John R. CHAPMAN and Cynthia S. Chapman, Respondents, v. UPSTATE RV & MARINE, d/b/a Holiday Kamper & Boats-Piedmont and Tracker Marine, Inc., Defendants, Of whom Upstate RV & Marine, d/b/a Holiday Kamper & Boats-Piedmont is, Appellant.

John R. Chapman and his wife, Cynthia S. Chapman, brought this
action seeking damages for breach of contract, breach of express
and implied warranties, and revocation of acceptance. The
Chapmans sought costs and attorney's fees under the Magnuson-Moss
Act. Upstate RV & Marine, d/b/a Holiday Kamper & Boats-Piedmont
("Holiday") appeals from the judgment awarding the Chapmans
damages, costs, and attorney's fees.[fn1] We affirm.[fn2]

FACTS

The Chapmans sought to purchase a thirty-two-foot houseboat of
durable quality so that they could spend long weekends with their
family camping overnight at the lake. After speaking with a
salesman from Holiday and reviewing a pamphlet, they selected a
boat manufactured by Tracker Marine, Inc., and purchased it from
Holiday for $42,524. The negotiated boat included several
features the Chapmans wanted: a rubberized mat on the roof for
sunbathing; a cooking area with running water, a stove, grill,
and table; a bathroom; sleeping quarters; a generator; a stereo;
heating and air conditioning; an upgraded motor; and a three-axle
trailer with guide rollers for ease in loading. The Chapmans'
boat was delivered from Columbia to Holiday in Seneca on June 29,
1996. Upon inspection, Mr. Chapman noticed that the trailer did
not have guide rollers, the boat was dented on the side, the
lettering was coming off, the molding around the generator cover
was coming off, the rubber mat on the roof had wood sticking
through it, the bathroom door was scratched, the fender on the
trailer was split, and the grill cover was cracked.

On July 1, 1996, the Chapmans attempted to take the boat to the
lake for the first time. They realized the brakes on the trailer
did not work properly, so they returned home. After having the
brakes repaired, the Chapmans again attempted to use the boat.
The Chapmans and their children became
stranded on the lake overnight when the generator and battery
failed. During that time, the carbon monoxide alarm went off and
the children were soaked with rain because the canvas tent over
the sleeping quarters leaked. Because the trailer did not have
guide rollers, Mr. Chapman had to get into the water behind the
boat and maneuver it onto the trailer when they wanted to leave.

The Chapmans also noticed numerous other defects and examples
of poor workmanship. Some of the problems included poor sealing
in the engine, a missing trim gauge on the motor, a cracked
speaker cover, a leak in the sink, missing snaps on the canvas
cover, a screen door which fell off, and a malfunctioning horn.
The boat was taken to Holiday for repairs. However, when the
Chapmans received the boat a month later in mid-August 1996, many
of the problems were not fixed. The Chapmans took the boat out
just two times after that.

The Chapmans took their boat to Holiday's Seneca store in
November or December 1996 for repairs. Because the Seneca store
was closing, the Chapmans had to transport the boat to the
Greenville store on January 16, 1997. The Chapmans were told the
parts were purchased to make the necessary repairs. They checked
on the progress of the boat every month thereafter. On June 19,
1997, the Chapmans were informed they could pick up their boat.
When they arrived, a Holiday employee informed them that they had
been misled, that the boat had not been repaired, and that the
parts to repair the boat had been ordered.

The Chapmans intended to return the boat to Holiday at that
time. However, Doris Vaughn, the new service manager for Holiday,
persuaded them to allow the boat to be fixed and she would make
sure it was done no later than the Chapmans' next long weekend,
which was July 16, 1997. The Chapmans returned the following day
to see if work had begun on the repairs. When they arrived a
worker was painting the roof where the rubberized mat had
previously been. Mr. Chapman refused to accept a painted surface,
instead demanding a new mat so the deck could be used as
intended.

Unfortunately, when they arrived on July 16, 1997, the boat was
not repaired. The horn was disassembled; the molding
was not repaired; the rubberized mat on the roof was not
replaced; the canvas top was not repaired; the door had not been
repaired; and there were no rollers on the trailer for loading
the boat. The Chapmans informed Holiday of their intention to
revoke acceptance of the boat.

In May 1999, the Chapmans instituted this action for breach of
express and implied warranties and for revocation of acceptance.
At trial, Mr. and Mrs. Chapman testified regarding the boat's
numerous defects and their attempts to have them fixed. Mr.
Chapman testified that the value of the boat without defects was
the purchase price, or $42,524, and he would not have paid that
price if he had known about the defects. Mrs. Chapman testified
the boat was worth no more than $15,000 at the time of revocation
in July 1997. She testified at trial that she would not "give
$2,000" for the boat because of the neglect and damage done since
it was returned to Holiday's possession.

Charles Long, an employee of Tracker, testified regarding the
boat's value. He stated the NADA Guidebook's low retail value for
the boat was $15,300, and the average retail value was $19,850.
He testified the trailer separately had a low retail value of
$3,450 and an average retail value of $4,015. On
cross-examination, Long opined the boat was worth $21,585 given
its condition in 2001.

The jury returned a verdict in favor of the Chapmans on both
their breach of warranty and revocation of acceptance claims. The
jury found Holiday was the only defendant liable on either claim.
On the breach of warranty claim, the jury awarded $22,324. The
jury awarded $48,000 on the revocation of acceptance claim.

Holiday filed post-trial motions for judgment notwithstanding
the verdict (JNOV), new trial absolute, new trial nisi
remittitur, and to require the Chapmans to elect their remedy.
The Chapmans filed to collect attorney's fees under the
Magnuson-Moss Act, 15 U.S.C.A. § 2310(d) (1998). The trial judge
denied the motions for JNOV and new trial absolute. The judge
granted the motion for new trial nisi remittitur as to the
revocation of acceptance claim, and reduced the verdict to
$45,000. The Chapman's were awarded $20,957.69 in attorney's fees
and costs on their breach of warranty claim under
the Magnuson-Moss Act and were required to elect between their
remedies.

Holiday filed a motion pursuant to Rule 59(e), SCRCP to alter
or amend the judgment. The motion restated the same arguments
made in their previous JNOV and new trial motions. Additionally,
Holiday sought to further reduce the award under the revocation
of acceptance claim and to reverse the award of attorney's fees.
The motion was denied. The Chapmans elected to recover under
their breach of warranty claim. This appeal follows.

LAW/ANALYSIS

Holiday contends the trial judge erred in failing to grant its
motions for a new trial absolute or, in the alternative, for a
new trial nisi remittitur. Holiday contends the Chapmans failed
to properly prove damages under the breach of warranty claim
because they offered no proof of the value of the boat as
accepted. We disagree.

Initially, we note this issue is not preserved. Holiday raised
the damages issue in its directed verdict motion; however, the
issue was raised in the context of causation. Specifically,
Holiday argued that it had done nothing wrong and any damages
were due to a defective product manufactured by Tracker Marine,
Inc., its co-defendant. In its directed verdict motion, Holiday
never questioned the existence of damages nor the measure of
damages. Failure to raise the issue that is now on appeal in the
directed verdict motion bars review on appeal. See In re
McCracken, 346 S.C. 87, 93, 551 S.E.2d 235, 238 (2001) (noting
that since only issues raised in the directed verdict motion may
be raised in the JNOV motion, motions newly raised in the JNOV
motion were not preserved for review); Roland v. Palmetto
Hills, 308 S.C. 283, 286, 417 S.E.2d 626, 628 (Ct.App. 1992) ("A
motion for judgment notwithstanding the verdict is a renewal of
the directed verdict motion and cannot raise grounds beyond those
raised in the directed verdict."). Accordingly, this issue is not
preserved for appellate review.

In any event, even if the issue were preserved, we find
Holiday's appeal to be without merit. "The grant or
denial of new trial motions rests within the discretion of the
trial judge and his decision will not be disturbed on appeal
unless his findings are wholly unsupported by the evidence or the
conclusions reached are controlled by error of law." Vinson v.
Hartley, 324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct.App. 1996).

The trial judge must grant a new trial absolute if
the amount of the verdict is grossly inadequate or
excessive so as to shock the conscience of the court
and clearly indicates the figure reached was the
result of passion, caprice, prejudice, partiality,
corruption or some other improper motives . . . The
failure of the trial judge to grant a new trial
absolute in this situation amounts to an abuse of
discretion and on appeal this Court will grant a new
trial absolute.

Vinson, 324 S.C. at 404-05, 477 S.E.2d at 723. "Alternatively,
the trial court may grant a new trial absolute when, sitting as
the thirteenth juror, it concludes the jury's verdict is not
supported by the evidence." Duncan v. Hampton Co. Sch. Dist. No.
2, 335 S.C. 535, 547, 517 S.E.2d 449, 455 (Ct.App. 1999).
However, substantial deference should be given to a jury's
determination of damages. Knoke v. South Carolina Dep't of
Parks, Recreation & Tourism, 324 S.C. 136, 141, 478 S.E.2d 256,
258 (1996).

"The trial judge alone has the power to grant a new trial nisi
when he finds the amount of the verdict to be merely inadequate
or excessive. . . ." McCourt by & Through McCourt v. Abernathy,
318 S.C. 301, 308, 457 S.E.2d 603, 607 (1995). Compelling
reasons, however, must be given to justify invading the jury's
province in this manner. Pelican Bldg. Ctrs. v. Dutton,
311 S.C. 56, 61, 427 S.E.2d 673, 676 (1993). Whether to deny a motion
for a new trial nisi is a matter within the trial judge's
discretion and will not be reversed on appeal absent an abuse of
discretion amounting to an error of law. Vinson,
324 S.C. at 406, 477 S.E.2d at 723-24.

In a breach of warranty action, the measure of damages is "the
difference at the time and place of acceptance between the value
of the goods accepted and the value they would have had if they
had been as warranted, unless special circumstances show
proximate damages of a different amount." S.C. Code Ann. §
36-2-714(2) (2003). The absence
of proof of one of these values normally bars recovery and
warrants the granting of a new trial. See Ellison v. Heritage
Dodge, 283 S.C. 21, 26, 320 S.E.2d 716, 718-19 (Ct.App. 1984)
(affirming the trial judge's grant of an involuntary nonsuit in a
breach of warranty action where the plaintiff failed to prove the
fair market value of a van in its defective condition at the time
the plaintiff returned the vehicle to the secured creditor).
However, our courts have upheld jury verdicts where evidence
existed from which the jury could determine the value of the
goods in their defective condition. Draffin v. Chrysler Motors
Corp., 252 S.C. 348, 351, 166 S.E.2d 305, 307 (1969) (holding
that although there was no direct testimony by the plaintiff
regarding the value of the automobile in its defective condition,
testimony from the plaintiff, his wife, and his son regarding the
defects and evidence regarding the resale value of the automobile
were sufficient to enable the jury to arrive at the value in its
defective condition); Durant v. Palmetto Chevrolet, Inc.,
241 S.C. 508, 515, 129 S.E.2d 323, 326 (1963) (holding that evidence
of a trade-in value of a defective car, testimony regarding the
numerous defects with the car, and evidence regarding numerous
attempts to repair the car, were sufficient to support the jury's
verdict in favor of the plaintiff, despite the lack of opinion
evidence regarding the car's value on the date of sale).

The basis of Holiday's argument on appeal is that the Chapmans
offered insufficient proof of a necessary element of their claim
- the value of the boat at the time they received it in the
condition it was received. Holiday contends Mrs. Chapman's
testimony that the boat was only worth $15,000 one year after the
date of receipt was insufficient evidence of the value of the
boat when it was received; thus, there was no evidence to support
the jury's award.

As in Draffin and Durant, we find the evidence was
"sufficient to enable the jury to arrive at the fair market
value" of the boat in its defective condition. Ellison,
283 S.C. at 25, 320 S.E.2d at 718. The Chapmans returned the boat to
Holiday for repairs from mid-July 1996 to mid-August 1996 and
from November or December 1996 until transferring it to the
Greenville store in January 1997, where it stayed until the
Chapmans revoked acceptance in July 1997. Thus, at most, the boat
was in the Chapmans' possession for only five
months, during which time the boat was only used on two
occasions. Holiday, by contrast, had possession of the boat
approximately eight months prior to revocation. Because the boat
was used so infrequently, it was in the Chapman's possession for
such a short time, and Holiday failed to make the necessary
repairs by the time of revocation, the jury could reasonably have
concluded that the valuation from the time of revocation would
also apply to the value of the boat at the time of acceptance.

Further, the Chapmans testified at length about the numerous
problems caused by the defects, including being stranded on the
lake with their young children, and about the numerous times they
were promised by Holiday that the boat would be repaired. Mrs.
Chapman valued the boat at the time they revoked acceptance at
$15,000. Tracker's expert, Long, gave several 2001 NADA values
for the boat and trailer combined, ranging from $18,750 to
$23,865. Long also testified that it was his opinion that the
boat was worth $21,585 in 2001. The jury awarded $22,324 in
damages, indicating they believed that was the difference between
the value of the boat as warranted and the boat as received in
its defective condition. To arrive at that damages figure, the
jury had to value the boat in its defective condition at
approximately $20,000. The testimony regarding the boat's value
at the time of revocation, the numerous defects, and the failed
attempts to get it repaired was evidence from which the jury
could determine the value of the boat at the time of acceptance.
The jury's award is clearly within the range of that evidence.

We cannot say the amount awarded shocks the conscience of this
court, nor do we find it merely excessive given the facts and
circumstances of this case. Accordingly, we find no abuse of
discretion in the trial court's denial of Holiday's motions for a
new trial absolute or a new trial nisi remittitur.

CONCLUSION

Evidence was presented at trial from which the jury could
determine the value of the boat in its defective condition. Thus,
we find the trial judge did not abuse his discretion in denying
Holiday's motions for a new trial absolute or a new
trial nisi remittitur as to the damages awarded on the warranty
claim. Accordingly, the decision of the trial judge is

AFFIRMED.