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2004-UP-040 - Spinner v. Adams

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Robert C. Spinner and Shirley Spinner,        Appellants,

v.

William Adams and Celeste Adams,        Respondents.


Appeal From York County
John Buford Grier, Special Circuit Court Judge


Unpublished Opinion No. 2004-UP-040
Submitted November 19, 2003 – Filed January 21, 2004


AFFIRMED


Douglas F. Gay, of Rock Hill, for Appellants.

Lucy London McDow, of Rock Hill, for Respondents.

PER CURIAM:  Robert and Shirley Spinner appeal the trial court’s decision ruling they failed to prove the barking of the dogs of William and Celeste Adams constituted a nuisance.  We affirm. [1]

The Spinners brought this action against the Adamses alleging the barking of the Adamses four dogs constituted a nuisance.  They sought damages and an injunction. 

At trial, Robert Spinner testified the dogs began barking immediately after the Adamses moved into their home.  He explained he repeatedly asked his neighbors to quiet the dogs and although he initially received reassurances, he was later told he would have to live with the situation.  Spinner claimed his work as a truck driver was affected because the barking interfered with his sleep.  Shirley Spinner testified she was once so upset about the barking and about her husband working without sleep that she thought she was having a heart attack.  Tests later revealed she did not suffer any cardiac event.  The Spinners called animal control, made numerous complaints to the York County Sheriff’s Office, swore out warrants against the Adamses, and sued the Adamses on more than one occasion.  One deputy who responded to some of the Spinners’ calls testified the Adamses dogs were barking at all times when she was there and that she spoke with the Adamses, advising them of the county noise ordinance and asking them to quiet their dogs. 

Celeste Adams testified she tried to keep her dogs from bothering the neighbors.  She testified she tried keeping them indoors at night, putting special collars on them, and directing a sprinkler at their doghouse so they would stay inside.  She testified the barking continued at times and that in a final effort to end the strife, approximately one year before the hearing, she had the dogs’ vocal cords surgically notched so they could no longer bark. 

The Adamses also presented evidence the Spinners were unduly sensitive.  A county attorney testified all parties attending a mediation hearing were willing to work out a solution except for Robert Spinner.  Other neighbors testified the dogs were not a problem and some alleged the Spinners had harassed them regarding even occasional mild barking by their own dogs.  One neighbor stated that when Robert Spinner called to complain about her dog barking she noticed he had his windows open.  Spinner himself testified he did not think he should have to close his windows in order to lessen his disturbance by his neighbors’ dogs. 

LAW/ANALYSIS

The Spinners argue the trial court erred in refusing to consider a tape of the Adamses’ dogs barking.  They also argue the court erred in failing to apply county provisions that require pet owners to prevent their pets from becoming a public nuisance.  Neither issue is preserved.

Although Robert Spinner testified he brought tape recordings of the Adamses’ dogs to court with him, the record does not reflect an attempt to mark or submit the tapes as evidence or to proffer their contents to the court.  Thus, it does not appear the court was asked to consider the tapes.  The court was also not asked to consider or apply any particular county ordinance.  The Spinners did not mention any specific ordinance in their pleadings, in their hearing before the trial court, or in their brief to this court.  To be preserved for appellate review, an issue must be raised to and ruled upon by the trial court.  Mizell v. Glover, 351 S.C. 392, 399, 570 S.E.2d 176, 180 (2002).  Furthermore, short conclusory statements without supporting legal authority, such as the Spinners’ two-paragraph argument regarding the York County Code, are deemed abandoned on appeal.  Glasscock, Inc. v. U.S. Fidelity & Guaranty Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001).

The Spinners also argue the court erred in finding they failed to produce sufficient evidence to prove the existence of a nuisance.  We disagree.  To establish a nuisance, a landowner traditionally must demonstrate the defendant unreasonably interfered with the ownership or use of the plaintiff’s land.  FOC Lawshe Ltd. P’ship v. Int’l Paper Co., 352 S.C. 408, 413-14, 574 S.E.2d 228, 231 (Ct. App. 2002).  Determining whether one landowner’s use of his property is a legal infringement on the property rights of another requires delicate balancing of the parties conflicting interests and rights.  Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 159, 130 S.E.2d 363, 367 (1963).  Although landowners must not unreasonably interfere with the rights of their neighbors to enjoy their property, not every annoyance or disturbance created by the landowner’s use of his property constitutes a nuisance.  O’Cain v. O’Cain, 322 S.C. 551, 560-61, 473 S.E.2d 460, 466 (Ct. App. 1996).  The inquiry is not whether the plaintiffs have been annoyed or disturbed but whether their legal rights have been injured. 

Here, we agree with the trial court that the Spinners have failed to establish their claim that the Adamses’ dogs constituted a private nuisance.  Although the Spinners testified they were bothered and disturbed by the dogs’ barking, they failed to prove the barking rose to a level where their rights were injured.  There was evidence showing the Adamses made several attempts to lessen the disturbance to the Spinners, including having the dogs surgically “debarked.” There was also evidence the Spinners were unusually sensitive and unwilling to mitigate the annoyance they suffered.  Other homeowners in the neighborhood testified they had no problems with the Adamses’ dogs. 

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.