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2010-UP-558 - Happy Rabbit v. Alpine Utilities

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

Happy Rabbit, a South Carolina Limited Partnership, and Carolyn D. Cook, Appellants,

v.

Alpine Utilities, Inc., Respondent.


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


Unpublished Opinion No.   2010-UP-558
Submitted December 1, 2010 – Filed December 23, 2010


AFFIRMED


Timothy F. Rogers, Richard L. Whitt, and Jefferson D. Griffith, III, all of Columbia, for Appellants.

John M. S. Hoefer and Benjamin P. Mustian, both of Columbia, for Respondent.

PER CURIAM:  Appellants, Happy Rabbit, a South Carolina Limited Partnership, and Carolyn Cook, brought this action against Respondent Alpine Utilities, Inc. (Alpine) to recover damages for Alpine's alleged violations of section 27-33-50 of the South Carolina Code (2007), which prohibits utilities from requiring landlords to execute an agreement to be responsible for charges billed to premises leased by a tenant.  The circuit court denied Appellants' motion for class certification and granted Alpine's motion to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP.  Appellants seek review of both orders.  We affirm.[1] 

Appellants maintain that the circuit court erred in dismissing their complaint when it failed to view the complaint's factual allegations in the light most favorable to them.  Initially, we doubt that section 27-33-50 creates a private right of action because it was not enacted for the special benefit of Appellants, but rather for the benefit of the public in general.  See Dema v. Tenet Physician Servs.-Hilton Head, Inc., 383 S.C. 115, 121, 678 S.E.2d 430, 433 (2009) (holding that where not expressly provided, a private right of action may be created by implication only if the legislation was enacted for the special benefit of a private party rather than for the benefit of the public in general).     

Even if a private right of action could be asserted under section 27-33-50, we find a disparity between the complaint's allegations and the specific actions the statute prohibits.  Section 27-33-50 prohibits a utility from requiring a landlord to sign a new contract to be responsible for charges billed to premises leased by a tenant.  Yet the complaint alleges that Appellants and Alpine were already in an existing contractual relationship on the effective date of section 27-33-50 and that Alpine would not let Appellants out of their contract.  Therefore, Appellants have not stated facts sufficient to constitute a cause of action for violation of section 27-33-50.  See S.C. Energy Users Comm. v. S.C. Pub. Serv. Comm'n, 388 S.C. 486, 491, 697 S.E.2d 587, 590 (2010) ("A statute as a whole must receive [a] practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.") (internal quotation and citation omitted); Brazell v. Windsor, 384 S.C. 512, 515, 682 S.E.2d 824, 826 (2009) (holding that in deciding whether a trial court properly granted a motion to dismiss, the appellate court must consider whether the complaint, viewed in the light most favorable to the plaintiff, states any valid claim for relief).

Concerning Appellants' remaining exceptions, we affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the circuit court erred in dismissing Appellants' complaint when it considered a potential defense outside the four corners of the complaint:  Spence v. Spence, 368 S.C. 106, 124, 628 S.E.2d 869, 878 (2006) (approving of the assertion of a defense in a motion to dismiss when there is no disputed issue of fact raised by the defense or when the facts are completely disclosed on the face of the pleadings, and realistically nothing further can be developed by pretrial discovery or a trial on the issue raised by the defense).

2. As to whether the circuit court erred in dismissing Appellants' complaint when it failed to grant leave to Appellants to file an amended complaint:  Spence, 368 S.C. at 130-31, 628 S.E.2d at 882 (holding that when a complaint is dismissed with prejudice and the plaintiff is denied the opportunity to file and serve an amended complaint yet fails to present additional factual allegations or a different theory of recovery that may give rise to a claim on which relief may be granted, the appellate court may, in its discretion, affirm the dismissal of the complaint with prejudice); Kneece v. Kneece, 296 S.C. 28, 32, 370 S.E.2d 288, 291 (Ct. App. 1988) (finding a party's failure to move pursuant to Rule 59(e), SCRCP, to have the family court amend its decree to consider a certain issue prevented consideration of the issue on appeal).

3.  As to whether the circuit court erred in dismissing Appellants' complaint when it failed to recognize that the complaint presented a novel issue:  Unisys Corp. v. S.C. Budget & Control Bd. Div. of Gen. Servs. Info. Tech. Mgmt. Office, 346 S.C. 158, 165, 551 S.E.2d 263, 267 (2001) (holding that when a dispute is not as to the underlying facts but as to the interpretation of the law, and development of the record will not aid in the resolution of the issues, it is proper to decide even novel issues on a motion to dismiss). 

4. As to whether the circuit court erred in dismissing Appellants' complaint when Alpine had not responded to Appellants' pending discovery requests:  Sullivan Co. v. New Swirl, Inc., 313 S.C. 34, 36, 437 S.E.2d 30, 31 (1993) ("Broad general statements of issues made by an appellant may be disregarded by this Court.").

5. As to whether the circuit court erred in allowing Alpine to argue a ground for dismissal that was not included in its motion to dismiss:  Rule 220(b)(2), SCACR ("The Court of Appeals need not address a point which is manifestly without merit.").

6. As to whether the circuit court erred in denying Appellants' motion for class certification when the complaint's allegations satisfied the requirements of Rule 23(a), SCRCP:  Byrd v. Irmo High Sch., 321 S.C. 426, 431, 468 S.E.2d 861, 864 (1996) (holding that an issue becomes moot when a decision, if rendered, will have no practical legal effect upon the existing controversy).

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


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