Ashenfelder v. City Of Georgetown, 4725.

• Decision Date: 11 August 2010
• Docket Number: No. 4725.,4725.
• Citation: 698 S.E.2d 856,389 S.C. 568
• Court: South Carolina Court of Appeals
• Parties: David ASHENFELDER, Respondent-Appellant,v.CITY OF GEORGETOWN, Appellant-Respondent.

389 S.C. 568

698 S.E.2d 856

David ASHENFELDER, Respondent-Appellant,v.CITY OF GEORGETOWN, Appellant-Respondent.

No. 4725.

Court of Appeals of South Carolina.

Heard Dec. 10, 2009.

Decided Aug. 11, 2010.

Rehearing Denied Sept. 24, 2010.

Andrew F. Lindemann, of Columbia, for Appellant-Respondent.

David J. Gundling, of Pawleys Island, for Respondent-Appellant.

PER CURIAM.

In this cross-appeal, the City of Georgetown (the City) alleges the trial court erred in denying its directed verdict motions on David Ashenfelder's causes of action for conversion and prescriptive easement. Ashenfelder alleges the trial court erred in granting directed verdicts on his causes of action for adverse possession, declaratory judgment, estoppel, trespass, and inverse condemnation prior to the declaration of a mistrial. We dismiss the appeal as premature.

FACTS/PROCEDURAL BACKGROUND

A vehicle struck and severely damaged a billboard in Georgetown operated by Ashenfelder. Prior to the accident, Ashenfelder never formally sought a sign permit from the City. After the accident, the City removed and disposed of the damaged billboard and Ashenfelder inquired as to the possibility of rebuilding the billboard. The City informed Ashenfelder that the billboard was located on city property and that the City would not issue a permit allowing him to rebuild.

Ashenfelder originally filed suit against the City asserting certain federal constitutional claims along with state law claims. The City removed the action to the United States District Court for the District of South Carolina. Subsequently, the district court dismissed Ashenfelder's federal claims and remanded the state law claims to the circuit court. Upon remand, Ashenfelder amended his complaint to add Lucien Bruggeman as an additional defendant. In his second amended complaint, Ashenfelder asserted causes of action for adverse possession and prescriptive easement against Bruggeman he also asserted causes of action for conversion, negligence trespass, estoppel, declaratory judgment, and inverse condemnation against the City.

The case proceeded to trial, and the City moved for directed verdicts on all causes of action at the close of Ashenfelder's case. The trial court directed a verdict and dismissed Ashenfelder's causes of action for adverse possession, declaratory judgment, estoppel, negligence,¹ trespass, and inverse condemnation. The trial judge denied the City's motion for a directed verdict on Ashenfelder's claims for conversion and prescriptive easement. After the jury was unable to reach a verdict, the trial court declared a mistrial and denied the City's renewed directed verdict motions on the remaining two causes of action. The City and Ashenfelder both appealed.²

STANDARD OF REVIEW

An appellate court may determine the question of appealability of a decision from a lower court as a matter of law. See S.C.Code Ann. § 14-3-330 (1976 & Supp.2009) (creating appellate jurisdiction in law cases); S.C.Code Ann. § 14-8-200(a) (Supp.2009) (setting forth the appellate jurisdiction of the court of appeals); City of Newberry v. Newberry Elec. Coop., Inc., 387 S.C. 254, 256, 692 S.E.2d 510, 512 (2010) (“Statutory interpretation is a question of law.”). Even if not raised by the parties, this court may address the issue of appealability ex mero motu. Main Corp. v. Black, 357 S.C. 179, 180-81, 592 S.E.2d 300, 301 (2004) (affirming an order issued by the court of appeals ex mero motu dismissing an interlocutory appeal); St. Francis Xavier Hosp. v. Ruscon/Abco, 285 S.C. 584, 586, 330 S.E.2d 548, 549 (Ct.App.1985) (addressing the question of appealability even though neither party raised the issue).

LAW/ANALYSIS

The City alleges the trial court erred in denying its directed verdict motions on Ashenfelder's causes of action for conversion and prescriptive easement. In his cross-appeal, Ashenfelder alleges the trial court erred in directing verdicts on his causes of action for adverse possession, declaratory judgment, estoppel, trespass, and inverse condemnation.

This case presents a question as to the effect of a mistrial on appealability in a case with multiple claims and multiple defendants where the court directs a verdict on some, but not all, claims prior to the mistrial. Jurisprudence as to a mistrial holds:

A mistrial is the equivalent of no trial and leaves the cause pending in the circuit court. State v. Smith, 336 S.C. 39, 518 S.E.2d 294 (Ct.App.1999). It leaves the parties “as though no trial had taken place.” Grooms v. Zander, 246 S.C. 512, 514, 144 S.E.2d 909, 910 (1965) (rulings of trial judge in proceeding ending in mistrial represent no binding adjudication upon the parties as the mistrial leaves the parties in status quo ante). A court ruling as to admissibility and competency of testimony during a trial which is later declared a mistrial results “in no binding adjudication of the rights of the parties.” Keels v. Powell, 213 S.C. 570, 572, 50 S.E.2d 704, 705 (1948).

State v. Woods, 382 S.C. 153, 158, 676 S.E.2d 128, 131 (2009). A mistrial based on the failure of a jury to agree is not directly appealable. Keels, 213 S.C. at 572-73, 50 S.E.2d at 705. The denial of a directed verdict is not appealable until after final judgment. Id. at 573, 50 S.E.2d at 705.

Section 14-3-330 controls the right of appeal. Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006).

The Supreme Court shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal:

(1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from;

(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action;

(3) A final order affecting a substantial right made in any special proceeding or upon a summary application in any action after judgment; and

(4) An interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver.

S.C.Code Ann. § 14-3-330 (emphasis in original). The court of appeals also exercises its appellate jurisdiction under this statute. S.C.Code Ann. § 14-8-200(a) (“This jurisdiction is appellate only, and the court shall apply the same scope of review that the Supreme Court would apply in a similar case.”).

The appellate courts of our state have addressed the appealability of final decisions of the trial courts. See, e.g. Lewis v. State, 368 S.C. 630, 631, 630 S.E.2d 464, 464 (2006) (“Any judgment or decree, leaving some further act to be done by the court before the rights of the parties are determined, is interlocutory; but if it so completely fixes the rights of the parties that the court has nothing further to do in the action, then it is final.”) (quoting Adickes v. Allison & Bratton, 21 S.C. 245, 259 (1884)); Jefferson by Johnson v. Gene's Used Cars, Inc., 295 S.C. 317, 318, 368 S.E.2d 456, 456 (1988) (finding an interlocutory order is appealable under S.C.Code Ann. § 14-3-330(1) only if it involves the merit s, i.e. it “finally determines some substantial matter forming the whole or a part of some cause of action or defense ....”) (quoting Henderson v. Wyatt, 8 S.C. 112, 112 (1877)); Lakes v. State, 333 S.C. 382, 384-85, 510 S.E.2d 228, 230 (Ct.App.1998) (“An appellate court has jurisdiction to review an order affecting a substantial right when the order has the effect of discontinuing the action or preventing an appealable judgment.”) (citing S.C.Code Ann. § 14-3-330(2)(a) (Supp.1997)); Breland v. Love Chevrolet Olds, Inc., 339 S.C. 89, 93-94, 529 S.E.2d 11, 13 (2000) (stating that the court does not generally allow immediate appellate review of the denial of any motions made pursuant to Rules 12(b) or 12(c), SCRCP); Bank of N.Y. v. Sumter County, 387 S.C. 147, 154, 691 S.E.2d 473, 477 (2010) (noting it is well-settled that an order denying summary judgment is never reviewable on appeal) (citing Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 580 S.E.2d 440 (2003)); Keels, 213 S.C. at 573, 50 S.E.2d at 705 (holding an order refusing to direct a verdict is not appealable until after final judgment).

Because the trial court denied the City's motions for directed verdict, the City's issues on appeal are not immediately appealable. See Keels, 213 S.C. at 573, 50 S.E.2d at 705. As to Ashenfelder's cross-appeal, this case further presents an opportunity to address the effect, if any, of Rule 54(b) of the South Carolina Rules of Civil Procedure upon our jurisprudence. Rule 54(b) states:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties,

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