Beaufort County v. Butler

• Decision Date: 05 October 1994
• Docket Number: No. 24160,24160
• Citation: 316 S.C. 465,451 S.E.2d 386
• Parties: BEAUFORT COUNTY, Respondent, v. Donald S. BUTLER, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 386

451 S.E.2d 386

316 S.C. 465

BEAUFORT COUNTY, Respondent, v. Donald S. BUTLER, Appellant.

No. 24160.

Supreme Court of South Carolina.

Heard Oct. 5, 1994.

Decided Nov. 28, 1994.

Gilbert Scott Bagnell and Edward A. Frazier, Finkel, Goldberg, Sheftman & Altman, P.A., Columbia, for appellant.

Ladson F. Howell and Stephen P. Hughes, Howell, Gibson & Hughes, P.A., Beaufort, for respondent.

WALLER, Justice:

Appellant, Donald Butler, appeals an order permanently enjoining him from harvesting timber on his property. We affirm the grant of an injunction.

FACTS

A Beaufort County Ordinance prohibits property owners from removing trees with trunks in excess of 8"' if the removal is done "in contemplation of development," unless the property owner first obtains a development permit. Timber harvesting is exempt from the permitting requirement if not done in contemplation of development.

Butler owns a large parcel of land known as Laurel Hill Plantation in Beaufort County. He originally planned to develop the parcel as a marina and golf course and placed stakes throughout the property indicating hole numbers and designating hole numbers, "dogleg," center line fairway, etc. Unable to arrange financing for the golf course, Butler decided to put development of Laurel Hill "on hold" and harvest timber on the property to obtain working capital. When the Beaufort County Development Administrator (County) learned that Butler's timber harvesting was following the layout of the proposed golf course, it sought, and obtained, an ex parte Temporary Restraining Order (TRO) requiring Butler to cease further cutting pending a hearing on a permanent injunction on November 22, 1993, one week after issuance of the TRO.

At the November 22 hearing, the parties stipulated that it would serve as a trial on the merits. The trial judge, finding Butler's tree harvesting was being done "in contemplation of development," held Butler in violation of the ordinance and issued an injunction permanently enjoining his tree cutting.

One week later, Butler moved for rehearing or a new trial. The motion was denied.

ISSUE

The sole issue we address is whether the court erred in conducting a merits hearing one week after issuance of the TRO.

DISCUSSION

Initially, Butler contends the court lacked subject matter jurisdiction to hear the matter less than 120 days from the filing of the summons and complaint, as required by Rule 40(b)(2), SCRCP. We disagree.

The 120 day period dictated by Rule 40(b)(2), SCRCP, is a procedural right which may be waived. Paschal v. Causey, 309 S.C 206, 420 S.E.2d 863 (Ct.App.1992). A party who fails to object to the trial of a case and affirmatively agrees to its trial at a designated time cannot later assert that the trial court erred in trying the case before the close of the statutory period. Id. See also Windham v. Honeycutt, 279 S.C. 109, 302 S.E.2d 856 (1983). ¹

Butler also asserts the trial court was without subject matter jurisdiction to enter a permanent injunction at the hearing to determine whether the TRO should be continued. We disagree.

As a general rule, a permanent injunction should not be issued on an application for a preliminary injunction. Transcontinental Gas v. Porter, 252 S.C. 478, 167 S.E.2d 313 (1969); 43A CJS Injunction § 234 (1976). However, a permanent injunction may be entered where there has been a consolidation of the hearings pursuant to a rule of court or where the parties have consented to consolidation. Id.; see also Roberts v. Union County Board of Trustees, 284 S.C. 299, 326 S.E.2d 163 (Ct.App.1985). ²

Butler asks this Court to follow North Carolina law and hold that a hearing to determine whether a TRO should be continued may not be transformed into a merits hearing by consent of the parties. Everette v. Taylor, 77 N.C.App. 442, 335 S.E.2d 212 (1985). In Everette, the North Carolina Court of Appeals held the trial court was without jurisdiction to hold a merits hearing on consent of the parties. However, research reveals no other jurisdiction adopting this view, and North Carolina itself has recognized that there is no other caselaw which holds this to be a jurisdictional defect which cannot be waived. Shishko v. Whitley, 64 N.C.App. 668, 308 S.E.2d 448, 451 (1983). We decline to adopt the rule enunciated in Everette.

Aside from being an anomaly, North Carolina's view is inconsistent with established procedure in this state. It has long been accepted practice in South Carolina for attorneys to consent to a merits hearing at the hearing for a preliminary injunction. Such a procedure provides for an expeditious resolution of the matter and eliminates the need for a future hearing at which no further material facts would be gleaned. ³ Accordingly, we hold that the parties were properly permitted to stipulate to a hearing on the merits.

Finally, since counsel for Butler consented to the merits hearing, and the remainder of issues raised by Butler on appeal were not raised at that hearing, they are not preserved for review. Cook v. S.C. Dept. of Highways and Public Transportation, 309 S.C. 179, 420 S.E.2d 847 (1992). (Issues not timely raised to and ruled upon by trial court will not be addressed on appeal); Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821 (1989) (Constitutional issues must be...