THE STATE OF SOUTH CAROLINA In The Supreme Court

Stoneledge at Lake Keowee Owners' Association, Inc.;

C. Dan Carson; Jeffrey J. Dauler; Joan W. Davenport; Michael Furnari; Donna Furnar i; Jessy B. Grasso; Nancy

E. Grasso; Robert P. Hayes; Lucy H. Hayes; Ty Hix; Jennifer D. Hix; Paul W. H und, III; Ruth E. Isaac; Michael D. Plourde; Mary L ou Plourde; Carol C. Pope; Steven B. Taylor; Bette J. Taylor; and Robert White, Individually and on Behalf of all others similarly situated, Petitioners-Respondents,

v.

IMK Development Co., LLC; Keowee Townhouses, LLC; Ludwig Corporation, LLC; SDI Funding, LLC; Medallion at Keowee, LLC; Integrys Keowee Development, LLC; Marick Ho me Builders, LLC; Bostic Brothers Construction, Inc.; Miller/Player & Associates; Bradford D. Seckinger; John Ludwig; William Cox; Larry D. Lollis; Rick Thoennes; M Group Construction and Development, LLC; Me l Morris; Joe Bostic; Jeff Bostic; Clear View Construc tion, LLC; Michael Franz; MHC Contractors; Miguel Porras Choncoas; Builders First Source-Southeast Group; Mike Green; Southern Concrete Specialties; Carl Compton d/b/a Compton Enterprize a/k/a Compton Ente rprises; Gunter Heating & Air; All Pro Heating; A/C & Refrigeration, LLC; Coleman Waterproofing; Heyward Electrical Services, Inc.; Tinsley Electrical, LLC; Hutch N Son Construction, Inc.; Upstate Utilities, Inc.; Southern Basements; Carl Catoe Construction, Inc.; T.G. Construction, LLC; Delfino Construction; Francis co Javier Zarate d/b/a Zarate Construction; Aleja ndro Avalos Cruz; Herberto Acros Hernandez; Martin Hernandez-Aviles; Francisco Villalobos Lopez; Ambrosio Martinez-Ramirez; EsterMoran Mentado; Socorro Castillo Montel; MJG Construction and Homebuilders, Inc. d/b/a MJG Construction; KMAC of the Carolinas, Inc.; Eufacio Garcia; Everado Jarmamillio; Garcia Parra Insulation, Inc.; J&J Construction; Jose Nino; Jose Manuel Garcia; Eason Construction, Inc.; Vi ncent Morales d/b/a Morales Masonry and Miller/Player & Associates, Defendants,

Of Which Marick Home Builders, LLC and Rick
Thoennes are the Res pondents-Petitioners.

Appellate Case No. 2019-000038

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Oconee County Alexander S. Macaulay, Circuit Court Judge

Opinion No. 28071 Heard October 14, 2020 – Filed December 8, 2021

AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED

Robert T. Lyles Jr. and Lee Anne Walters, both of Lyles & Associates, LLC, of Ch arleston, for PetitionersRespondents.

Jason M. Imhoff, of Kenison Dudley & Crawford, LLC, of Greenville, for Re spondents-Petitioners.JUSTICE JAMES: This appeal stems from a constr uction defect lawsuit involving
waterfront townhomes on Lake Keowee in Oc onee County. After a two-week trial, Petitioners-Respondents Stoneledge at Lake Keowee Owners' Association, Inc. (the HOA) received plaintiff's verdicts ag ainst several defendants, including Respondents-Petitioners Marick Home Builder s, LLC and Rick T hoennes. Marick Home Builders, Thoennes, a nd other defendants appealed, and in a pair of published opinions, the court of appeals affirmed in part and reversed in part. Stoneledge at Lake Keowee Owners' Ass’n, Inc. v. IMK Dev. Co., LLC , 425 S.C. 276, 821 S.E.2d 509 (Ct. App. 2018) (hereinafter Stoneledge I ); Stoneledge at La ke Keowee Owners' Ass’n, Inc. v. IMK Dev. Co., LLC , 425 S.C. 268, 821 S.E. 2d 504 (Ct. App. 2018) (hereinafter Stoneledge II ).

We granted several writs of certiorari to review the court of appeals' decisions. In this opinion, we review Stoneledge I and address the trial c ourt's (1) jury charge, (2) denial of Marick's directed verdict mo tions, (3) finding of amalgamation, and (4) calculation of damages. 1 We affirm the court of appeal s as to the jury charge and as
to the trial court's denial of Marick's motio ns. We reverse the court of appeals as to amalgamation. We affirm in part and reverse in part the court of appeals as to the amount of the judgment in favor of the HOA and remand to the circuit court for final calculation and entry of judgment consistent with this opinion.

BACKGROUND

Immersion into the facts of this case and its knotty trial and appellate issues is not for the weary. In Stoneledge I , the court of appeals accurately summarized the pertinent facts and legal issues, but for easie r reading, we will restate most of them. In 2002, Bostic Brothers Construction, Inc. (Bostic) began co nstruction on a large luxury townhome project in Oconee Count y on Lake Keowee (Stoneledge). Construction of Stoneledge was divided into Phase I and Phase II. This litigation is limited to the thirty-seven units built during Phase I. Like other townhome communities, a homeowners' as sociation would be respons ible for maintaining the
common areas and the exterior of the buildings. The stone -clad, waterfront

1 To ensure a complete discussion of the cal culation of damages in this case, we have addressed issues raised by the HOA and Bos tic Brothers Construction, Inc. in their related appeal. We have issu ed a separate opinion addressi ng the other issues raised in that appeal. Stoneledge at Lake Keowee Owners' A ss’n, Inc. v. IMK Dev. Co.,
LLC , Op. No. 28070 (S.C. Sup. Ct. filed De cember 8, 2021) (Howard Adv. Sh. No. 43 at 11).townhomes were marketed as "quality" construction and "maintenance free." A marketing brochure touted "pleasurable e xperiences all year long." Unfortunately for the homeowners, this turned out not to be the case.

Bostic was the original general contract or on the project and was a part-owner of the original development company, Keowee Townhouses, LLC. At the time, Bostic was a large construction company w ith several other projects throughout the Southeast. By late 2004, Bostic had problems finishing other jobs and ceased operations at Stoneledge; at that time, only a few Stoneledge units had been completed and sold. A homeowner comp ared Stoneledge to a "ghost town" and noted Bostic had completed the exteriors of the unsold units but had not finished the interiors before walking away. Stonele dge was on the brink of foreclosure.

In March 2005, Keowee Townhouses es caped foreclosure by selling the entire Stoneledge project, including the remaining twenty-five or so unfinished units in Phase I, to IMK Development Company, LLC. IMK is comprised of Integrys Keowee Development, LLC (IK) and Marick Home Builders, LLC (Marick). IK's members include William Cox and Larry Lo llis. Marick's managing member and
construction license holder is Rick Thoennes. IK provided the funding to complete construction, and Marick became the gene ral contractor and completed Phase I.

Marick's site superintendent, Nathan Hornaday, testified he walked through the units shortly after IMK purchased the pr oject to inspect for damage and to make a list of everything that needed to be fixe d. He testified to the overall condition of the units and explained, "[M]ainly everythi ng was finished except for, I think, two
or three units. I'm not sure. And those un its had all the exterior done. They didn't
have sheetrock inside of th em, but I believe -- I'm not su re, but I believe everything else was finished." Hornaday testified the exterior of the units, including the roofs, porches, decks, and siding, had been completed and that only two or three units needed doors installed. Hornaday testified Marick intended to fix all of the problems
with the Phase I units.

Hornaday testified he pulled building permits needed to complete the unfinished units. The work description on a majority of the permits stated Marick was to "Complete Townhome from Rough-in St age," but a few of the permits stated Marick was to "Complete Townhome from Foundation St age." According to the permits, Marick estimated that the cost to complete the remaining units totaled more than $1.4 million. Marick worked to complete the unfinished units but also undertook repairs on some of the finished units. For example, Marick addressed avariety of issues raised by Steven Tayl or and Robert White, who owned finished townhomes, and contracted with a waterp roofing company to apply a waterproof coating to all of the Phase I d ecks and porches.

IMK created the HOA in 2005, and the HOA board was comprised of IMK representatives—including Cox, Lollis, an d Thoennes. A homeowner testified HOA board business was regularly conducted, but he noted there was not a lot of
interaction between the board and the homeowners. IMK remained in control of the HOA board until September 2008, when IMK tu rned control of the board over to the homeowners. IMK sold Stoneledge to a ne w developer, S.D.I./Ludwig Corporation,

LLC.

In late 2008 or early 2009, the homeo wner-controlled HOA began receiving numerous requests for repairs of damage caused by water intrusion, and it did not take long for the HOA to realize it could not afford the repairs. The HOA paid to fix what it deemed "emergencies" and hired an engineering company to look deeper into the problems. Destructive testing re vealed substantial wa ter damage throughout Phase I. In May 2009, the HOA filed this action against a myriad of defendants, including developers, general contractors, subcontractors, and other individuals.
The HOA asserted several caus es of action, including the ones pertinent to this appeal: negligence, breach of the implied warranty of workmanlike service, breach of the implied warranty of habitability, a nd breach of fiduciary duty. Extensive discovery ensued, but the case finally made it to trial.

During the two-week trial, the defenda nts did not dispute the HOA's claim of faulty construction. All parties agreed the HOA's actual damages claim was limited to the cost of repair. Th e main disputes centered upon the scope and cost of those repairs and which defendants were responsible. 2

Derek Hodgin, the HOA's forensic engi neer, testified he found damage at every place he made a test cut. He tes tified water intrusion had caused extensive damage to roofs, windows, balconies, a nd foundations. He also testified the firewalls separating the units had been im properly installed. Hodgin testified the observations made by Marick when it t ook over the project triggered Marick's obligation as general contractor to pe rform a more thorough investigation to

2 Bostic asserted a statute of limitations defense. That defens e was addressed by the court of appeals in Stoneledge II and is the subject of our companion opinion in this

case.ascertain the source of the problems. Hodgi n testified to a broad, extensive scope of repair. Bostic's expert, Richard Moore, presented a narrower, more surgical scope of repair. Estimators testified it would co st $6,309,197 to implement Hodgin's scope of repair and slightly le ss than $4,000,000 to implemen t Moore's scope of repair.

Many defendants settle d before and during trial. When the jury began deliberations, the only remaining defe ndants were Bostic, Marick, IMK, IK, Thoennes, Cox, and Lollis. The jury retu rned verdicts for the HOA as follows:

- $3,000,000 for negligence agains t Bostic and IMK/Marick;

- $1,000,000 for breach of the implied warr anty of workmanlik e service against Bostic and Marick;

- $1,000,000 for breach of fiduciary dut y against IMK, IK, Thoennes, Lollis,
and Cox.

After the jury verdicts were read, counsel for the HOA expressed confusion
and asked the trial court if the verdicts we re "cumulative," and the trial court replied that it thought they were. Counsel for the defendants did not comment on this exchange, and no one, including the trial court, explained their understanding of
what "cumulative" meant. As we will explain, this confusion could have been completely avoided if just one party had requested the trial court to order the jury to
reform its verdicts to refl ect the same award of actual damages for each cause of
action.

The trial then proceeded to the da mages apportionment phase as to the negligence and breach of warranty verdic ts. After hearing brief arguments from counsel on apportionment, the jury allocat ed 60% of the negligence verdict against Bostic and 40% against IMK/Marick. The jury allocated 70% of the breach of implied warranty verdict against IMK/Marick 3 and 30% against Bostic.

3 The implied warranty verdict form lists Bo stic and Marick as the potentially liable defendants; however, the subsequent apportionment form lists Bostic and "IMK/Marick" for the implied warranty awar d. The record does not reveal why IMK was included on the apportionment form. In any event, IMK was dismissed from the action while the case was pending before the court of appeals.The trial court issued a Form 4 order entering judgment against Bostic and IMK/Marick in amounts reflecting the a pportionments. The order also entered judgment against the five breach of fiduc iary duty defendants in the amount of $200,000 each (obviously a division of $1,000, 000 by five). Thereafter, counsel for the HOA appropriately notified the trial c ourt that the HOA had previously received $ 2,855,911.77 in settlements from other Phase I defendants.

The parties timely filed post-trial moti ons, and, upon motion of the HOA, the
trial court amended the three verdicts to award $5,000,000 to the HOA for each cause of action, subject to the apportionment per centages. The trial court then calculated the setoff of prior settlements pa id by other Phase I defendants.

Marick, Thoennes, and Bostic appealed, 4 and the court of appeals issued two published opinions: Stoneledge I , 425 S.C. 276, 821 S.E.2d 5 09 (Ct. App. 2018) and Stoneledge II , 425 S.C. 268, 821 S.E.2d 504 (Ct. App. 2018). In Stoneledge I , the court of appeals reversed the trial court' s decision to raise the three verdicts to $5,000,000 each, affirmed the trial court's denial of directed verdict motions, affirmed the trial court's "finding" of am algamation, and adjusted the trial court's calculation of the final judgments. This Court granted cross-petitions for writs of certiorari arising from both Stoneledge I and Stoneledge II . This opinion is our
review of Stoneledge I

.

DISCUSSION

The parties argue the trial court erred in its: (1) jury charge, (2) denial of directed verdict motions, (3) finding of amalgamation, and (4) calculation of damages to be awarded on the three causes of action at issue.

A. Jury Charge

Marick argues the trial court erred by (1 ) not charging the jury that Marick could be held liable only for work it perf ormed at Stoneledge and (2) charging the jury on breach of implied warranty of habita bility. Marick contends the trial court's errors were prejudicial and require reversal . The court of appeals affirmed the trial court on those points and also rejected the HOA's preservation argument. Stoneledge

4 IMK, IK, Lollis, and Cox also appealed, but the HOA's actions against them were dismissed during briefing at the court of app eals. The record does not reflect whether
these dismissals arose from sett lement or some other event.I , 425 S.C. at 286-92, 821 S.E.2d at 514-17. We agree with the court of appeals' entire analysis and therefore affirm.

B. Directed Verdict

The court of appeals affirmed the tria l court's denial of Marick's directed
verdict motion as to the HOA's breach of implied warranty of workmanlike service
claim and affirmed the trial court's denial of Marick's motion for a partial directed verdict on the negligence claim. Id. at 293-96, 821 S.E.2d at 518-20. Marick argues this was error. We agree with the court of appeals' analysis of these two issues and
therefore affirm.

C. Amalgamation (Single Business Enterprise Theory)

Actions to pierce the corporate veil and to find a party responsible under the alter-ego theory lie in equity. Oskin v. Johnson , 400 S.C. 390, 397, 735 S.E.2d 459, 463 (2012). Likewise, an action to am algamate parties lies in equity. See Pertuis v. Front Roe Rests., Inc. , 423 S.C. 640, 648, 817 S.E. 2d 273, 277 (2018) (noting equitable principles govern the applica tion of amalgamation). Therefore, our
standard of review on this issue is de novo and allows us to find facts in accordance with our own view of the preponderance of the evidence. Oskin , 400 S.C. at 397,
735 S.E.2d at 463. Despite this broad standard of review, we are not required to disregard the trial court's findings of fact, a nd we are mindful the trial court sits in a better position to assess witness credibility. Id.

South Carolina first recogni zed the theory of amalgamation in Kincaid v. Landing Development Corp. , 289 S.C. 89, 96, 344 S.E. 2d 869, 874 (Ct. App. 1986), in which the court of appeals held "an am algamation of corporate interests, entities, and activities . . . blur[red] th e legal distinction between [t hree related] corporations and their activities . . . ." Since then, th is Court and the court of appeals have discussed the theory on several occasions. See Kennedy v. Columbia Lumber & Mfg.

Co. , 299 S.C. 335, 340-41, 3 84 S.E.2d 730, 734 (1989); Mid-South Mgmt. Co. v. Sherwood Dev. Corp. , 374 S.C. 588, 604-05, 649 S.E. 2d 135, 144 (Ct. App. 2007); Pope v. Heritage Cmtys., Inc. , 395 S.C. 404, 417-20, 717 S.E.2d 765, 772-73 (Ct. App. 2011); Magnolia N. Prop. Owners' Ass'n, Inc. v. Heritage Cmtys., Inc. , 397
S.C. 348, 358-60; 725 S.E.2d 112, 117-18 (Ct. App. 2012). We recently formally recognized and refined this theory in Pertuis , where we referred to the amalgamation theory as "the single business enterprise theo ry." 423 S.C. at 651, 817 S.E.2d at 278.
We will use those terms interc hangeably in this opinion.The parties have not raised this point, but the only decision made by the trial court regarding amalgamation was to deny Marick and Thoennes's directed verdict motion on that issue. The trial court never made a final ruling on the merits of the amalgamation claim, which was an equitable claim to be decided by the trial court, not by the jury. Even if the claim was to be decided by the jury, there was no jury charge, closing argument, verdict form, or jury verdict on amalgamation. During the post-trial motion stage, Marick and Thoennes argued only that the trial court erred in denying their motion for a directed verdict. In any event, for the duration of this appeal, the parties have treated the trial court's denial of the directed verdict motion as a final finding by the trial cour t on the merits, and th e court of appeals
treated it as such. Because the affected parties have treated the amalgamation claim as having been ruled upon on the merits, we will address the clai m on the merits.

The HOA originally sued IMK, IK, Marick, Cox, Lollis , and Thoennes under the theories of amalgamation, alter ego, a nd piercing the corporate veil. However, at trial, the HOA conceded the theories of piercing the corporate veil and alter ego were not applicable and advised the tria l court it was pursuing the theory of amalgamation as to IMK, Marick, and Thoenne s. The trial court denied Marick and
Thoennes's motion for a directed verdic t on amalgamation, finding there was sufficient evidence of "self-dealing" to send that issue to the jury.

The court of appeals correctly noted the trial court c onducted no analysis regarding the amalgamation of IMK, Marick, and Thoennes. Stoneledge I , 425 S.C. at 298, 821 S.E.2d at 520. Perhaps that is so because the trial court considered the issue only at the directed verdict stage a nd never decided the claim on the merits. Marick argues the court of appeals erred in affirming the trial court's amalgamation of Marick with IMK. Thoennes argues the court of appeals erre d in affirming the trial court's amalgamation of him with IMK. Thoennes also argues there is no authority for the proposition that he, as an individual, can be amalgamated with a business entity such as IMK. 5 We agree with Marick and Thoennes.

In Pertuis , a restaurant manager was a minor ity shareholder in a corporation
that owned the restaurant. 423 S.C. at 644, 817 S.E.2d at 275. The majority shareholders in this corporation owned sh ares in three other corporations. The restaurant manager claimed these three othe r corporations and the corporation that owned the restaurant were amalgamated in to a single entity. The manager claimed

5 Marick and Thoennes do not contest the tria l court's amalgamation of their interests
with one another.this amalgamation entitled him to distributions from the three other corporations. We surveyed the law from several other jurisdictions and summarized the single business enterprise theory as follows:

[W]here multiple corporations have unified their business operations and resources to achieve a common business purpose and where adherence to the fiction of separate corporate identities would def eat justice, courts have refused to recognize the co rporations' separateness, instead regarding them as a si ngle enterprise-in-fact, to the extent the specific facts of a particular situation warrant.

Id. at 652-53, 817 S.E.2d at 279. We acknowledged "corporations are often formed for the purpose of shielding shareholders from individual liability[,]" and we noted "there is nothing remotely nefarious in doing that." Id. at 655, 817 S.E.2d at 280. Thus, we held the single business enterprise theory requires more than just a showing that the various entities' operations are inte rtwined. For a court to combine different corporate entities into a single business enterp rise, there must also be a showing of "bad faith, abuse, fraud, wrongdoing, or in justice resulting from the blurring of the entities' legal distinctions." Id. at 655, 817 S.E.2d at 281. We cautioned, "[a]s with other methods of piercing the corporate form that have previously been recognized in South Carolina, equitable principles gove rn the application of the single business enterprise remedy, and this doctrine 'is not to be applied without substantial
reflection.'" Id. (quoting Drury Dev. Corp. v. Found. Ins. Co. , 380 S.C. 97, 101, 668 S.E.2d 798, 800 (2008)). We made clear the burden of proof lies with the person seeking to prove the existence of a single business enterprise. Id.

IMK, a limited liability company, was cr eated to hold title to Stoneledge.
IMK's members were IK and Marick, each holding a 50% in terest in IMK. IK's members were Lollis (20%), Cox (40%), and Tim Roberson (40%). Marick's members were Thoennes (50% ) and Thoennes's son (50%). The following trial testimony provides greater insight into IM K's structure and how these entities and
individuals conducted business.

Lollis testified he invested in Stonele dge at Roberson's behe st. Lollis testified he was strictly an investor; he claimed he did not have any other involvement in IMK and was not familiar with IMK's day-to-day business. Lollis te stified he did not know whether IK participated in the sale of Stoneledge units . Lollis acknowledged he received money from IMK' s sale of units, and he te stified he did not knowwhether there was any mo ney left in IMK when IMK sold Stoneledge to S.D.I./Ludwig in 2008. Lollis testifie d he (1) did not know who was on the IMK HOA board, (2) did not attend any HOA board meetings, and (3) received copies of the meeting minutes in the mail. He tes tified he became aware of the construction defects only after the lawsuit was filed.

Cox, a managing member of IK, testif ied IK was formed to provide the investment capital needed to purchase and fund the Stoneledge project. Regarding the relationship between Marick and IK, he testified "Mar ick Home Builders was to provide the construction at their cost, and IK provided the invest ment. And [IK] did the books for IMK. And the agreement was we would split the profits [from the sale of the units]." Cox testified a couple of the salespeople for IMK were not employees
of IK but were housed in IK's offices and us ed IK's email. Cox testified Marick was in charge of supervising th ese "contract salespeople."

Cox testified he negotiate d IMK's sale of Stoneledge to S.D.I./Ludwig. He
testified that sometime before the sa le, he learned Marick owed money to S.D.I./Ludwig and that Marick pledged its pr ofits from Stoneledge as collateral. Cox testified IK sold S.D.I./Ludwig its interest in IMK for cash, plus a percentage of the gross sales price for any remaining unsold units. Cox testified the funds IMK
received from the sale were disbursed to IK 's members. Cox testified that shortly after the sale, IMK turned the HOA board over to the homeowners. Cox testified IMK was insolvent and did not have any money to satisfy a possible judgment in
favor of the HOA.

Thoennes testified he wa s the managing member and held the construction license for Marick. He testified his son, Rick Thoennes III, wa s also a member of
Marick. Thoennes summarize d the relationship between IK and Marick, stating "[IK] put in money; I put in hard labor." He testified that before IMK purchased the project, he inspected the units to make su re the project would be a good investment.
Thoennes testified Marick charged IMK for Marick's construction costs. He explained he would submit an invoice to IM K, IMK would write a check to Marick, and Marick would pay its suppliers, empl oyees, and subcontractors. When asked whether Marick was responsible for the ma nagement of the St oneledge sales team, Thoennes replied, "For the most part[.] IM K had some responsibility in that too. I mean, the sales was -- all ha d to be approved by IMK a nd what we were doing, and
then sales materials and all of those things. So certainly IMK had some responsibility for the sales." Thoennes testified it was Marick's decision as to what
work needed to be done on the Phase I units. Thoennes testified that when a unitowner had an issue, the owner would not go through a "formal process" by bringing
the issue to the IMK-run HOA board but would bring it directly to him or Hornaday. Thoennes acknowledged he was an HOA boa rd member. Thoennes testified about his many roles at Stoneledge:

It depends on which hat I had on on that particular day. I've been -- [counsel for th e HOA] said I sold them. Somebody else said I built th em, and somebody else said
I'm a director on the board.

. . . .
So I guess it depends on whic h hat I had. You know, on some days I would go out and jump somebody's car, so I guess I was a mechanic too. But I just -- you know, I didn't have the pleasure of being able to say, I'm a director now. At seven o'clock, I'm a contractor. At eight o'clock, I'm a marketing person. I didn't have that luxury. . . . It was very informal.

Thoennes testified Marick s hut down its business shortly after the Stoneledge project
failed.

Some of the homeowners were confused about the distinctions between and the roles these companies and individuals played. Homeowner Taylor testified he
made no distinction between IMK and Marick. Further, Homeowner White testified, "IMK, to me, in terms of the faces of the folks that were part of IMK were Rick
Thoennes and his son and Tim Roberson." White testified it was not until "later on"
that he realized IMK was a combina tion of IK and Marick.

In their directed verdict motion on the amalgamation issue, Marick and Thoennes argued against the HO A's "piercing the corporate veil, amalgamation, alter ego, throw everything up against the wall, they're-all-together-and-everything

should-stick analysis." Marick and Thoe nnes presented a detailed argument to the trial court as to why the theories of pi ercing the veil, alter ego, and amalgamation should not be applied in this case. The HOA conceded that the th eories of piercing the corporate veil and alter ego were inapp licable to Marick and Thoennes but argued amalgamation was a viable theory. The tr ial court denied Ma rick and Thoennes'smotion for directed verdict on the amalgama tion claim, stating there were factual issues for the jury to resolve.

In addressing the merits of the amal gamation claim, the court of appeals acknowledged this case was tr ied before our decision in Pertuis but found the trial court "failed to conduct any meaningful analysis suppor ting an amalgamation of
interests." Stoneledge I , 425 S.C. at 298, 821 S.E.2d at 520. Nevertheless, the court of appeals affirmed the trial court in resu lt, holding, "[O]ur review of the record reveals evidence of a unified operation be tween Marick and the amalgamated parties
as well as evidence of se lf-dealing that resulted from a blending of their business enterprises." Id. The court of appeals found the "bad faith, abuse, fraud, wrongdoing, or injustice" requirement was met because Thoe nnes had "at least constructive knowledge of the pervasiv e construction defects . . . but was nevertheless directly involved in IMK and Marick's marketi ng and sale of the units."
Id. at 299-300, 821 S.E.2d at 521. The court of appeals concluded, "Given that Marick's and IMK's profits were entirely dependent on IMK's ability to sell the units, their operations were clearly in pursuit of a common business purpose, albeit to the
detriment of the HOA members." Id. at 300, 821 S.E.2d at 521.

Because Marick and Thoennes are the only parties appealing this issue, we do
not address the trial court's "decision" to amalgamate IMK with IK, Cox, and Lollis.
Our de novo review of the evid ence compels us to hold th e court of appeals erred in affirming the trial court's "decision" to amalgamate IMK, Marick, and Thoennes.

See Pertuis , 423 S.C. at 655, 817 S.E.2d at 281 (explaining the single business enterprise theory should only be applied after substantial reflection ). As we held in

Pertuis , a party seeking to impose the existen ce of a single business enterprise must show both (1) the intertwining of the opera tions of the entities and (2) evidence of "bad faith, abuse, fraud, wrongdoing, or in justice resulting from the blurring of the entities' legal distinctions." 6 423 S.C. at 655, 817 S.E.2d at 280-81.

6 In Pertuis , we adopted the reasoning of the Te xas Supreme Court as to the single business enterprise theory. 423 S.C. at 655, 817 S.E.2d at 280. We noted the Texas Supreme Court has enumerated eight nonexc lusive factors to be considered in determining whether constituent corporations have not been maintained as separate
entities. Id. at 652, 817 S.E.2d at 279 n.5 (quoting SSP Partners v. Gladstrong Invs. (USA) Corp. , 275 S.W.3d 444, 450-51 (Tex. 2008)). Ho wever, as we clearly stated
in Pertuis , the Gladstrong court cautioned "the limitation on liability afforded by the corporate structure can be ignored only when the corporate form has been used asSpecifically, we hold the HOA failed to prove "bad faith, abuse, fraud, wrongdoing, or injustice resu lting from the blurring of the entities' legal distinctions" sufficient to trigger the application of a single business enterprise between IMK, Marick, and Thoennes. The only evidence th e court of appeals cited with regard to "bad faith, abuse, fraud, wrongdoing, or injustice" was:

Thoennes, as Marick's principal and license holder, had at least constructive knowledge of the pervasive construction defects that plagued the project, but was neverthe less directly involved in IMK and Marick's marketing and sale of th e units. Given that Marick's and IMK's profits were entirely dependent on IMK's ability to sell the units, their operations were clearly in pur suit of a common business purpose,
albeit to the detriment of the HOA members.

Stoneledge I , 425 S.C. at 299-300, 821 S.E.2d at 521 (footnote omitted). Viewing the facts of this case with the requisite he sitancy to invade the LLC form, we do not believe these facts warrant the application of the single business enterprise theory. As noted above, in Pertuis , we held the single business enterprise theory requires more than just a showing that the variou s entities' operations are intertwined. A "common business purpose" is simply not enough. 423 S.C. at 653, 817 S.E.2d at

279. For a court to combine different business entities into a single business enterprise, there must also be a showing of "bad faith, abuse, fraud, wrongdoing, or injustice resulting from the blurring of the entities' legal distinctions." Id. at 655, 817 S.E.2d at 281. The conduct of Marick, Thoennes, and IMK did not rise to this
level. Like other methods of invading the corporate form, invocation of the single business enterprise theory should be reserved for drastic situations and is the rare exception, not the rule.

For the same reasons, we conclude th e evidence does not support a finding of amalgamation of Thoennes with IMK. In a ddition, we conclude the single business enterprise theory is not to be used to am algamate an individual with a company. The

part of a basically unfair device to achieve an inequitable result." Id. (internal quotation marks omitted) (quoting Gladstrong , 275 S.W.3d at 451).single business enterprise theory exists as an equitable remedy for plaintiffs whenever they have been wronged by bus iness entities with blurred identities. 7

Thus, under the facts of this case, we refuse to disregard the corporate form by amalgamating IMK, Marick, a nd Thoennes, and we therefore reverse the court of appeals on this issue. We express no opini on as to the viability of other methods of invading the LLC form in this case, su ch as veil piercing or alter ego.

D. Damages

All of the parties argue the court of appeals erred in some manner when it
recalculated the trial c ourt's damages award.

The HOA concedes it seeks recovery for a single element of damage—the cost to repair Phase I construction. No one disputes that point. The HOA argued to the jury that it was entitled to $6,309,197 in damages, corresponding to the amount testified to by its expert. All defenda nts argued the HOA was entitled to the amount

7 Other jurisdictions have held the single bus iness enterprise theory is confined to the imposition of "shared liability on entitie s that are affiliated with a defendant entity" and have refused to apply the theory "to impose liability on individual persons." David J. Ma rchitelli, Annotation, Disregard of Separate Existence of Corporations Under Single Business Enterprise Theory , 50 A.L.R. 7th Art. 2 § 24 (2020); see Angotti & Reilly, Inc. v. Ri ncon Residential Towers LLC , No. A140648, 2015 WL 7294458 (Cal. Ct. App. Nov. 19, 2015) (applying California law); Manhattan Constr. Co. v. Phillips , No. 1:09-cv-1917, 2012 WL 13001890 (N.D. Ga. Apr. 9, 2012), aff'd sub nom. Manhattan Constr. Co. v. Place Properties LP , 559 F. App'x 856 (11th Cir. 2014) (applying Georgia law); Nussli US, LLC v. Nola Motorsports Host Comm., Inc. , No. 15-2167, 2016 WL 40638 23 (E.D. La. July 29, 2016) (applying Louisiana law); Andretti Sports Mktg. La., LLC v. Nola Motorsports Host Comm., Inc. , 147 F. Supp. 3d 537 (E.D. La. 2015) (applying Louisiana law); Sun Triangle, Inc. v. Image Stores, Inc. , No. 96-3877, 1998 WL 252158 (E.D. La. May 15, 1998) (applying Louisiana law); Spurgeon v. Leleux , No. 6:11-CV-01807, 2019 WL 138388 (W.D. La. Jan. 8, 2019) (applying Louisiana law); Medve Energy
Ventures LLC v. Warhorse Oil & Gas LLC , No. 6:17-cv-01336, 2018 WL 7051038 (W.D. La. Nov. 21, 2018), report and recommendation adopted , 2019 WL 303122 (W.D. La. Jan. 17, 2019) (a pplying Louisiana law).testified to by the defense expert—slightly less than $4,000,000. The jury awarded the HOA damages as follows:

- $3,000,000 for negligence agains t Bostic and IMK/Marick;

- $1,000,000 for breach of the implied warr anty of workmanlik e service against Bostic and Marick;

- $1,000,000 for breach of fiduciary dut y against IMK, IK, Thoennes, Lollis,
and Cox.

Immediately after these verdicts were read , the trial court sent the jury out in preparation for the apportionment phase of the trial. Counsel for the HOA and the trial court engaged in an exch ange that is very important to our review of the trial court's reformation of the jury verdicts:

Counsel for the HOA: I have a question about the
verdict. And I was concerne d about this occurring. I'm not sure, looking at the verdict, what the jury is awarding

me.

Trial Court: They're awarding you what you asked for because you asked for three sepa rate verdicts. Oh, excuse me. I take that back. [Bostic's counsel] asked.

Counsel for the HOA: Yes, sir, he did. And so it is a cumulative award against diffe rent defendants of five
million dollars?

Trial Court: Well, the way the De fendants have been treating it, yes, it is cumula tive because they've been treating them all as separate litt le things that they want -- what is it? -- apportionment on this one and apportionment
on that one.

There was no explanation of what the word "cumulative" meant. No one asked the trial court to question the ju ry about its intent behind aw arding verdicts in separate amounts nor did anyone ask the trial court to resubmit the damages issue to the jury with the instruction that the dollar amount of damages for each cause of action must
be the same.The apportionment phase of the trial took place immediately thereafter. After jury argument from the parties, apportionm ent forms for the negligence and breach of warranty claims were submitted to the jury. As to negligence, the jury found IMK/Marick 40% responsible and found Bos tic 60% responsible. As to breach of the implied warranty of workmanlike service, the jury found IMK/Marick 8 70% responsible and found Bostic 30% responsibl e. The trial court entered a Form 4 order awarding judgment. The judgment tota ls on this initial Form 4 mirrored the
above-stated verdicts on the three cl aims ($3,000,000 + $1,000,000 + $1,000,000).

The parties filed numerous timely post-trial motions. In the lead up to the hearing on the post-trial motions, the HOA in formed the trial court it had previously received $ 2,855,911.77 in settlements fro m other Phase I defendants. No one disputes that amount.

In its post-trial motion, the HOA requested the trial court to reform the jury's
verdict and to amend the initial Form 4 to re flect that the verdicts were "cumulative" by raising the negligence, breach of warra nty, and breach of fiduciary duty awards to $5,000,000 each. The trial court entered a revised Form 4, raising each award to $5,000,000. The trial court then applied seto ff to the negligence, breach of warranty, and breach of fiduciary duty awards a nd also applied apportionment to the negligence and breach of warranty awar ds. After setting off the $ 2,855,911.77 in settlements and applying appo rtionment to the negligen ce and breach of warranty awards, the trial court entered judgment on those two causes of action as follows: (1) as to negligence, $2,144,088.23 ag ainst Bostic and $857,635.29 against IMK/Marick and (2) as to breach of the implied warranty of workmanlike service, $ 2,144,088.23 against Marick and $643,226.47 agai nst Bostic. As previously noted, the jury found Bostic 60% responsible fo r the damages awarded for negligence and
found IMK/Marick 70% res ponsible for the damages awarded for breach of the implied warranty of workmanlike service. In calculating the foregoing figures, the trial court did not apply the apportionment statute to a defendant's share of liability
when that defendant was found to be more than 50% responsible. See S.C. Code Ann. § 15-38-15(A) (Supp. 2020) . However, the trial cour t did apply the statute to

8 As we stated in footnote 3, the verdict form first completed by the jury lists "Marick" for the breach of warranty awar d. The subsequent apportionment form completed by the jury lists "IMK/Marick" for the apportionment of the implied warranty award. This discre pancy is inconsequential for two reasons. First, IMK is not a party to this appeal, and second, no one asked for it to be rectified.a defendant's share of liability when that defendant was found to be less than 50% responsible.

As to the cause of action for breach of fiduciary duty, the trial court entered judgment on the revised Form 4 in th e amounts of $ 2,144,088.23 against IMK; $ 2,144,088.23 against IK; $2,144,088.23 against Cox; $2,144,088.23 against Lollis; and $ 2,144,088.23 against Thoennes. This reflects the trial court's application of setoff, but not apportionment, to the brea ch of fiduciary duty claim.

The court of appeals reversed the tria l court, substantially revising the trial court's computation of the various judgments. Stoneledge I , 425 S.C. at 302-03, 821
S.E.2d at 522-23.

1. "Cumulative" Verdict

The court of appeals reversed the tr ial court's decision to increase each judgment to $5,000,000, holding this invaded the province of the jury. Id. at 302, 821 S.E.2d at 522. We agree with the court of appeals on that point.

The HOA argues the court of appeals e rred in not affirming "the cumulative verdict of a single damage." The HOA a sserts its single damage was the cost to repair the units and that there was no eviden ce to support a finding of different actual damages for the three causes of action. Th e HOA contends "[t]he trial judge simply applied the jury's findings, based upon his extensive observation of the trial and the evidence presented, and correctly app lied the jury's verdict—$5,000,000—as the cumulative award for a single damage, regardle ss of the cause of action." In support of its argument, the HOA cites a now-depubl ished opinion of the court of appeals, Keeter v. Alpine Towers International, Inc. , Op. No. 2012-UP-692 (S.C. Ct. App. filed June 27, 2012). 9

9 Normally, we would not consider argumen ts citing to an unpublished decision. However, Keeter was a published decision at the time of this trial, and a petition for certiorari was pending in this Court when th e instant case was tried. The trial court and the parties relied upon Keeter when the instant case was tried; however, while the petition for certiorari was pendi ng with this Court to review Keeter , the parties
in Keeter submitted a joint motion to dismiss. Two years after this case was tried, the Court granted the parties' joint motion and ordered the court of appeals' opinionIn Keeter , the plaintiff was severely inju red in a fall during a high school recreational field day. Id. at *1. The jury returned a ve rdict for the plaintiff against
the lone defendant on three se parate causes of action: (1 ) $500 in actual damages for strict liability; (2) $900,000 in actual da mages and $160,000 in punitive damages for negligent design; and (3) $2,500,000 in actual damages a nd $950,000 in punitive damages for negligent training. Before th e jury was dismissed, and upon request of the plaintiff, the trial court inquired of th e jury whether it intended the three separate actual damages awards be adde d to result in a total award or whether it intended that the awards be separate for each cause of action. The forela dy responded the jury intended for the awards to be "cumulative," or added together. The trial court asked the same question as to punitive damages, and the forelady responded in the same
fashion. The defendant did not ask for furt her clarification. The court of appeals held that in the context that the plain tiff sought and could receive only one damages award for the same injury, the dialogue between the trial court and the forelady established the jury intended the damages aw ards for each cause of action be added together for a total award of $3,400, 500 actual damages and $1,110,000 punitive damages. Id . at *12.

The HOA seizes upon its a nd the trial court's use of the word "cumulative" immediately after the jury was released to establish all parties ag reed at that time
that each of the three verd icts were actually $5,000,000. We disagree. In light of the parties' reliance during the trial upon Keeter , which, again, was a published decision at the time of this trial, it was re asonable for the defendan ts to conclude the trial court intended the breach of warranty and negligence verdicts against Bostic
and IMK/Marick to be adde d together to amount to $4,000,000 and the breach of fiduciary duty verdicts against the rema ining defendants to remain at $1,000,000. 10

to be depublished. See Keeter v. Alpine Towers Int'l, Inc. , 410 S.C. 445, 766 S.E.2d 375 (2014).

10 The court of appeals also noted Marick's argument that the HOA should have been required to elect a remedy between the th ree causes of action. The court held Marick's argument was unpreserved because Mari ck did not object to the trial court's ruling that the awards were "c umulative." However, the c ourt of appeals went on to hold that setoff should be applied proportio nately to the three awards as to all defendants, including Marick . We agree with this me thod of setoff under the facts and posture of this case, a nd we conclude it moots Mari ck's election of remedies
argument.In the case before us, the parties agr ee the HOA sought and could receive only one actual damages award for each cause of action. However, no party asked the trial court to request the jury for any clarification of th e verdicts. The HOA submits no authority to support the trial court's re formation of the jury's verdict without receiving the input of the jury and relies upon the trial court's "extensive observation of the trial and the evidence presented." See Joiner v. Bevier , 155 S.C. 340, 355, 152 S.E. 652, 657 (1930) ("A jury's verdict should be upheld, when it is possible to do so, and carry into effect what was clearly the jury's intention. It is our duty to enforce a verdict, not to make it." (internal citation omitted)); Camden v. Hilton , 360
S.C. 164, 173, 600 S.E. 2d 88, 92 (Ct. App. 2004) ("[I]t is not for the trial court to say what it thinks the verdict should be."). Did the jury find the HOA proved damages of $5,000,000 for each cause of action, as the HO A claims? Perhaps, but perhaps not. Did the jury find the HO A proved damages of $4,000,000? Perhaps, but perhaps not. Absent further dialogue w ith the jury, there was simply no way for the trial court to tell without specu lating what the jury intended.

The trial court erred in reforming the verdicts on its own, absent a request from a party to resubmit the case to the jury with instructions that the dollar amounts
for each verdict had to be the same. See Rhame v. City of Sumter , 113 S.C. 151, 154, 101 S.E. 832, 833 (1920) ("While the verdict is unusua l, no effort was made to correct it before the jury had separated. His honor would have done so had he been requested to find out just what the jury meant, and had the ve rdict reformed."), overruled on other grounds by Rourk v. Selvey

, 252 S.C. 25, 164 S.E.2d 909 (1968);
Anderson v. Aetna Cas. & Sur. Co. , 175 S.C. 254, 282, 178 S.E. 819, 829 (1934) ("The law rather forbids this court assumi ng to take upon itself the powers, duties, rights, and privileges of a jury." (quoting Sanders v. Commonwealth Life Ins. Co. of Ky. , 134 S.C. 435, 440, 132 S.E. 828, 830 (1926))); Allegro, Inc. v. Scully , 400 S.C. 33, 49, 733 S.E.2d 114, 123 n.9 (Ct. App. 2012) ("If a jury verdict form is ambiguous or unclear, the jury should be returned to th e jury room in order to clarify or conform
the verdict to its intent before the jury is excused.").

The court of appeals correctly held th e trial court invaded the province of the jury by reforming the verdicts on its own. Stoneledge I , 425 S.C. at 302, 821 S.E.2d
at 522. We hold the silence of the defendants in the face of the trial court's statement
that the verdicts were "cumulative" wa s of no significance because, in light of

Keeter , the term "cumulative" was subject to a different meaning from what the plaintiff and the trial court intended. It was entirely reasonable for defense counsel
to take the trial court's comment as its c onclusion that the verd icts would be addedtogether, as the verdicts were in Keeter . Because no party re quested the trial court resubmit the verdict forms to the jury w ith instructions to make the verdicts consistent, we affirm the court of appeals' holding that the three verdicts must stand as delivered by the jury. We repeat that this entire problem and the appellate distress it has caused could have been avoided if ju st one party had reque sted the trial court to resubmit the verdicts to the jury with instructions to make them consistent.

We now turn to the application of setoff to the three verdicts.

2. Setoff

South Carolina courts have consiste ntly held "there can be only one satisfaction for an injury or wrong." Smith v. Widener , 397 S.C. 468, 471, 724 S.E.2d 188, 190 (Ct. App. 2012) (quoting Hawkins v. Pathology Assocs. of Greenville, P.A.

, 330 S.C. 92, 113, 498 S.E.2d 395, 407 (Ct. App. 1998)). "The refore, before entering judgment on a jury verdict, the court must reduce the amount of the verdict to account for any funds prev iously paid by a settling de fendant, so long as the settlement funds were paid to compensate the same plain tiff on a claim for the same injury." Id. at 471-72, 724 S.E.2d at 190 ("When the settlement is for the same injury, the nonsettling defendant's right to a setoff arises by operation of law."). "The right of setoff has existed under the common law for over 100 years." Riley v. Ford

Motor Co. , 414 S.C. 185, 195, 777 S.E. 2d 824, 830 (2015).

The Uniform Contribution Among Tortfeas ors Act (the Act) "represents the Legislature's determination of the pr oper balance betwee n preventing doublerecovery and South Carolina's 'strong pub lic policy favoring the settlement of disputes.'" Id. at 196, 777 S.E.2d at 830 (quoting Chester v. S.C. Dep't of Pub. Safety

, 388 S.C. 343, 346, 698 S.E.2d 559, 560 (2010)). Sec tion 15-38-50 of the Act codifies the principle of setoff for settlements paid by persons liable in tort to
another:

When a release or a covenant not to sue or not to enforce judgment is given in good fait h to one of two or more persons liable in tort for the same injury or the same wrongful death:

(1) it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others tothe extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and

(2) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

S.C. Code Ann. § 15-38-50 (2005).

a) Application of Setoff to the Breach of Fiduciary Duty
Award

The trial court applied setoff to the breach of fiduciary duty award against Thoennes, but the court of appeals revers ed concluding that because none of the
defendants who settled with th e HOA before and during trial were sued for breach of fiduciary duty, none of the settlement proceeds included damages directly resulting from breach of fiduciary duty. Stoneledge I , 425 S.C. at 302-03, 821 S.E.2d at 523. We agree seto ff does not apply to the breach of fiduciary duty award, but we
reach this conclusion fo r a different reason.

The HOA contends that because the da mages it sought for each cause of action
and because all the settlements it received were for the sa me injury—cost of repair— setoff applies to the breach of fiduciary du ty award. Bostic, Marick, and Thoennes argue setoff should not apply to the breach of fiduciary duty award, citing subsection 15-38-20(G) of the Act, which provides, "T his chapter does not apply to breaches of trust or of other fiduciary obligation." We agree with Bostic, Marick, and Thoennes.

As we noted above, "[t] he right of setoff has ex isted under the common law for over 100 years." Riley , 414 S.C. at 195, 777 S.E.2d at 830. We noted in Rutland v. South Carolina Department of Transportation that allowing a setoff "prevents an injured person from obtaining a double recovery for the dama ge he sustained, for it is 'almost universally held that there can be only satisfaction for an injury or wrong.'" 400 S.C. 209, 216, 734 S.E. 2d 142, 145 (2012) (quoting Truesdale v. S.C. Highway Dep't , 264 S.C. 221, 235, 213 S.C.2d 740, 746 (1975), overruled on other grounds by McCall v. Batson , 285 S.C. 243, 329 S.E.2d 741 (198 5)). The provisions of subsection 15-38-20(G) prohibiting the applica tion of setoff to a breach of fiduciary duty award are in derogation of this common law principle. We recently cited the settled rule that "[s]tatute s in derogation of the common law are to be strictly construed[,]" and "[u]nder this rule, a st atute restricting the common law will not beextended beyond the clear intent of the legislature." Eades v. Palmetto Cardiovascular & Thoracic, PA , 422 S.C. 196, 201, 810 S.E.2d 848, 850 (2018) (internal quotation marks omitted) (quoting Grier v. AMISUB of S.C., Inc

. , 397 S.C. 532, 536, 725 S.E.2d 693, 696 (2012)).

The Act is a part of Chapter 38. In fact, the Act is the only statutory scheme in Chapter 38. The Act governs the setoff of prior settlements paid by tortfeasors, and breach of fiduciary duty is a tort. Because subsection 15-38-20(G) of the Act provides Chapter 38 does not apply to breaches of trust or other fi duciary obligation, the General Assembly clearly intended Chap ter 38 to prohibit the application of setoff to a breach of fiduciary duty awar d. Therefore, we hold the $1,000,000 breach of fiduciary duty award against Thoennes is not subject to setoff.

b) Application of Setoff to the Breach of Warranty Award

Bostic argues the court of appeals e rred in holding setoff applies to the breach of warranty award. Bostic asserts that only the negligence award should be subject
to setoff. Bostic contends setoff is only available for tort claims and because breach of warranty is a contract claim, setoff is inapplicable.

Bostic is correct that claims for neg ligence sound in tort and claims for breach of warranty generally sound in contract. Bostic is also correct that the Act discusses
setoff in the context of tort claims. See § 15-38-50 (explaining setoff is available for "tortfeasors" who are "liable in tort"). The Act governs the setoff of prior settlements paid by those liable in tort, not those liable in contract. Howeve r, nothing in the Act prohibits the application of common law setoff to a claim founded in contract. See Riley , 414 S.C. at 195, 777 S.E.2d at 830 ("The right to setoff has existed at common law in South Carolina for over 100 years."). Therefore, setoff can be applied to the breach of warranty award.

c) Application of Setoff to the Negligence Award

All parties agree setoff applies to the negligence award. The parties disagree as to the setoff figures to be applied to ca lculate the final judgments. We make those
calculations below in subsec tion D.4 (Judgment Amounts).

3. Apportionment

Subsection 15-38-15(A) of th e Act provides for apportionment of liability among joint tortfeasors arising from tortious conduct:In an action to recover damages resulting from personal injury, wrongful death, or damage to property or to recover damages for economic loss or for noneconomic loss such as mental distress, loss of en joyment, pain, suffering, loss of reputation, or loss of companionship resulting from tortious conduct, if indivisible damages are determined to be proximately caused by more than one defendant, joint and several liability does not apply to any defendant whose
conduct is determined to be le ss than fifty percent of the
total fault for the indivisibl e damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault (comparative negligence), if any, of plaintiff. A
defendant whose conduct is dete rmined to be less than fifty percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.

S.C. Code Ann. § 15-38-15(A) (Supp. 2020). In this subsection, "the legislature abrogated pure joint and severa l liability for joint tortfeasors who are less than fifty percent at fault." Smith v. Tiffany , 419 S.C. 548, 552-53, 799 S.E.2d 479, 481 (2017).

As noted, breach of warranty claims gene rally sound in contract, not in tort, so the breach of warranty verdict was not subject to apportionment. However, at trial, the parties agreed the jury shoul d apportion responsibility for the breach of warranty award between Bostic and Marick. Under subs ection 15-38-15(A), Bostic is liable for the entire negligence verdict of $3,000,000, and Marick is liable for its apportioned share of $1,200,000. Marick is liable for the entire $1,000,000 breach of warranty verdict, and Bostic is liable for its apportioned share of $300,000. As we will now discuss, these amounts must be adju sted to take into account (1) pro rata
allocation between the verdicts for these tw o causes of action and (2) setoff of the prior settlements.

4. Judgment Amounts

The jury awarded $3,000,000 for neg ligence; $1,000,000 for breach of the implied warranty of workmanlike service; and $1,000,000 for br each of fiduciary duty, for a total award of $5,000,000 . The HOA receiv ed $2,855,911.77 in
settlements from other Phase I defendants. Ha d the jury been instructed to return
one consistent verdict of act ual damages, the application of setoff and the calculationof the net judgments after apportionment would have been simple. However, we find it appropriate to apply a pro rata allocation of the $2,855,911.77 setoff to the negligence and breach of warranty verdicts . Of course, we mu st also take into account the apportionment per centages rendered by the jury.

The court of appeals correctly held—but , as discussed above, for the incorrect reason—that the breach of fiduciary duty verdict against Thoennes was not subject
to setoff. Stoneledge I , 425 S.C. at 302-03, 821 S.E.2d at 523. The court of appeals also correctly held the $4,000,000 in combin ed verdicts against Bostic and Marick were subject to setoff in the amount of $ 2,855,911.77

. Id. However, the court of appeals mistakenly concluded this ca lculation would leave a $ 2,144,088.23 net judgment to be allocated be tween the negligence and breach of warranty verdicts.
Id. The correct figure is $1,144,088.23. Th e court of appeals correctly held "it would be proper to allocate three-four ths of the remaining judgment to the negligence cause of action and the remaini ng one-fourth to the [breach of warranty]
cause of action." Id.

As noted above, during the apportionm ent phase, the jury found Bostic was 60% responsible for the negligence awar d, Marick was 40% responsible for the negligence award, Marick was 70% respon sible for the breach of warranty award, and Bostic was 30% responsible for the br each of warranty award. Under subsection 15-38-15(A) of the Act, a de fendant whose conduct is found to be less than fifty percent of the total fault is liable for only that percentage of th e damages determined by the fact finder. Joint and several liability is assigned to defendants found liable for fifty percent or more of the damages. After applying the correct setoff, the apportionment percentages determined by the jury, and the apportionment statute, we hold the resulting judgments to be entered are as follows:

- Bostic : $ 858,066.17 for negligence (joint and several liab ility for prorated verdict after setoff) and $85,806.62 for breach of warranty (30% of prorated verdict after setoff)

- Marick : $ 286,022.06 for breach of warra nty (joint and several liability for prorated verdict after setoff) and $ 343,226 .47 for negligence (40% of prorated verdict after setoff)

- Thoennes : $1,000,000 for breach of fiduc iary duty (no setoff applied)

These figures do not take into account the HOA's monetary settlements (if any) with IMK, IK, Cox, and Lollis during th e pendency of this appeal.CONCLUSION

Based on the foregoing, we affirm in pa rt and reverse in part the court of appeals. We remand this matter for fi nal calculation and entry of judgment consistent with our opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BEATTY, C.J., KITTREDGE, HE ARN and FEW, JJ., concur.