E. Damages

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

E. Damages

The Act requires⁷³ the court to award treble damages if it finds that the use or employment of the unfair or deceptive method, act or practice was a willful or knowing violation.⁷⁴ It is error for a court to apply the common law definition of willful.⁷⁵ Rather, the court must apply the statutory definition which provides that a willful violation occurs when the party knew or should have known the conduct was a violation of the Act.⁷⁶ This has been construed to mean if a person of ordinary prudence engaged in trade or commerce, in the exercise of due diligence, that person could have ascertained the conduct in question violated the Act.⁷⁷ Creation of a pyramid scheme, expressly prohibited by the Act, has been considered willful⁷⁸ conduct in accord with the common practice of the trade has not.⁷⁹

A defendant may avoid treble damages by an exculpatory clause, but it must specifically prohibit statutory or multiple damages.⁸⁰

The South Carolina Unfair Trade Practices Act (SCUTPA) addresses attorneys' fees. It says that on finding a violation of the Act, the court shall award to the person bringing the action reasonable attorney's fees and costs.⁸¹ While actual damages are subject to trebling under SCUPTA, attorneys' fees are not.⁸²

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Notes:

^[73] Payne v. Holiday Towers, Inc., 283 S.C. 210, 321 S.E.2d 179, 182 (Ct. App. 1984).

^[74] S.C. Code § 39-5-140(a).

^[75] Haley Nursery Co., Inc. v. Forrest, 298 S.C. 520, 381 S.E.2d 906 (1989).

^[76] S.C. Code § 39-5-140(d). See, e.g., Raco...