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2011-UP-111 - Dempsey v. Hoover

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

Kem Dempsey and L.A. Blue, Appellants,

v.

Hugh Allen Hoover and Richland County, Respondents.


Appeal From Richland County
 L. Casey Manning, Circuit Court Judge


Unpublished Opinion No.  2011-UP-111
Heard December 8, 2010 – Filed March 22, 2011


AFFIRMED


Kirby D. Shealy, III, and Jay Bender, both of Columbia, for Appellants. 

Andrew F. Lindemann and William H. Davidson, II, both of Columbia, and John W. Carrigg, Jr., of Irmo, for Respondents.

PER CURIAM:  After Hugh Allen Hoover began developing his property on Lake Murray, Kem Dempsey and L.A. Blue (collectively, Appellants) sought declaratory judgment and injunctive relief against both Hoover and Richland County (the County).  The circuit court granted summary judgment in favor of Hoover and the County.  Appellants appeal, arguing the circuit court erred (1) in finding they presented no justiciable controversy and (2) in ruling Appellants failed to demonstrate irreparable harm.  We affirm.     

FACTS

Hoover was a building inspector employed by the County.  He and Appellants owned waterfront property located on Lake Murray in the County.  Dempsey's property adjoined Hoover's, and Blue's property was nearby on the other side of the cove.  In April 2003, Hoover cleared trees from his property.  Five months later, the County approved Hoover's request to subdivide his property into three separate lots.  Appellants complained to the County that Hoover's development activities violated county codes, ordinances, and protocols.  The County halted Hoover's development activities twice but later allowed them to proceed. 

In October 2006, Appellants filed an action seeking a declaratory judgment and injunctive relief against Hoover and the County.  Appellants alleged Hoover developed his property without first securing the required county approval of storm water management and erosion control plans, graded the property without a permit, and installed an unpermitted office trailer instead of the modular home for which he had obtained a permit.  In addition, Appellants asserted Hoover improperly installed sewer lines on his property that had to be dug up and re-installed, leaving open trenches, after the South Carolina Department of Transportation determined the lines encroached on its right of way.  Appellants claimed Hoover's actions caused "extreme erosion" of the cleared land.  Appellants also alleged Hoover committed fraud by listing the property as his primary residence for tax purposes and by paying for only one sewer tap line but installing four.  With regard to the County, Appellants alleged that despite their reports of Hoover's misdeeds, the County refused to investigate or enforce its ordinances. 

Appellants sought three declaratory judgments against Hoover.  First, they sought a declaration that Hoover illegally cleared and graded his property, erected an office trailer without a permit, improperly placed four sewer taps, failed to comply with permitting and setback requirements, and abused his position as an employee of the County.  They sought a second declaration that Hoover fraudulently used his property as his primary residence for tax purposes.  They sought a third declaration that he committed other failures relating to subdividing his property.  Appellants also sought a declaration that the County failed to inspect or investigate Hoover's development, failed to enforce codes and ordinances, and afforded Hoover preferential treatment in the development of his property. 

In addition, Appellants applied for three types of injunctive relief against both Hoover and the County.  Appellants sought an order enjoining Hoover from conducting additional work on his property and from further subdividing it.  They also sought an injunction preventing the County from issuing any certificates of occupancy for Hoover's property.   

The circuit court denied Appellants' motion for a temporary restraining order (TRO) and preliminary injunction, noting in its order that their counsel conceded they would not suffer irreparable harm in the absence of an injunction.[1]  On May 7, 2007, the County issued a certificate of occupancy permitting Hoover to move into his new structure. 

At his deposition, Dempsey testified Hoover's development and failure to maintain his property were eroding the soil and "damaging the water quality of that cove, which [a]ffects the value also of our property, and also the use of the lake and our pleasure of using the lake."  When asked whether the sediment from Hoover's eroding land was deposited into the lake, Dempsey stated he was not sure.  However, he had a gut feeling that the erosion was causing the market value of his own property to drop.  Although Dempsey had consulted with an unidentified man about possible devaluation of his property, the man declined to express an opinion about the impact of Hoover's activity on the value of Dempsey's property.  Dempsey's concern about possible devaluation of his property came from comments made by neighbors and visitors to his property. 

Blue recalled at his deposition that his information on Hoover's clearing and construction activities came from Dempsey, who "had written notes."  Blue believed eroding sediment from Hoover's cleared tract would be carried into the cove, which Blue and his neighbors had dredged, and would limit their access to navigable water.   

Appellants deposed Hoover's immediate supervisor, Marvin Phipps.  According to Phipps, each building is designated as being either for business occupancy or residential occupancy.  Regardless of whether a building is modular or site-built, when it is moved, it loses its occupancy status.  When the building reaches its destination, it receives a new occupancy status based upon its purpose at the new location and must conform to the law applicable to its new status.  Phipps identified Hoover's structure as modular rather than mobile by the data plate attached to the building.  According to Phipps, modular homes carry a data plate with a certificate permitting them to move "anywhere in the State of South Carolina."  In addition to naming different inspectors who handled Hoover's construction project on the County's behalf, he testified the County performed all its obligations in this matter "to code and to the letter." 

The record includes a copy of a vehicular title issued by the State of South Carolina to Easy Lifestyle, Inc., for a 1998-model vehicle.  The title lists the vehicle's body style as "MBH" and its model as "28X60."  This description appears to fit a double-wide mobile home measuring twenty-eight feet by sixty feet.  Phipps testified the vehicle identification number from the title matched the number identifying Hoover's modular structure on a plat of Hoover's property.  Hoover testified at his deposition that he purchased a modular office building and placed it on the lot, intending to convert it to a home.  Hoover denied knowing at the time of purchase that the structure had previously been titled as a mobile home. 

On October 30, 2008, the circuit court heard arguments on the County's motion for summary judgment.[2]  The County argued summary judgment was appropriate because Appellants sought to have the circuit court impermissibly substitute itself for the proper administrative authority in a county regulatory matter and, alternatively, because Appellants failed to identify a justiciable controversy.  In support of its second argument, the County pointed to Appellants' concessions at the TRO hearing that (1) the relief they sought in their motion for a TRO and preliminary injunction was the same as the relief they sought in their Complaint and (2) they would not suffer irreparable harm if the TRO were not issued.  In addition, the County identified the 2007 issuance of the certificate of occupancy as an intervening event that rendered Appellants' declaratory judgment case moot.   

In response, Appellants argued Hoover's modular office building was titled as a mobile home, a structure not allowed by law to be installed in a flood hazard area, and that the unit's foundation did not conform to code.  Appellants challenged the validity of the certificate of occupancy in light of the facts and contended a public body should not be able to avoid liability for misconduct merely by issuing a certificate.  Finally, Appellants reasoned that while an injunction against construction or issuance of a certificate of occupancy might no longer be appropriate, they were entitled to other relief, such as an order requiring Hoover's structure to comply with the law. 

On April 1, 2009, the circuit court granted summary judgment in favor of Hoover and the County.  Specifically, the circuit court found the declaratory judgment actions were moot because the County's subsequent grant of a certificate of occupancy rendered Appellants' issues non-justiciable.  In addition, the circuit court found Appellants were unable to demonstrate they would suffer irreparable harm in the absence of injunctive relief and dismissed their complaint with prejudice.  This appeal followed.  The County filed a brief, but Hoover did not. 

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the circuit court under Rule 56(c), SCRCP.  Englert, Inc. v. Netherlands Ins. Co., 315 S.C. 300, 302, 433 S.E.2d 871, 873 (Ct. App. 1993).  This standard requires all facts and reasonable inferences to be drawn therefrom to be viewed in the light most favorable to the appellant.  Id.  "Our standard of review in evaluating a motion for summary judgment is to liberally construe the record in favor of the nonmoving party and give the nonmoving party the benefit of all favorable inferences that might reasonably be drawn therefrom."  Estes v. Roper Temp. Servs., Inc., 304 S.C. 120, 121, 403 S.E.2d 157, 158 (Ct. App. 1991).  "An appellate court may decide questions of law with no particular deference to the [circuit] court."  In re Campbell, 379 S.C. 593, 599, 666 S.E.2d 908, 911 (2008).  However, the courts accord "great deference . . . [to] the decisions of those charged with interpreting and applying local zoning ordinances."  Eagle Container Co. v. Cnty. of Newberry, 379 S.C. 564, 568, 666 S.E.2d 892, 894 (2008).  Nevertheless, in applying the preponderance of the evidence standard, the nonmoving party is only required to "submit a mere scintilla of evidence in order to withstand a motion for summary judgment."  Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

LAW/ANALYSIS

I. Justiciable Controversy

With regard to their claims for declaratory judgment, Appellants contend the circuit court erred in concluding they failed to present a justiciable controversy because an intervening event rendered their argument moot.  We agree but affirm the circuit court on other grounds appearing in the record. 

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  Rule 56(c), SCRCP.  A declaratory judgment issued in accordance with sections 15-53-10 through 15-53-140 of the South Carolina Code (2005 & Supp. 2010) must comply with the South Carolina Rules of Civil Procedure.  Rule 57, SCRCP.  "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate."  Id. 

Generally, appellate courts only consider "cases presenting a justiciable controversy."  Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006).  According to our supreme court: 

A justiciable controversy exists when there is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute that is contingent, hypothetical, or abstract.   A moot case exists where a judgment rendered by the court will have no practical legal effect upon an existing controversy because an intervening event renders any grant of effectual relief impossible for the reviewing court.  If there is no actual controversy, this Court will not decide moot or academic questions.

Id. at 25-26, 630 S.E.2d at 477. 

We affirm the grant of summary judgment on other grounds appearing in the record.  "The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."  Rule 220(c), SCACR.  In the case at bar, Appellants lacked standing to assert a claim against Hoover and the County. 

Standing refers to a party's right to make a legal claim or seek judicial enforcement of a duty or right.  Generally, to have standing, a litigant must have a personal stake in the subject matter of the litigation.  Standing is comprised of three elements: (1) the plaintiff must have suffered an injury-in-fact that is concrete and particularized, and actual and imminent as opposed to hypothetical; (2) the injury and the conduct complained of the defendant must be causally connected; and (3) it must be likely that the injury will be redressed by a favorable decision.

Michael P. v. Greenville Cnty. Dep't of Soc. Servs., 385 S.C. 407, 415-16, 684 S.E.2d 211, 215 (Ct. App. 2009) (internal citations omitted).  Legal action may only be instituted by a person who has standing.  Sloan v. Greenville Cnty., 356 S.C. 531, 547, 590 S.E.2d 338, 347 (Ct. App. 2003). 

To have standing, one must have a personal stake in the subject matter of the lawsuit.  To have standing . . . one must be a real party in interest.  A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action. 

Id. at 547-48, 590 S.E.2d at 347 (internal citations and quotation marks omitted). 

We find Appellants lack standing in this case because they have failed to prove an injury-in-fact.  See Michael P., 385 S.C. at 415-16, 684 S.E.2d at 215 (requiring an actual injury, a causal connection between the complained-of action and the injury, and an ability by the court to redress the injury with a favorable decision).  Appellants sought declaratory judgments holding Hoover illegally cleared and graded his property, erected an unpermitted office trailer, improperly placed sewer taps, failed to comply with permitting and setback requirements, and abused his position as an employee of the County.  They sought a second declaratory judgment against Hoover for his alleged fraudulent use of his property as his primary residence for tax purposes.  They sought a third declaratory judgment against him for his failures relating to subdividing his property.  In addition, Appellants also sought a declaratory judgment against the County for failing to inspect or investigate Hoover's development, failing to enforce codes and ordinances, and affording Hoover preferential treatment in the development of his property.  None of these sought-after declaratory judgments identifies any injury to Appellants.  Furthermore, Appellants failed to produce even a scintilla of evidence to support their allegations that the construction activities on Hoover's lot damaged either their property values or their enjoyment of the lake, which they acknowledged they do not own. 

Moreover, because Appellants failed to produce any evidence the County's or Hoover's actions caused them to suffer an actual injury, they are unable to satisfy either of the remaining elements of standing.  Id.  Neither causation nor redressability exists in the absence of an injury-in-fact because both elements rely on the presence of the injury.  Without injury, causation is merely action unconnected to any effect.  Without injury, redressability lacks either an image by which to determine the nature of the appropriate remedy or a quantity by which to measure how much remediation is due.  Consequently, Appellants have failed to establish the requisite elements of standing, and their claim is non-justiciable. 

II.      Irreparable Harm

Next, with regard to their applications for injunctive relief, Appellants argue the circuit court erred in concluding they failed to produce any evidence to show they were irreparably harmed.  We disagree. 

Appellate courts review orders granting or denying injunctions for abuse of discretion.  Cnty. of Richland v. Simpkins, 348 S.C. 664, 668, 560 S.E.2d 902, 904 (Ct. App. 2002).  An abuse of discretion occurs when the circuit court enters a decision that is either unsupported by the evidence or controlled by an error of law.  Id.

An injunction is equitable in nature and will only be granted when no adequate remedy exists at law.  Strategic Res. Co. v. BCS Life Ins. Co., 367 S.C. 540, 544, 627 S.E.2d 687, 689 (2006).  Moreover: 

The party seeking an injunction has the burden of demonstrating facts and circumstances warranting an injunction.  The remedy of an injunction is a drastic one and ought to be applied with caution.  In deciding whether to grant an injunction, the court must balance the benefit of an injunction to the plaintiff against the inconvenience and damage to the defendant, and grant an injunction which seems most consistent with justice and equity under the circumstances of the case.

Id. (internal citations omitted).  A preliminary injunction is appropriate when the party seeking relief establishes that "(1) it would suffer irreparable harm if the injunction is not granted[,] (2) the party seeking injunction will likely succeed in the litigation[,] and (3) there is an inadequate remedy at law."  Id.

We affirm the circuit court's grant of summary judgment and denial of injunctive relief on the basis that Appellants failed to produce even a scintilla of evidence that they were irreparably harmed.  Appellants argue they are "qualified" to testify that Hoover's construction project has diminished the value of their respective properties.  Assuming their statement is correct, they failed to testify to any diminution in value.  Dempsey testified he had a gut feeling erosion from Hoover's lot negatively affected the value of his property.  Blue testified he also believed Hoover's activities devalued his property.  In addition, Dempsey testified the erosion from Hoover's property was damaging the water quality of the cove and adversely affecting his pleasure in using the lake.  Blue testified he believed the sediment eroded from Hoover's land would deposit in the cove that he and his neighbors had dredged some years before and would eventually limit his access to the lake.[3]  However, the record includes no testimony concerning the value of their properties prior to Hoover's construction project, the amount of depreciation they attributed to Hoover's construction activities, or any actual impact Hoover's project has had upon the enjoyment of their properties.  Moreover,  Dempsey did not present any evidence that Hoover's construction project adversely impacted the value of his property.  With not even a scintilla of evidence of any diminishment in property values, Appellants' testimonies failed to establish irreparable harm to their properties.  Accordingly, the circuit court did not abuse its discretion in denying them injunctive relief or in granting summary judgment to Hoover and the County. 

CONCLUSION

We find the evidence in the record supports a finding that Appellants lack standing to seek a declaratory judgment against Hoover and the County.  On that ground, we affirm the circuit court's conclusion that Appellants' claims for declaratory judgment are non-justiciable. 

In addition, we find the circuit court correctly denied Appellants injunctive relief because they failed to present even a scintilla of evidence demonstrating irreparable harm.  Accordingly, the decision of the circuit court is

AFFIRMED.

FEW, C.J., SHORT, J., and CURETON, A.J., concur. 


[1] Judge James R. Barber denied the temporary injunction.   

[2] Judge L. Casey Manning granted summary judgment. 

[3] However, both Dempsey and Blue conceded they did not own the lake or the portion of the cove in which they contend sediment was accumulating.  Moreover, this testimony amounted to pure speculation.