THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Holly C. Gamble,        Appellant/Respondent,

v.

John M. Parker, Winston-Carlyle Inc. I LLC, Winston-Carlyle Inc. Park West LLC, Winston-Carlyle & Company Inc., and Southport Capital Corporation,        Respondents/Appellants.

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2003-UP-592
Submitted September 8, 2003 � Filed October 9, 2003

AFFIRMED

James Emerson Smith, Jr., and Julianne Farnsworth, of Columbia, for Appellant-Respondent.�

Mark Weston Hardee, of Columbia, for Respondents-Appellants.

PER CURIAM:� Holly Gamble sued respondents (collectively, Winston-Carlyle) alleging five causes of action related to real estate commissions.� Both Gamble and Winston-Carlyle appeal the circuit court�s order, which granted Winston-Carlyle�s motion for a directed verdict on four of the causes of action and declared a mistrial on the fifth.� We affirm. [1]

FACTS

Gamble began selling real estate for Winston-Carlyle in both Columbia and Charleston after, she asserts, a Winston-Carlyle representative convinced her to leave her employment with another company.� Gamble testified she and Winston-Carlyle agreed she would be paid 1.5% of all sales she generated, receive a $3000 monthly draw based on future sales, and receive a sales assistant.� Gamble admitted she would not be entitled to the commission unless a closing resulted from the contract.

Winston-Carlyle terminated Gamble and later sent her a letter purporting to set out the terms of a settlement related to her termination.� According to the letter, she would receive 0.4% of the gross sales price for the Charleston contracts and 0.75% for the Columbia contracts she generated while in their employ.� Gamble testified she generated a total of 80 contracts for Winston-Carlyle for which she did not receive the 1.5% compensation she was originally promised.� Although she presented a spreadsheet listing these properties, Gamble failed to submit copies of the sales contracts or evidence the sales on these properties had ever closed.� However, Gamble acknowledged on cross-examination that information about whether the contracts had closed was available to the public.�

In this action, Gamble alleged violation of the South Carolina Payment of Wages Act, [2] breach of contract, fraudulent misrepresentation, fraud, and unjust enrichment.� Gamble claimed damages in the amount of $124,553.87 � the amount she would have earned from a 1.5% commission on the 80 sales contracts.� At the close of Gamble�s case, the circuit court granted Winston-Carlyle�s motion for directed verdict on all her causes of action except unjust enrichment.� The circuit court found Gamble did not provide adequate evidence from which damages could be calculated � that is, Gamble did not prove the 80 sales contracts had actually closed.� The circuit court ordered a mistrial on Gamble�s unjust enrichment action because it concluded it had improperly excluded evidence related to damages on that claim.�

STANDARD OF REVIEW

�In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence.�� Sims v. Giles, 343 S.C. 708, 714, 541 S.E.2d 857, 861 (Ct. App. 2001).� The trial court�s ruling will be sustained unless it lacks evidentiary support.� Sabb v. South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002).�

LAW/ANALYSIS

A.����� Gamble�s appeal

1.������ Burden of proof

Gamble argues the circuit court erred in granting a directed verdict on her breach of contract claim, asserting she set forth a prima facie case on each claim.� We disagree.�

Gamble testified about generating 80 sales contracts using a spreadsheet listing the properties for which she generated contracts.� However, Gamble provided absolutely no proof that any of the contracts she was responsible for generating and on which she sought commissions were actually closed.� Gamble herself testified that pursuant to the agreement with Winston-Carlyle she was not entitled to be paid until there was a closing pursuant to the contracts that were entered into.� See Champion v. Whaley, 280 S.C. 116, 119, 311 S.E.2d 404, 406 (Ct. App. 1984) (�The broker and the owner may . . . make the broker�s right to the commission contingent upon the occurrence of certain conditions.�).�

Not only was it incumbent upon Gamble to prove the closing in order to prove the breach of contract, the burden was on Gamble to provide evidence of closings in order to prove her damages.� �The burden of proving damages for breach of a contract rests on the plaintiff.�� Jackson v. Midlands Human Res. Ctr., 296 S.C. 526, 528, 374 S.E.2d 505, 506 (Ct. App. 1988).� Thus, without proof that the sales contracts resulted in closings, Gamble could not establish either a breach of her commission agreement or the extent of damages.

Gamble also argues the court erred in denying her directed verdict motion on her Payment of Wages Act claim.� This argument fails for the same reason as her argument regarding her breach of contract claim.� Because she has not established what, if any, compensation was wrongfully withheld, the court properly granted Winston-Carlyle�s motion for a directed verdict.� See Dumas v. InfoSafe Corp., 320 S.C. 188, 194, 463 S.E.2d 641, 645 (Ct. App. 1995) (�[T]he South Carolina Payment of Wages Act is remedial legislation designed to protect working people and assist them in collecting compensation wrongfully withheld.�).

2.������ Exclusion of evidence

Gamble argues the circuit court erred in excluding evidence related to her breach of contract action.� Specifically, Gamble argues the court should have admitted (1) evidence of prior employment agreements and industry standards and (2) an annotated copy of the spreadsheet she offered regarding sales contracts she generated. [3] � However, the circuit court explained its reasoning in excluding this evidence.� The court did not allow evidence of prior employment or industry practices because the complaint concerned whether Winston-Carlyle violated the terms of the specific agreement with Gamble.� The spreadsheet was excluded because Gamble had annotated it with a series of notes approximately one week before trial.�

�The admission or exclusion of evidence is a matter within the sound discretion of the trial court and absent clear abuse, will not be disturbed on appeal.�� Gamble v. Int�l Paper Realty Corp., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996).� To warrant reversal for the exclusion of evidence, the appellant �must show both the error of the ruling and resulting prejudice.�� Recco Tape & Label Co. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838, 840 (1994).�

Gamble did not demonstrate that she was prejudiced by the circuit court�s decision to exclude certain evidence.� Although Gamble wanted to introduce evidence of her past employment history and industry practices, she did not state what she hoped to achieve with the admission of such evidence.� This case involves the specific terms of her employment agreement with Winston-Carlyle � examination of a prior employment agreement would not have shed light on this issue.� Similarly, Gamble did not show the prejudicial effect of the exclusion of the annotated spreadsheet.� Gamble made the notations approximately one week before trial.� The notations simply indicated which sales contracts were generated by Gamble � they do not indicate whether any of the contracts had closed.� Because, as discussed above, this information would have not been sufficient to establish breach or damages, Gamble cannot prove prejudice flowing from its exclusion.� Accordingly, the circuit court did not err in granting Winston-Carlyle a directed verdict on Gamble�s breach of contract claim.

B.����� Winston-Carlyle�s appeal

Winston-Carlyle argues the circuit court erred in denying its motion for a directed verdict on Gamble�s unjust enrichment claim.�

The trial court granted a mistrial on the unjust enrichment action, reasoning that it had erred in excluding evidence.� Because there was no final judgment, the court�s denial of Winston-Carlyle�s directed verdict motion on this action is not appealable.� South Carolina Code section 14-3-330 (1976 & Supp. 2002) provides that only final judgments and limited interlocutory appeals including those involving the merits of the case or affecting a substantial right are directly appealable.� See also Rule 201(a), SCACR (stating an appeal may be taken only from a �final judgment or appealable order.�); Cf. Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 167-68, 580 S.E.2d 440, 443-44 (2003) (holding denial of motion for summary judgment is not appealable); Ballenger v. Bowen, 313 S.C. 476, 477-78, 443 S.E.2d 379, 380 (noting denial of summary judgment motion does not �finally determine� anything about the merits of the case and thus is not appealable). 

AFFIRMED.

STILWELL, HOWARD, and KITTREDGE, JJ., concur.