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2005-UP-138 - N Charleston Sewer District v. Berkeley County
PER CURIAM: North Charleston Sewer District appeals the circuit court’s grant of summary judgment in favor of Berkley County


In The Court of Appeals

North Charleston Sewer District,        Appellant,


Berkeley County, South Carolina acting by and through the Berkeley County Water and Sanitation Authority,        Respondent.

Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2005-UP-138
Heard December 8, 2005 – Filed February 24, 2005


Steve A. Matthews, Hamilton Osborne, Jr., and Sarah P. Spruill, all of Columbia, for Appellant.

Arnold S. Goodstein, of Summerville, and Lucas C. Paddgett, Jr., and Michael C. Scarafile, both of Charleston, for Respondent. 

PER CURIAM:  North Charleston Sewer District appeals the circuit court’s grant of summary judgment in favor of Berkeley County, arguing the court erred by refusing to strike certain provisions of the parties’ sewer service agreement and consent order as ultra vires and void as against public policy.  Because this litigation does not present a justiciable controversy, we vacate the trial court’s order. 


In 1985, the North Charleston Sewer District (the District) entered into a service agreement with the Berkeley County Water and Sanitation Authority (the County) to operate the wastewater management system for certain subdivisions in Berkeley County.  The contract required the District and the County to obtain written permission from one another before expanding service beyond their primary jurisdictions.  In 1994, Berkeley County brought a declaratory judgment action to interpret the agreement, alleging the District breached it by providing service to a naval base in Berkeley County without requesting or obtaining written permission from the County.  By a consent order, the parties agreed to allow the District to continue serving the base, required the District to inform the County in writing when it received a request for sewer service in Berkeley County and in the future obtain written permission before providing additional service outside its primary jurisdiction. 

In 1998, the District brought a declaratory judgment action requesting a modification of the consent order and the original service agreement to eliminate any requirement for written permission prior to their expanding sewer service within Berkeley County, arguing the supreme court’s decision in City of Beaufort v. Beaufort-Jasper County Water & Sewer Auth., 325 S.C. 174, 480 S.E.2d 728 (1997), declared such a provision ultra vires and void as against public policy.  The parties stipulated the pertinent facts and made cross motions for summary judgment.  The circuit court granted summary judgment in favor of the County, determining the permission requirement was valid and enforceable even though it bound the District’s future governing boards, because it did not substantially compromise the District’s primary function of providing wastewater management to North Charleston.  The court also found the provision did not offend the supreme court’s decision in Beaufort because it did not delegate away those powers and responsibilities for which District was created—namely, to provide sewer service to the northern part of Charleston County. 


The District contends the circuit court erred by granting summary judgment in favor of the County, arguing provisions in the parties’ service agreement and the consent order impermissibly bind its future governing boards and substantially compromise the District’s central and primary function, contrary to our supreme court’s decision in City of Beaufort v. Beaufort-Jasper County Water & Sewer Auth., 325 S.C. 174, 480 S.E.2d 728 (1997).  We decline to address the merits of the District’s argument, find the circuit court erred by doing so, and therefore vacate the circuit court’s order.

“A threshold inquiry for any court is a determination of justiciability, i.e., whether the litigation presents an active case or controversy.  A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.”  People’s Fed. Sav. & Loan Assoc. of South Carolina v. Res. Planning Corp., 358 S.C. 460, 477, 596 S.E.2d 51, 60 (2004) (internal citations omitted).  To bring a valid cause of action under the Declaratory Judgment Act, a party must demonstrate a justiciable controversy exists.  Southern Bank & Trust Co. v. Harrison Sales Co., 285 S.C. 50, 51, 328 S.E.2d 66, 67 (1985). 

The District has not alleged its intention to expand sewer service further into Berkeley County without obtaining the county’s permission.  Nor has the County asserted any claim of a breach of the contested provisions of the agreement or consent order.  Consequently, we are compelled to inquire if any other adverse legal interests exist that create a valid case or controversy.  See Wallace v. City of York, 276 S.C. 693, 694, 281 S.E.2d 487, 488 (1981) (holding the function of a court is “to decide actual controversies injuriously affecting the rights of some party to the litigation.”); Power v. McNair, 255 S.C. 150, 153, 177 S.E.2d 551, 552 (1970) (holding parties cannot by consent confer jurisdiction on the court to render a declaratory judgment). 

We simply cannot discern any conflicting contentions between the parties that present a real, presently existing controversy for decision.  Accordingly, any opinion rendered would be advisory only, and would, of necessity, require us to suppose facts and circumstances not yet in existence.  Such a course is impermissible and we must therefore decline to address the issues presented, because they fail to constitute a case or controversy for which meaningful relief can be granted.  In the Interest of Kaundra C., 318 S.C. 484, 486, 458 S.E.2d 443, 444 (Ct. App. 1995) (“This court will not issue advisory opinions on questions for which no meaningful relief can be granted.”).