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
Island
Preservation Company, LP and Thomas Dewey Wise, Respondents,
v.
State of South
Carolina and the South Carolina Department of Natural Resources, and Fenwick
Properties, LLC, Defendants,
Of Whom Fenwick
Properties, LLC is Appellant.
Appeal From Colleton County
Carmen T. Mullen, Circuit Court Judge
Unpublished Opinion No. 2010-UP-369
Heard April 13, 2010 Filed July 19, 2010
DISMISSED
Richard L. Tapp, Jr., and Stephen P.
Groves, Sr., of Charleston, for Appellant.
David K. Haller, of Charleston, for
Respondents.
PER CURIAM: Fenwick
Properties appeals the trial court's order granting partial summary judgment to
Island Preservation Company and Thomas Dewey Wise (collectively Island
Preservation), in which the court upheld a 1984 order declaring Island
Preservation's predecessor-in-title fee simple owner of marshland (Marsh
Property) due to a King's Grant. We find Fenwick Properties is not a party
aggrieved by this order and dismiss.
FACTS/PROCEDURAL
HISTORY
In the fall of 1983, Dewey
Wise contracted to purchase several hundred acres of land on South Fenwick
Island. For tax purposes, he asked his law partner at the time, W. Gregory
Pearce, to act as his agent in the transaction. At the closing on the
property, title was placed in Pearce's name, even though Wise provided all of
the funds for the purchase price. A declaratory judgment action was brought in
Pearce's name against the State of South Carolina requesting a declaration
Pearce was the owner in fee simple to the mean low water mark by virtue of a
King's Grant. Before the court issued its ruling in the declaratory judgment
action, Pearce conveyed the property to Wise. Neither Pearce nor Wise moved to
amend the complaint in the action to substitute Wise as a party. In October of
1984, the court issued an order ruling the property line extended to the low
water mark. This order was not appealed. Wise subsequently transferred the
property to Island Preservation Company, of which he is the general partner. When
questions arose concerning the King's Grant in 2005, Pearce executed a quit
claim deed for the Marsh Property within the King's Grant.
In April of 2006, Island
Preservation brought the present declaratory judgment action against the State
seeking a declaration the October 1984 order was valid. In its second amended
complaint, it named as Defendants both the State and the South Carolina
Department of Natural Resources (DNR), which by way of a 2005 deed from the
Nature Conservatory may have a competing claim to a portion of the Marsh
Property. In addition to requesting a declaration concerning the validity of
the 1984 order, it asked for a declaration that its title was superior to any
competing claim. In the alternative, it requested the court find it possessed
fee simple title to the tidelands between the high water mark and low water
mark as it can trace its title to King George II of England. In their answer,
the State and DNR asserted the 1984 order was not valid because the named
plaintiff, Gregory Pearce, had conveyed the property prior to the issuance of
the order. They also asked for a declaration DNR's 2005 deed prevailed over any
claim Island Preservation had to the overlapping property and for an
adjudication of the boundaries between DNR and Island Preservation's
properties.
Fenwick Properties moved to
intervene in the proceedings, claiming an interest due to its ownership of
property on South Fenwick Island, possession of an easement over Island
Preservation's property, and being the holder of a dock permit over the
disputed marsh. The trial court granted the motion to intervene. It
subsequently granted Island Preservation's motion for partial summary
judgment. It held Pearce was a real party in interest in the 1984 litigation,
and thus, the 1984 order was valid. The court stated the remaining issues
between the parties would be litigated later.
All of the defendants moved
for reconsideration of the order. In the substituted order, the court again
found the 1984 order to be valid. It noted: "Fenwick Properties, which
seeks to have an easement at the location interpreted, has no claim to fee
simple title to the tidelands. The arguments offered by Fenwick Properties
concern the validity of the grant; it has not questioned the validity of the
1984 order." It reiterated the remaining issues not covered in the order
granting summary judgment could still be litigated, "specifically the
State's claims relating to its 2005 deed to the marshes of Pine Island and the
claims of Fenwick Properties." This appeal followed.
LAW/ANALYSIS
Island Preservation argues
Fenwick Properties does not have the right to appeal the trial court's order as
it is not a party aggrieved by the order. We agree.
The South Carolina Appellate
Court Rules limit the ability to appeal to [o]nly a party aggrieved by an order,
judgment . . . or decision. . . . Rule 201(b), SCACR. As used by this rule,
the word "aggrieved" means "a substantial grievance, a denial of
some personal or property right, or the imposition on a party of a burden or
obligation. Powell ex rel. Kelley v. Bank of Am., 379 S.C. 437, 447,
665 S.E.2d 237, 243 (Ct. App. 2008). A party is aggrieved by a judgment or
decree when it operates on his or her rights of property or bears directly on
his or her interest. Id. "There is no material distinction in
general standing principles juxtaposed to the ability of an 'aggrieved party'
to appeal pursuant to Rule 201(b)." Id. at 447, 665 S.E.2d at
242.
Standing concerns whether a
party has sufficient interest in the outcome of the litigation to warrant
consideration of that party's position by a court. Powell, 379 S.C. at
444, 665 S.E.2d 237 at 241. Generally, to have standing, a party must have a
personal stake in the subject matter of the litigation. Michael P. v.
Greenville Dep't of Soc. Servs., 385 S.C. 407, 415-16, 684 S.E.2d 211, 215
(Ct. App. 2009).
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.
Id. at 416, 684 S.E.2d at 215.
Fenwick Properties contends
it has standing because enforcing the 1984 order against it is a violation of
its due process rights. See S.C. Coastal Conservation League v. S.C.
Dep't of Health & Envtl. Control, 380 S.C. 349, 669 S.E.2d 899 (2008)
(stating procedural due process requires notice, an opportunity to be heard,
and meaningful judicial review to an individual whose property or liberty
interests would be affected). Fenwick Properties does not claim a fee simple
interest in the Marsh Property. Instead, it asserts that as the holder of an
easement, it cannot be bound by the 1984 order because its predecessor-in-title
was not named as a party in the 1984 litigation. However, the 1984 action
simply determined Island Preservation's predecessor-in-title possessed a King's
Grant of the Marsh Property. It did not adversely affect any easement interest
over what is now Island Preservation's property. It was therefore unnecessary
for Pearce to name Fenwick Properties' predecessor-in-title as a party
defendant. See S.C. Code Ann. § 15-67-70 (2005) ("Any judgment
entered in an action to try adverse claims shall be binding upon all of
the defendants joined in the action.") (emphasis added). Island
Preservation acknowledged the existence of an easement from and to the property
known as the Landing in a 1996 Mutual Release and Settlement Agreement. The
present action only upholds the validity of the 1984 order and does not in any
way limit Fenwick Properties' easement. Thus, Fenwick Properties' due process
rights were not violated.
Fenwick Properties also
asserts it has standing in this appeal because the trial court's order
adversely impacts its right to construct a dock on the Marsh Property. In
February of 2005, the Department of Health and Environmental Control (DHEC),
Bureau of Ocean and Coastal Resource Management (OCRM), issued Fenwick
Properties a dock permit authorizing it to construct a dock on Island
Preservation's property. Island Preservation appealed the permit to the
Administrative Law Court, which stayed the appeal pending the resolution of the
present action, stating the issue of ownership of the marsh was
"paramount."
Although Fenwick Properties does
not state why the issue of title is so important to its dock permit, Island
Preservation explains Fenwick Properties will need its permission before it can
build a dock across the Marsh Property if Island Preservation is the fee simple
owner. See 23A S.C. Code Ann. Regs. 30-2 (I) (Supp. 2009) (requiring a
deed, lease, or other instrument from the critical area landowner that would
allow construction of the proposed project, or written permission from such
owner); Lowcountry Open Land Trust v. State, 347 S.C. 96, 111, 552
S.E.2d 778, 786 (Ct. App. 2001) ("[I]f ownership vests in private hands,
an adjacent landowner desiring to build on tidelands must obtain the express
consent of the fee simple owner.")
The supreme court and this
court have both recognized that a party does not necessarily have standing in
one action merely because that action may affect its interest in another
action. See e.g., Ex Parte Gov't Employee's Ins. Co., 373 S.C.
132, 644 S.E.2d 699 (2007); Powell. In Ex Parte Government
Employee's Insurance Company, Ronnie Cooper claimed he was entitled to
stack underinsured motorist coverage provided by Government Employee's Insurance
Company (GEICO) to Yolanda Goethe, whom he claimed was his common-law wife. 373
S.C. at 134, 644 S.E.2d at 700. Cooper filed an action in family court seeking
an order validating his common marriage to Goethe. Id. GEICO moved for
joinder and to intervene in the family court action. Id.
The supreme court affirmed
the family court's denial of the motions. Id. at 139, 644 S.E.2d at
703. The court recognized the existence of a common law marriage may have
impacted GEICO's liability to Cooper and thus GEICO may have been affected by
the outcome of the family court action. Id. at 136, 644 S.E.2d at 701.
However, it found GEICO's interest was in the financial implications of the
family court's decision, which was "merely tangential" and
"peripheral" to the family court action. Ex Parte Gov't
Employee's Ins. Co., 373 S.C. at 136-39, 644 S.E.2d at 701-02. It held
this interest was insufficient to warrant GEICO's intervention in the family
court action. Id.
In Powell, a minor
brought an action through his conservator and his mother against his aunt
seeking the return of life insurance proceeds his aunt had converted. 379 S.C.
at 442, 665 S.E.2d at 240. The minor also named as a defendant Bank of
America, where the aunt had deposited the funds in her own account and purchased
certificates of deposit rather than placing the funds in a restricted account
as ordered by the probate court. Id. at 441-42, 665 S.E.2d at 239-40. The
minor's mother, who had previously sued the aunt for conversion of the funds
and had received a judgment against her, moved to intervene and for
interpleader of funds from the aunt which had been deposited with the clerk of
court. Id. at 441-42, 665 S.E.2d at 240. After a contested hearing,
the trial court apportioned the funds between the minor and his mother. Id.
at 443, 665 S.E.2d at 240. This court dismissed Bank of America's appeal of
this order holding the bank had no interest in the subject matter of the
apportionment of the escrowed funds. Id. at 443, 665 S.E.2d at 241. We
rejected Bank of America's argument it had standing because if all of the
interpleaded funds were allocated to the minor, the minor's damages would be
reduced, and thus, Bank of America's potential liability would be reduced. Powell,
at 445, 665 S.E.2d at 241. The court noted "Not every practical concern
equates to the legal interest required for standing." Id. at 445,
665 S.E.2d at 241. We found Bank of America's interest in maximizing the
minor's share of the interpleaded funds was speculative and contingent. Id.
The order on appeal concerns
only the validity of the 1984 order issued in an action in which Fenwick
Properties was not a party. The order in no way limits or otherwise affects
Fenwick Properties' easement over Island Preservation's property. Fenwick
Properties' interest in the administrative action of whether it would have to
obtain Island Preservation's permission to build its dock is "merely
tangential" and "peripheral" to the present appeal. Accordingly,
we find Fenwick Properties is not a party aggrieved by the order and dismiss
the appeal.
DISMISSED.[1]
HUFF, THOMAS, and LOCKEMY,
JJ., concur.
[1] Fenwick Properties argues the trial court should have
denied summary judgment because Island Preservation had failed to respond to
any of Fenwick Properties' discovery requests. The trial court did not rule on
this issue in its original order and Fenwick Properties failed to request a
ruling in its motion to alter or amend. Accordingly, this argument is not
properly before this court. See I'On, L.L.C. v. Town of Mt. Pleasant,
338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ("If the losing party has
raised an issue in the lower court, but the court fails to rule upon it, the
party must file a motion to alter or amend the judgment in order to preserve
the issue for appellate review.").