (2018).
When such an action "is tried without a jury, the [master's] findings of fact will be
upheld on appeal . . . unless [they are] wholly unsupported by the evidence or
unless it clearly appears the findings were influenced or controlled by an error of
law." Butler Contracting, Inc. v. Court St., LLC, 369 S.C. 121, 127, 631 S.E.2d
252, 255–56 (2006). "In a law case tried without a jury, questions regarding the
credibility and the weight of evidence are exclusively for the [master]." In re Est.
of Anderson, 381 S.C. 568, 573, 674 S.E.2d 176, 179 (Ct. App. 2009) (quoting
Golini v. Bolton, 326 S.C. 333, 342, 482 S.E.2d 784, 789 (Ct. App. 1997)). The
appellant bears the burden of showing the master erred. Ehlke v. Nemec Constr.
Co., 298 S.C. 477, 481, 381 S.E.2d 508, 510 (Ct. App. 1989).

LAW/ANALYSIS

"The elements for a breach of contract are the existence of a contract, its breach,
and damages caused by such breach." Johnson v. Little, 426 S.C. 423, 428, 827
S.E.2d 207, 210 (Ct. App. 2019) (quoting Hotel & Motel Holdings, LLC v. BJC
Enters., LLC, 414 S.C. 635, 652, 780 S.E.2d 263, 272 (Ct. App. 2015)).

The parties did not dispute the existence of a contract. Quality submitted a bid to
build retaining walls and Coogler accepted that bid. The parties agreed that
Quality would build Wall H based on the surveyor's stakes, and Quality built Wall
H. See Miller v. Dillon, 432 S.C. 197, 208, 851 S.E.2d 462, 468 (Ct. App. 2020)
("The necessary elements of a contract are an offer, acceptance, and valuable
consideration." (quoting S. Glass & Plastics Co. v. Kemper, 399 S.C. 483, 491, 732
S.E.2d 205, 209 (Ct. App. 2012))). Therefore, the only issues are breach and
damages.

2
This amount is the difference between the cost Coogler incurred in removing
Wall H and paying another subcontractor to reconstruct it and its contract price
with Quality, plus other charges irrelevant to this appeal.
I. Breach of Contract

Quality argues the master erred in finding it breached the contract, asserting the
surveyor erred in marking the location of Wall H. We disagree. Relying on the
as-built drawing, the master found Wall H was between 1.3 feet and 3.8 feet closer
to the parking lot than designed. The parties offered conflicting evidence as to
whether the error was the result of work done by Quality or the surveyor. After
hearing and reviewing all the evidence, the master found the wall being built in the
wrong location was due to mistakes made by Quality. The record supports the
master's finding. The surveyor testified he correctly marked Wall H's location.
Photographs showed the wall was not placed in accordance with the surveyor's
stakes, which caused the deviation from its designed location. See Butler
Contracting, 369 S.C. at 127, 631 S.E.2d at 255–56 ("In an action at law, when a
case is tried without a jury, the [master's] findings of fact will be upheld on appeal .
. . unless [they are] wholly unsupported by the evidence or unless it clearly appears
the findings were influenced or controlled by an error of law."); Est. of Anderson,
381 S.C. at 573, 674 S.E.2d at 179 ("In a law case tried without a jury, questions
regarding the credibility and the weight of evidence are exclusively for the
[master]." (quoting Golini, 326 S.C. at 342, 482 S.E.2d at 789)). Therefore, we
affirm the master on this ground.3

3
Quality also argues the master erred in finding it breached the contract because
the contract contained no tolerances for Wall H's location, which it asserts is an
"essential element" due to the variance in the retaining wall blocks' size. We
disagree. The absence of an "essential element" would mean a contract does not
exist. See Stanley Smith & Sons v. Limestone Coll., 283 S.C. 430, 434, 322 S.E.2d
474, 477 (Ct. App. 1984) ("The parties must manifest their mutual assent to all
essential terms of the contract in order for an enforceable obligation to exist. If
one of the parties has not agreed, then a prerequisite to formation of the contract is
lacking." (emphasis added) (citation omitted)). It is undisputed that Quality and
Coogler agreed that Quality would build Wall H according to the surveyor's stakes.
Quality could have included tolerances in its bid, when the parties subsequently
amended Quality's responsibilities and the contract price, or when the parties
agreed that Quality would place Wall H based on the surveyor's stakes. However,
the record shows tolerances were not discussed until after Wall H was completed.
Therefore, this argument is without merit, and we affirm the master.
II. Remedy for Breach of Contract

Quality argues the master erred in finding it should pay for the cost of the removal
and reconstruction of Wall H. Quality asserts the proper remedy should have been
a partial reconstruction of Wall H in the areas where it was not properly located.
We disagree. "The general rule is that for a breach of contract[,] the [breaching
party] is liable for whatever damages follow as a natural consequence and a
proximate result of such breach." Little, 426 S.C. at 431, 827 S.E.2d at 212
(alterations in original) (quoting Hotel & Motel Holdings, 414 S.C. at 652, 780
S.E.2d at 272); id. ("In a breach of contract action, damages serve to place the
nonbreaching party in the position he would have enjoyed had the contract been
performed." (quoting Branche Builders, Inc. v. Coggins, 386 S.C. 43, 48, 686
S.E.2d 200, 202 (Ct. App. 2009))); 17 S.C. Jur. Construction Law § 9 (1993)
("Generally, a subcontractor is liable to the contractor for the contractor's cost of
correcting the subcontractor's defective work."). The master found that due to the
nature of a segmental retaining wall, it was not possible to leave portions of the
wall in place and remove other portions to place them in the correct location. The
record supports this finding; two of Coogler's witnesses testified the only way to
fix Wall H was to take it down and rebuild it in the correct location. See Butler
Contracting, 369 S.C. at 127, 631 S.E.2d at 255–56 ("In an action at law, when a
case is tried without a jury, the [master's] findings of fact will be upheld on appeal
. . . unless [they are] wholly unsupported by the evidence or unless it clearly
appears the findings were influenced or controlled by an error of law."); Est. of
Anderson, 381 S.C. at 573, 674 S.E.2d at 179 ("In a law case tried without a jury,
questions regarding the credibility and the weight of evidence are exclusively for
the [master]." (quoting Golini, 326 S.C. at 342, 482 S.E.2d at 789)). Further,
Coogler presented evidence of the cost it incurred to rebuild Wall H, and the
master ordered Quality to pay the difference in what Coogler would have paid
Quality for Wall H's construction and what it ultimately paid. See Little, 426 S.C.
at 431, 827 S.E.2d at 212 ("In a breach of contract action, damages serve to place
the nonbreaching party in the position he would have enjoyed had the contract
been performed." (quoting Coggins, 386 S.C. at 48, 686 S.E.2d at 202)).
Therefore, we find the remedy awarded by the master was proper, and we affirm
on this issue.

CONCLUSION

Based on the foregoing, the master's order is

AFFIRMED.
WILLIAMS, THOMAS, and HILL, JJ., concur.