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2004-UP-459 - Keowee Invest ment Group, LLC v. Pickens County


In The Court of Appeals

Keowee Investment Group, LLC and the Cliffs at Keowee Vineyards Community Association, Inc., Petitioners, Respondents,


Pickens County, the South Carolina Department of Transportation, also all other persons unknown claiming any right, title, interest in or lien upon the real estate described herein as a portion of Cleo Chapman Highway; unknown adults as being as a class designated as John Doe; unknown infants, persons under disability or in a military service being as a class designated as Richard Roe, Earnest W. Cooler, Jr., Dot Robertson and Roger D. Gravely,

Of Whom South Carolina Department of Transportation is, Respondent,

and Dot Robertson, Roger D. Gravely and Will Gravely, (as a member of the class of persons designated as John Doe or Richard Roe) are, Appellants.

Appeal From Pickens County
 Joseph J. Watson , Circuit Court Judge

Unpublished Opinion No. 2004-UP-459
Heard May 13, 2004 – Filed August 30, 2004


John S. Nichols, of Columbia; for Appellants.

Beacham O. Brooker, Jr., of Columbia; David H. Wilkins, and Timothy E. Madden, of Greenville; for Respondents.

PER CURIAM:  Keowee Investment Group, LLC (Developer) and the Cliffs at Keowee Vineyards Community Association, Inc. (the Association), commenced this action pursuant to S.C. Code Ann. section 57-9-10 (1991), seeking to close a highway that adjoined property in the Cliffs at Keowee Vineyards subdivision.  The trial court found closing the road was in the best interest of all concerned, determined the Developer and the Association should have title to the road, and required access must remain open to all interested in visiting McKinney Chapel.  We affirm.


Developer owned 1,200 acres of land in Pickens County that it developed into the Cliffs at Keowee Vineyard subdivision.  The Association is an association of the property owners within the subdivision, and it owns and maintains all the roads and common areas within the subdivision.  The subdivision abuts a portion of a public road known as Cleo Chapman Highway (the highway).  McKinney Chapel and cemetery is at the end of the highway.  McKinney Chapel is at least one hundred years old, and the historic church is maintained by Grace United Methodist Church (Grace UMC).  Services are held at McKinney Chapel on a monthly basis and for special events.   

Concerned about security, Developer and the Association (collectively, Respondents) sought to close 14,000 feet of the highway that is located within the boundaries of the subdivision.  They brought this action to close the highway against Pickens County, the South Carolina Department of Transportation, and a class of unknown persons who may claim some interest in the highway, pursuant to section 57-9-10.  The private roads of the subdivision connect to the highway within the portion they sought to close.  Several other landowners, who owned property adjacent to the highway but were not within the subdivision, also supported the privatization of the highway. 

Dot Robertson, Roger D. Gravely and Will Gravely (collectively referred to as Appellants) intervened as members of the class of persons designated as John Doe or Richard Roe in order to keep the highway open to the public for access to the historic chapel and cemetery.  

Shortly after petitioning to close the highway, Developer and Grace UMC reached an agreement regarding public access to the chapel and cemetery if the highway were closed.  The agreement: granted Respondents the right to construct a security gate to control access to the highway; granted visitors and guests to the chapel and cemetery a nonexclusive perpetual easement over the highway; and provided that Developer would maintain the chapel and cemetery grounds.  The agreement also provided that visitors could access the chapel and cemetery at any time and on any day by informing the guard at the security gate of their destination; there would be no registration requirement. 

Just prior to the filing of the petition, Pickens County passed a resolution calling for access to the chapel.  It provided:

NOW, THEREFORE, BE IT RESOLVED THAT Pickens County is opposed to the gating for private development of all state roads and of county arterial and collector roads.  Where public roads are closed, provision must be made to allow public access to significant cultural and natural resources that have traditionally been provided to residents of Pickens County.

BE IT FURTHER RESOLVED that Pickens County requests that any access agreement for Cleo Chapman Highway be irreversible and subject to periodic review to assure that access provisions are maintained in good faith. 

Pickens County Res. No. 01-15.   

At trial, Respondents provided evidence of vandalism and other crimes that have occurred along the portion of the highway they sought to close.  They detailed the litter problems resulting from people traveling the highway.  Respondents provided evidence of another development in which they were successfully allowing access to an active church down a closed road behind the development’s security gate. 

Many of the other landowners who own property adjacent to the closed portion of the highway testified regarding the impact on their property.  Several echoed the sentiment that the gate would decrease vandalism, crime, and litter.  They further testified that their property values would be enhanced by the addition of the gate. 

Appellants appeared pro se at the hearing.  They testified that closing the highway would unnecessarily restrict access to the chapel.  They provided testimony from individuals who would feel uneasy having to go through the gate in order to access the chapel.  Appellants presented a petition signed by 4,000 individuals opposed to closing the highway because it might inhibit public access to the chapel. 

The trial court recognized the importance of maintaining public access to the chapel and cemetery.  The court found the agreement allowed access to the chapel, did not unnecessarily restrict the movements of those seeking to visit, and was not contrary to the Pickens County resolution.  The agreement was incorporated into the final order such that if Respondents violated the terms, it would be a violation of the order. 

In determining whether to close the highway, the trial court considered the petition opposing the closing signed by 4,000 local residents.  However, the court found the residents signing the petition were not aware that they would be given permanent access to the chapel.  The court also found the closing of the highway pursuant to the terms of the agreement would be in the best interest of all concerned.  The court determined the security of the area would be enhanced and the property owners in the area would not be adversely affected.  Finally, the court found that title to the highway would be vested in Respondents. 

Appellants filed a pro se post-trial petition for reconsideration.  The trial court held the petition was “fatally flawed” because it was not served upon the DOT and affirmed its prior findings on the merits.  This appeal followed.


The parties dispute whether a legal or equitable standard of review should be applied.  Our supreme court has analyzed a trial court’s decision to close a road pursuant to statute under an abuse of discretion standard.  First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 229, 417 S.E.2d 592, 594 (1992) (finding that in light of the evidence in the record supporting the road closing, the trial court properly considered the public’s interest as required by statute and no abuse of discretion occurred).  An abuse of discretion occurs when a trial court’s decision is unsupported by the evidence or controlled by an error of law.  Ledford v. Pa. Life Ins. Co., 267 S.C. 671, 675, 230 S.E.2d 900, 902 (1976).  Accordingly, we will reverse the court’s decision to close the highway only if the decision is unsupported by the evidence. 


I.  Subject Matter Jurisdiction

Appellants argue the trial court erred in: (1) ruling that their post-trial motion for reconsideration was fatally flawed because it was not served upon the DOT; and (2) making this ruling sua sponte.  Respondents assert that because Appellants failed to serve the DOT, their post-trial motion did not toll the time period for filing their notice of appeal, and, thus, this court does not have subject matter jurisdiction to entertain the appeal. 

In order to perfect an appeal to this court, a party must serve the notice of appeal on all parties within thirty days of receipt of the written notice of final order or judgment.  Rule 203(b)(1), SCACR.  When a party files a timely post-trial motion for judgment notwithstanding the verdict (j.n.o.v.) pursuant to Rule 50(b), SCRCP, to alter or amend the judgment pursuant to Rules 52 and 59, SCRCP, or for a new trial pursuant to Rule 59, SCRCP, the time period for filing the notice of appeal is tolled until receipt of written notice of the order granting or denying the post-trial motion.  Id.  The timely service of the notice of appeal is a jurisdictional requirement, and the appellate courts have no authority to “extend or expand the time in which the notice of appeal must be served.”  Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985) (interpreting former Supreme Court Rule 1, §§ 1 A and 1 C).  The failure to timely serve the notice of appeal “divests this court of subject matter jurisdiction and results in dismissal of the appeal.”  Canal Ins. Co. v. Caldwell, 338 S.C. 1, 5, 524 S.E.2d 416, 418 (Ct. App. 1999).

In the present case, Appellants intervened as defendants in Respondents’ suit against Pickens County, the DOT, and other unknown persons claiming some right or interest in the particular section of the highway they sought to close.  Although named as a defendant in the action, the DOT filed an answer expressing that it had no objection to the closing of that section of the highway.  After answering the complaint, the DOT notified Respondents’ counsel that it would not appear at the hearing, and DOT did not appear further in the action.  Appellants timely filed their pro se motion for reconsideration pursuant to Rules 52(b) and 59(a) and (e), SCRCP.   However, Appellants failed to serve their co-defendant, the DOT, with the motion.

In ruling on the post-trial motion, the trial court noted that Rule 5, SCRCP, requires that every written motion must be served on all parties not in default.  Rule 5, SCRCP (“Every . . . written motion . . . shall be served upon each of the parties; but no service need be made on parties in default for failure to appear. . . .”).  The court found, sua sponte, that Appellants’ failure to serve the DOT with the post-trial motion pursuant to Rule 5 was a “fatal error” that rendered Appellants’ post-trial motion untimely and of “no effect.”  The court alternatively denied Appellants’ post-trial motion on the merits.  Appellants filed their notice of appeal within thirty days after receiving written notice of the order denying their motion for reconsideration.  

Regardless of whether the trial court erred in ruling on this issue sua sponte, we find the court erred in its interpretation of the effect of Rule 5, SCRCP.  Although Rule 5 does require service of motions on all parties to an action, nothing in the rule indicates that failure to serve all parties is a jurisdictional requirement, rendering the motion of “no effect,” or as if it had never been filed.  The trial court still had jurisdiction to hear post-trial motions timely filed in the case.  See Farmer v. Monsanto Corp., 353 S.C. 553, 557, 579 S.E.2d 325, 327 (2003) (“Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.”) (citing Dove v. Gold Kist, Inc., 314 S.C. 235, 237-238, 442 S.E.2d 598, 600 (1994)); see also State v. Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) (holding that where a defendant failed to file his notice of appeal within ten days of his magistrate court conviction, the failure to comply with the procedural requirements divested the circuit court of appellate jurisdiction, not the subject matter jurisdiction to hear and determine that class of appeal). 

Clearly, failure to serve a particular party with a motion or order adverse to that party’s rights would render it ineffective against that party.  See, e.g., Connor v. City of Forest Acres, 348 S.C. 454, 461-62, 560 S.E.2d 606, 609-10 (2002) (noting that service of the notice of intent to appeal is a jurisdictional requirement, and the failure to serve particular parties meant they were not part of the appeal); Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561 S.E.2d 659, 661 (Ct. App. 2002) (noting that judgments should not be issued without notice to a party whose rights are affected, the court stated that “a person against whom a judgment or order is taken without notice may rightly ignore it and may assume that no court will enforce it” against him).  However, the rules do not indicate that failure to serve one party renders the motion untimely or completely ineffective against the other parties served. 

We see no prejudice where, as in the present case, the party not served with a post-trial motion was disinterested in the action.  The DOT did not contest Respondents’ petition and did not appear at the hearing to voice opposition to Appellants’ position.  Because the DOT was not interested in asserting any rights in the matter, its substantial rights were not prejudiced by the lack of its presence at the post-trial hearing. [1]   Brown v. Mickens, 256 S.C. 346, 348, 182 S.E.2d 417, 417-18 (1971) (“Generally, a party interested in resisting the relief sought by a motion has a right to notice sufficient to give him an opportunity to be heard.”) (emphasis added); see Nishitani v. Baker, 921 P.2d 1182, 1192-93 (Haw. Ct. App. 1996) (noting that although plaintiffs violated Hawaii Rule of Civil Procedure Rule 5(a) by failing to serve the defendants with notice of substitution, the court concluded that “such failure did not affect Defendants’ substantial rights and was, thus, harmless error”). 

Although Appellants violated Rule 5 by failing to serve the DOT with notice of the post-trial motion, there is no evidence that the DOT’s substantial rights were prejudiced.  Thus, the motion was timely filed and served upon the interested parties in the action.  Accordingly, the trial court erred in finding the failure to serve the DOT rendered the post-trial motion ineffective. 

We now turn to the question of whether Appellants’ appeal was timely.  Because we have already determined that Appellants’ post-trial motion was timely, the motion tolled the time period for filing their notice of appeal until after receipt of the order denying the motion.  Rule 203(b)(1), SCACR.  Appellants served their notice of appeal within thirty days of receipt of the order denying the motion.  Accordingly, their notice of appeal was timely and this court has jurisdiction to hear the appeal.

II.      Closing of the Highway

Appellants argue the trial court misconstrued the facts and erred in closing the highway.  We find the trial court did not abuse its discretion because there is sufficient evidence in the record to support the court’s decision.

Section 57-9-10 provides: “Any interested person, the State or any of its political subdivisions or agencies may petition a court of competent jurisdiction to abandon or close any street, road or highway whether opened or not.”  S.C. Code Ann. § 57-9-10 (1991).  The determination is controlled by a best interest standard: “If the court shall determine that it is to be the best interest of all concerned that such street, road or highway be abandoned or closed, the court shall then determine in whom the title thereto shall be vested and issue an appropriate order.”  S.C. Code Ann. § 57-9-20 (1991).

The South Carolina Supreme Court addressed the appropriate interest to be considered in closing a road:

A public street may not be vacated for the sole purpose of benefiting an abutting owner.  However, the mere fact that the vacation was at the instigation of an individual who owns abutting property does not invalidate the vacation or constitute abuse of discretion, nor does the fact that some private interest may be served incidentally.  On the other hand, it must appear clearly that no consideration other than that of public interest could have prompted the action.  

First Baptist Church of Mauldin, 308 S.C. at 229, 417 S.E.2d at 594 (citations omitted).

The reasons proposed by Respondents for closing the portion of the highway included: safety of residents of the development and other landowners; a need to decrease vandalism in the area; and a need to reduce other crimes occurring along the highway.  Respondents also noted that McKinney Chapel would be protected from vandalism by closing the highway. 

Several landowners and other individuals testified regarding the vandalism of property along the highway.  Deputy Dewey Smith of the Pickens County Sheriff’s Department testified that the Sheriff’s Department would not be able to provide adequate security for the residents of the development because of its location and distance from the Sheriff’s Office. While many landowners abutting the highway testified that their property values would increase after the closing, they also explained one of the main reasons for closing the highway would be to provide better security to landowners and the chapel.  

Jim Anthony, president of the Developer, testified that reports of vandalism and other serious crimes had decreased as a result of hiring security personnel, but he and landowners in the development sought to close the highway to increase security.  Anthony admitted that closing the highway and increasing security would increase the value of the property within the development and along the closed portion of the highway.  Anthony also detailed his experience in operating another gated road, which provided access to an active church under an agreement with the church for ten years without a problem.

Both Anthony and Joe Durham, Chairman of the Board of Trustees of Grace UMC, testified regarding the agreement to allow access to McKinney Chapel and cemetery.  Both believed the gate would increase security for the chapel and help preserve it as a historical or tourist location.

Several individuals with ties to the chapel or cemetery expressed concerns that a gate would restrict access or intimidate people wishing to visit McKinney Chapel or cemetery.  Thomas Watson testified that he was followed to the chapel by a man in an unmarked car who observed him for an extended period of time.  He feared that if the gate is erected and visitors to the chapel are monitored, it would be very intimidating.  Finally, Dot Robertson testified regarding the history of McKinney Chapel, expressed concerns regarding the public’s access to the historical site, and presented a statement from the Sierra Club expressing their concern over the possible loss of public access to the church. 

Patrick Bryant presented the court with a petition signed by 4,000 people in both Pickens and Oconee counties opposing the closing of the highway.  It is not clear whether the individuals signing the petition knew of the agreement between Developer and Grace UMC to provide access to McKinney Chapel.  However, Bryant testified he still believed persons wanting to visit the chapel through the gate would be prevented from doing so, notwithstanding the agreement. 

It is clear that the trial court was concerned about restricting access to the chapel.  However, we find, based upon the evidence presented at trial, the court appropriately considered the benefits and detriments to everyone involved.  The agreement between Developer and Grace UMC provides substantial access to anyone wishing to visit the chapel or cemetery.  Although the court expressed some concern regarding how the agreement would be enforced, the agreement was ultimately incorporated in the court order so that any violation of the agreement could be considered contempt of the court order and appropriate sanctions would apply.  

Nevertheless, Appellants argue that the trial court erred in finding the agreement did not violate the Pickens County resolution because bringing a contempt action would be burdensome.  The evidence supports the trial court’s finding that the agreement allows unfettered access, complies with the resolution, and provides an appropriate remedy in the nature of a contempt action. 

The evidence also supports a finding that security in the development and at the chapel would be increased by closing the highway and installing the security gate.  There was uncontested testimony that the Developer had successfully operated a security gate in another development that still allowed unfettered access for members of an existing church inside the gate.  The trial court properly considered the interests of all persons concerned, and more importantly the public at large, in rendering its decision. 

Finally, Appellants argue the trial court erred in discounting the petition signed by 4,000 residents opposing the highway closing.  The trial court specifically held that it believed the persons signing the petition were unaware they would be given permanent access to the chapel.  It does appear that the petition was circulated prior to execution of the agreement providing access between the Developer and Grace UMC.  Thus, the trial court did not err in this finding.     

The trial court rendered its decision to close the Highway after carefully considering the interests of the public.  Accordingly, we find no abuse of discretion in the court’s decision to close the portion of the highway at issue.

III.    Title to the Closed Highway

Appellants maintain the trial court erred in vesting title in Respondents once it determined the highway should be closed.  We disagree.

First, Appellants lack standing to assert the trial court improperly transferred title to Respondents.  Appellants contend the rightful owner is the DOT.  However, Appellants have not asserted any right to the property or claim title should have been vested in them.  “A party cannot appeal from a decision which does not affect his or her interest, however erroneous and prejudicial it may be to some other person’s rights and interests.”  Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 301, 551 S.E.2d 588, 589-90 (Ct. App. 2001).  DOT, and not Appellants, would be the appropriate party to appeal this determination.

Even if Appellants had standing to raise the issue, the trial court properly transferred title to Respondents.  The road closing statute provides that once a court determines that closing a road is in the public interest, it may determine in whom title should be vested.  S.C. Code Ann. § 57-9-20 (1991).  The power to declare ownership of the closed road does not grant the court the power to create or destroy a fee simple interest in the property.  The court may only declare who owns legal title.  Hoogenboom v. City of Beaufort, 315 S.C. 306, 318-19, 433 S.E.2d 875, 884 (Ct. App. 1992).  Further, “in the absence of some statutory disposition, abandonment or vacation of a public street vests absolute possession and title in the abutting property owners. . . .”  City of Greenville v. Bozeman, 254 S.C. 306, 317-18, 175 S.E.2d 211, 216 (1970).  

In its answer, Pickens County stated that it had never owned or maintained any portion of the highway.  DOT noted in its answer that the land which later became the highway came within the state highway system in approximately 1940.  Appellants presented DOT documents at trial dating back to 1939.  The documents all indicated that DOT had a right-of-way over the highway, not fee simple title.  

In its order, the trial court referred to DOT as the “owner” of the highway.  Nevertheless, after determining that closing the highway would benefit the public, the court vested title in the highway to Respondents.  In their post-trial motion, Appellants alleged the trial court erred in vesting ownership in Respondents after finding the DOT was title owner of the highway.  In the order denying the post-trial motion, the trial court clarified its prior order stating that the evidence supported a finding that the DOT owned only a right-of-way over the property, and thus, the title to the property was correctly vested in the abutting landowners.

The evidence supports the trial court’s determination.  Although the initial order closing the highway mistakenly refers to DOT as the “owner,” all the evidence supports the trial court’s subsequent order that the DOT owned only a right-of-way.  Therefore, title to the property upon closing the highway was correctly vested in Respondents as abutting landowners.  Accordingly, we find the trial court did not abuse its discretion in transferring title in the closed portion of the highway to Respondents.


We find the trial court did not abuse its discretion in closing a portion of the highway.  The evidence in the record supports the finding that, while it did benefit adjoining landowners, it would also be in the best interest of the public.  Additionally, we hold the court properly transferred title in the closed portion of the highway to Respondents.  Accordingly, the decision of the trial court is


HEARN, C.J., STILWELL, J., and CURETON, A.J., concur.

[1] Interestingly, the DOT has not filed a brief in this appeal to complain about its lack of notice of the post-trial hearing.