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2009-UP-396 - McPeake Hotels, Inc. v. Jasper's Porch, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

McPeake Hotels, Inc., Appellant,

v.

Jasper's Porch, Inc. and the Town of Ridgeland, South Carolina,

Of whom the Town of Ridgeland, South Carolina is the, Respondent.


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


Unpublished Opinion No. 2009-UP-396
Heard May 12, 2009 – Filed July 23, 2009


AFFIRMED


Gregory M. Alford, of Hilton Head, for Appellant.

Andrew F. Lindemann, of Columbia, for Respondent.

PER CURIAM:  In this inverse condemnation action, McPeake Hotels, Inc. appeals the grant of summary judgment in favor of the Town of Ridgeland.[1]  McPeake further appeals the denial of injunctive relief and argues summary judgment was premature because discovery was not yet completed.[2]  We affirm.

1.  As to the inverse condemnation claim, McPeake failed to present any evidence of diminution in value of the property as a result of the alleged taking and we affirm the grant of summary judgment pursuant to Rules 220(b)-(c),[3] SCACR, and the following authorities:  Kiriakides v. School Dist. of Greenville County, 382 S.C. 8, 14, 675 S.E.2d 439, 442 (2009) ("A landowner has the burden of proving damages for the taking of the landowner's property, whether through condemnation proceedings or by inverse condemnation."); WRB Ltd. P'ship v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) (in order to prevail in an inverse condemnation action, the plaintiff must prove an affirmative, aggressive, and positive act by the government, causing the alleged damage to the plaintiff's property); Raven v. Greenville County, 315 S.C. 447, 465, 434 S.E.2d 296, 307 (Ct. App. 1993) (stating the measure of damages for injury to real property, whether by nuisance, trespass, negligence, or inverse condemnation is the diminution in the market value of the property). 

2.  As to the remaining claim for injunctive relief, McPeake failed to challenge the grounds upon which the trial court based its decision to deny the request for an injunction.  See Charleston Lumber Co., Inc. v. Miller Hous. Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (providing "an unchallenged ruling, right or wrong, is the law of this case.").  Moreover, on appeal, McPeake merely argues a governmental entity is not precluded from being enjoined based on sovereign immunity.  See Anderson v. Short, 323 S.C. 522, 525, 476 S.E.2d 475, 477 (1996) (holding when a trial court's decision is based on multiple grounds, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become the law of the case).  Accordingly, we affirm the trial court's denial of injunctive relief as it is the law of the case.

AFFIRMED.[4]

HUFF, PIEPER, and GEATHERS, JJ., concur.


[1]  This appeal does not involve any claim against Jasper's Porch, Inc.

[2] Although McPeake argued the motion for summary judgment was premature in its memorandum in opposition to the motion, the trial court never addressed this issue and McPeake did not raise the issue in its Rule 59(e) motion.  Accordingly, this issue is not preserved for appellate review.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating issue cannot be raised for the first time on appeal but must have been raised to and ruled upon by the trial judge to be preserved for appellate review).  We further note that a motion for continuance was never filed by McPeake.  Nonetheless, there was ample time to conduct discovery as this action was pending for more than one year and McPeake even acknowledged in its interrogatories four months prior to the hearing that it would likely retain an expert to testify concerning damages.

[3] See Upchurch v. New York Times, 314 S.C. 531, 538, 431 S.E.2d 558, 562 (1993) (“We may affirm the trial judge for any reason appearing in the record.”) (citing Rule 220(c), SCACR).

[4] The Town of Ridgeland asked this court to review its denial of the motion to strike the deposition pages filed after the trial court orally granted summary judgment.  Because these pages were filed after the trial court granted summary judgment, we agree these pages were untimely.  See Higgins v. Med. Univ. of South Carolina, 326 S.C. 592, 599, 486 S.E.2d 269, 272 (Ct. App. 1997) ("When ruling on a motion for summary judgment, the trial court must consider all of the documents and evidence within the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits.") (emphasis in original).  Nevertheless, even if the omitted deposition pages were considered, they have no impact on the disposition of this appeal.  See McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987) ("whatever doesn't make any difference, doesn't matter.").