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2008-UP-324 - Parker v. Brown

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Celestine Parker, Appellant,

v.

Robert Brown, Respondent.


Appeal From Richland County
 James R. Barber, Circuit Court Judge


Unpublished Opinion No. 2008-UP-324
Submitted May 1, 2008 – Filed June 27, 2008   


AFFIRMED


Kevin A. Hall and A. Mattison Bogan, both of Columbia, for Appellant.

Robert Brown, of Fort Mott, pro se.

PER CURIAM:  In this landlord-tenant action, the magistrate found Celestine Parker wrongfully withheld a portion of Robert Brown’s security deposit and awarded Brown treble damages.  The circuit court affirmed, and Parker appeals.  We affirm.

FACTS

On December 3, 2004, Parker and Brown entered into a six-month lease wherein Brown agreed to rent Parker’s house.  Brown agreed to pay Parker $575 a month commencing on January 1, 2005.  The lease also called for Brown to pay a security deposit of $550.  According to Parker, in an addendum to the rental contract, the parties agreed Brown would move in on December 18, 2004.[1]  However, Brown moved in on December 15, 2004.

Under the terms of the rental contact, the lease expired on June 30, 2005, but testimony indicates Brown left personal items in the rental property until July 6, 2005.  Following a final inspection of the property, Parker determined Brown was not entitled to a full refund of his security deposit.  Instead, Parker refunded Brown $269.64 of the $550 deposit, making several deductions. 

Brown filed a complaint in magistrate’s court alleging Parker made unauthorized deductions from his security deposit and failed to return the deposit in a timely manner.  The magistrate awarded Brown treble damages of $1100, finding Parker did not itemize the deductions and send the cost of repairs or refund the security deposit in a timely manner.  The circuit court affirmed the award based upon its finding that substantial evidence supported the magistrate’s order.  This appeal followed. 

STANDARD OF REVIEW

On review from the circuit court, the appellate court is without authority to reverse findings of fact if there is any supporting evidence.  Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 234, 312 S.E.2d 20, 21 (Ct. App. 1984).  This court presumes an affirmance by a circuit court of a magistrate’s judgment was made upon the merits when the testimony is sufficient to sustain the magistrate’s judgment and there are no facts that show the affirmance was influenced by an error of law.  Parks v. Characters Night Club, 345 S.C. 484, 490, 548 S.E.2d 605, 608 (Ct. App. 2001).  Unless we find an error of law, the appellate court will affirm the circuit court’s holding if there are any facts supporting the decision.  Hadfield v. Gilchrist, 343 S.C. 88, 94, 538 S.E.2d 268, 271 (Ct. App. 2000).

LAW/ANALYSIS

I.  Rule 208(a)(4), SCACR

Initially, Parker contends this court should reverse the circuit court’s order, pursuant to Rule 208(a)(4), SCACR, because Brown failed to file an initial brief.  We disagree.

Upon the failure of respondent to timely file a brief, the appellate court “may take such action as it deems proper.”  Rule 208(a)(4), SCACR.  South Carolina courts have recognized the failure of a respondent to file a brief could justify a reversal.  Turner v. Santee Cement Carriers, Inc.,  277 S.C. 91, 96, 282 S.E.2d 858, 860 (1981).  Furthermore, when a respondent does not file a brief, this court has found it proper to address the issues as presented by the appellant.  Durham v. United Cos. Fin. Corp.,  326 S.C. 403, 404, 483 S.E.2d 786 (Ct. App. 1997) rev’d on other grounds, 331 S.C. 600, 503 S.E.2d 465 (1998).         

Although Brown’s failure to file a brief with this court could justify reversal, we do not deem it proper to reverse under these facts.  The record is sufficient to provide this court with an understanding of the issues on appeal. 

II.  Civil Relief Act

Parker next maintains the circuit court erred affirming the decision of the magistrate failing to stay the case because co-defendant Stanley Parker was on active military duty.  This issue is not preserved for our review.

An issue cannot be raised for the first time on appeal.  In order for an issue to be preserved for appellate review it must be raised to and ruled upon by the circuit court.  Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000).  “Error preservation requirements are intended ‘to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.’”  Id. (quoting I’On v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)).  Where the circuit court has not ruled on an issue, “a reviewing court simply would not be able to evaluate whether the trial court committed error.”  Id.

In the present case, the magistrate received a fax from Stanley Parker stating he was on active duty outside the state and could not be in attendance.  The record does not indicate a request to stay the proceedings was made pursuant to the Civil Relief Act.  Furthermore, even if we liberally construe Stanley Parker’s fax to the Magistrate as an application for a stay of proceedings, Parker did not appeal the Magistrate’s denial of the request to stay to the circuit court.  Biales v. Young, 315 S.C. 166, 168, 432 S.E.2d 482, 484 (1993) (“Failure to [challenge a ruling] is an abandonment of the issue and precludes consideration on appeal.”).  Accordingly, this issue is not preserved for our review.  Moreover, we fail to discern any prejudice because Stanley Parker’s name was not on the parties’ contract.  Accordingly, this issue is without merit.

III.  Security Deposit

Parker maintains the magistrate erred in finding she improperly withheld deductions from Brown’s security deposit and failed to return the balance in a timely manner.  We disagree.

The South Carolina Residential Landlord and Tenant Act provides:

(a) Upon termination of the tenancy, property or money held by the landlord as security must be returned less amounts withheld by the landlord for accrued rent and damages which the landlord has suffered . . . .  Any deduction from the security/rental deposit must be itemized by the landlord in a written notice to the tenant . . . within thirty days after termination of the tenancy and delivery of possession and demand by the tenant, whichever is later. The tenant shall provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent.  If the tenant fails to provide the landlord with the forwarding or new address, the tenant is not entitled to damages under this subsection provided the landlord (1) had no notice of the tenant’s whereabouts and (2) mailed the written notice and amount due, if any, to the tenant’s last known address.

(b) If the landlord fails to return to the tenant any prepaid rent or security/rental deposit with the notice required to be sent by the landlord pursuant to subsection (a), the tenant may recover the property and money in an amount equal to three times the amount wrongfully withheld and reasonable attorney’s fees.

S.C. Code Ann. § 27-40-410(a)&(b) (Supp. 2007). 

Here, Parker determined Brown was entitled to the return of only $269.64 of his $550 security deposit.  Parker made the following deductions: (1) $24.72 for a June 2005 telephone bill; (2) $65.00 for landscaping; (3) $80.00 for carpet cleaning; (4) $54.99 for new locks; and (5) $55.65 in rental fees. 

The magistrate heard the parties’ testimony and determined Parker’s deductions were unauthorized for the following reasons:  Brown paid the June 2005 phone bill; Parker failed to produce a receipt for landscaping the rental property; the receipt for carpet cleaning was post dated August 8, 2008, and indicated a charge of only $60; it was Parker’s responsibility to change the locks after Brown moved out; and Parker was not entitled to rent for three days in December 2004.  Each of these findings is supported by evidence in the record; therefore, the circuit court properly upheld the findings of the magistrate.

The magistrate also concluded Parker failed to return the security deposit in a timely manner.  Although Brown vacated the property on June 30, 2005, it appears some of his possessions remained there until July 6, 2005.  At the hearing, Parker stated she returned part of Brown’s security deposit on July 6, 2005.[2]  However, the evidence presented indicated Parker did not mail the check to Brown until August 6, 2005.  In addition, Parker contended she could not refund the security deposit because she did not have the proper forwarding address, although she admitted to the circuit court on appeal she possessed the address Brown claimed was his permanent address.  As a result, the magistrate and the circuit court did not err in finding Parker returned a portion of Brown’s security deposit more than thirty days following the termination of the tenancy and in awarding treble damages.  

Accordingly, the circuit court’s order affirming the magistrate’s findings is

AFFIRMED. [3]

HEARN, C.J., and SHORT, J., and KONDUROS, J., concur.


[1] The addendum was not signed by either party. 

[2] On appeal to the circuit court, Parker stated Brown’s mother removed personal items from the rental property on July 7, 2005, which would have made Parker’s mailing of the security deposit timely.  However, the record does not show this argument was raised to the magistrate.

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