Berry v. McLeod, No. 2718

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Citation328 S.C. 435,492 S.E.2d 794
Docket NumberNo. 2718
Decision Date05 June 1997
PartiesEldon M. BERRY, Freddie D. Johnson, Betty Temple, William Coppage, II, Patsy V. Coppage, Sammie King, A.L. Kirkland, Charles H. Cash, C.A. Armstrong, Jr., Norman Strader, Bryon Turner, Henry Rowland, Lillian S. Hammack, Durand G. Coates, J.D. Southerland, W.E. Crawford, and B. Jack Walker Appellants, v. Daniel R. McLEOD, Jr., The McNair Law Firm, John W. Harte, and George Cantelou, Respondents. . Heard

Page 794

492 S.E.2d 794
328 S.C. 435
Eldon M. BERRY, Freddie D. Johnson, Betty Temple, William
Coppage, II, Patsy V. Coppage, Sammie King, A.L. Kirkland,
Charles H. Cash, C.A. Armstrong, Jr., Norman Strader, Bryon
Turner, Henry Rowland, Lillian S. Hammack, Durand G. Coates,
J.D. Southerland, W.E. Crawford, and B. Jack Walker Appellants,
v.
Daniel R. McLEOD, Jr., The McNair Law Firm, John W. Harte,
and George Cantelou, Respondents.
No. 2718.
Court of Appeals of South Carolina.
Heard June 5, 1997.
Decided Sept. 22, 1997.
Rehearing Denied Nov. 24, 1997.
Certiorari Denied Apr. 9, 1998.

Page 797

[328 S.C. 440] Francis T. Draine, Columbia, for appellants.

Robert B. Wallace and Paul E. Tinkler, both of Wallace and Tinkler, Charleston; Wilburn Brewer, Jr. and Ralph W. Barbier, both of Nexsen, Pruet, Jacobs & Pollard, and Frederick A. Gertz, of Gertz & Moore, Columbia, for respondents.

PER CURIAM.

The appellants are residents of the Town of New Ellenton, South Carolina (Residents). They brought this action for legal malpractice and civil conspiracy against the town's former corporate counsel, John W. Harte (Harte); bond counsel, Daniel R. McLeod and The McNair Law Firm (bond counsel) (collectively referred to as "Attorneys"); and a developer, George Cantelou (Cantelou). Cantelou was dismissed from the suit in a ruling which Residents do not now contest. Residents allege Attorneys committed legal malpractice in their handling of a New Ellenton revenue bond issued to fund construction of a sewer system, conspiring with Cantelou to benefit his private development. Attorneys filed motions to dismiss under Rule 12(b)(6) and moved in the alternative for summary judgment on the grounds that the court lacked subject matter jurisdiction, the complaint failed to state facts sufficient to constitute a cause of action, and the statutes of limitation had expired. The trial judge granted the motions, concluding the amended complaint failed to allege facts sufficient to state a claim for individual recovery; the plaintiffs lacked standing; and their claims were barred by both the general and the bond statutes of limitation. We affirm.

I. FACTS

This action arises following the issuance of a revenue bond in the amount of $5,002,500 to finance the construction and installation of a sewer system in New Ellenton, South Carolina. The bond was issued in accordance with an ordinance adopted by the town council and was signed by the mayor on June 25, 1990. The bond was then filed with the clerk of court in Aiken County on June 28, 1990 as required by S.C.Code Ann. § 11-15-10 (1986). No action was brought to contest the [328 S.C. 441] bond within twenty days of this filing, and Residents concede the bond was incontestable when this suit was brought.

Residents allege Attorneys misrepresented a large septic system as an existing sewer system, which allowed the town to pass the bond ordinance without holding a referendum. Residents also allege Attorneys misrepresented the true financial ramifications of the bond, misleading town council and Residents about its economic viability and by assuring them connection to the system would be optional. They did this, according to Residents, by conspiring with Cantelou and the mayor, so Cantelou could publicly fund a sewer system to benefit his private development.

Residents claim damage in the form of excessive, mandatory tap-in and user fees and depreciation to their property resulting from the bond indebtedness and obligations. They also claim damage from the loss of their right to vote on the issue. Additionally, they argue standing to bring this suit on behalf of the town, which they allege has been damaged by the bond obligations.

The trial court concluded the claims should be dismissed because they were barred by the expiration of the statutes of limitation and Residents had no standing to bring them. We agree.

II. SCOPE OF REVIEW

A Rule 12(b)(6) motion to dismiss for failure to state a cause of action must be resolved by the trial judge based solely on the allegations established in the complaint. See Woodell v. Marion Sch. Dist. One, 307 S.C. 297, 414 S.E.2d 794 (Ct.App.1992). The motion cannot be granted if the facts set forth in the complaint and the inferences reasonably drawn therefrom would entitle the plaintiff to any relief on any theory of the case. Brown v. Leverette, 291 S.C. 364, 353 S.E.2d 697 (1987).

Page 798

The trial court decided the motion based not only upon the pleadings, but also after considering the bond ordinance. By doing so, the court converted the motion to dismiss into a summary judgment motion pursuant to Rule 56, SCRCP. See McDonnell v. Consol. Sch. Dist. of Aiken, 315 S.C. 487, 445 [328 S.C. 442] S.E.2d 638 (1994). There is no appeal from this ruling, and thus, it becomes the law of the case. Resolution Trust Corp. v. Eagle Lake and Golf Condominiums, 310 S.C. 473, 427 S.E.2d 646 (1993).

Summary judgment is proper when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP. "Summary judgment should be granted when plain, palpable, and undisputable facts exist on which reasonable minds cannot differ." Byerly v. Connor, 307 S.C. 441, 445, 415 S.E.2d 796, 799 (1992). In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the non-moving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 443 S.E.2d 392 (1994).

III. DISCUSSION

A. Twenty day statute of limitations

Residents contend the trial court erred in finding the twenty day statute of limitations under S.C.Code Ann. § 11-15-30 applicable. S.C.Code Ann. § 11-15-10 (1986) provides:

In case any county, township, school district, city, town or other municipality is authorized to issue bonds in pursuance of law, the persons and officers charged therewith shall make a full record of the proceedings connected with such bond issue, and a copy of the record of such proceedings shall be filed and indexed in the office of the clerk of court of the county in a special book to be furnished therefor.

Id.

S.C.Code Ann. § 11-15-30 (1986) provides:

No action shall be commenced on account of the issuance of any such bonds after the expiration of twenty days from the date of the filing and indexing of such records as prescribed by §§ 11-15-10 and 11-15-20, and such bonds so issued, when in the hands of a bona fide purchaser for value, shall be incontestable, but the period within which such [328 S.C. 443] actions may be commenced shall not begin to run until such records have been filed as herein prescribed.

Id.

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634 (1992). The words of a statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand a statute's operation. First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992). Therefore, if an action is "commenced on account of the issuance" of a bond within the meaning of S.C.Code Ann. § 11-15-30, the action must be commenced within twenty days of the date that the documents related to the bond were filed pursuant to S.C.Code Ann. § 11-15-10.

The issuance of the bond was documented by the town and filed in the clerk of court's office in Aiken County on June 28, 1990. The bond records were then properly indexed in miscellaneous civil book 7, file number 12, 101. The requirements of public notification established in S.C.Code Ann. § 11-15-10 were met. The proper filing and indexing of the record of bond documents on June 28, 1990 started the twenty day contestability period under Section 11-15-30, which ended without any contest on July 18, 1990.

This suit was not filed until July 7, 1995 and is undeniably outside of the twenty day contestability period. Therefore, to the extent these causes of action are "commenced on account of the issuance of a bond," this suit is barred. Residents do not contest, in fact they acknowledge, the incontestability of the bonds. They argue they and/or the town have suffered damage because of the bond obligations and the economic burden placed on them now that it is incontestable.

Page 799

In Morgan v. Feagin, 230 S.C. 315, 95 S.E.2d 621 (1956), our supreme court addressed the statute of limitations which required actions to contest the validity of a county school bond to be brought within thirty days. The supreme court stated:

Similar short statutes of limitation, applicable to actions which question the proceedings upon the issuance of municipal and other bonds have been of force in this State for [328 S.C. 444] many years, apparently without challenge heretofore. Code of 1952, Sec. 1-645, twenty days 1; Sec. 21-976, thirty days; and Sec. 47-842,...

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49 practice notes
  • Epstein v. Brown, No. 25953.
    • United States
    • United States State Supreme Court of South Carolina
    • March 21, 2005
    ...the wrongful conduct. See Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996); S.C.Code Ann. § 15-3-535. See also Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997). The exercise of reasonable diligence means simply that an injured party must act with some promptness where th......
  • Holy Loch Distributors v. Hitchcock, No. 2860.
    • United States
    • Court of Appeals of South Carolina
    • June 29, 1998
    ...(Supp.1997) ("action[s] for any injury to the person or rights of another, not arising on contract," i.e., tort actions); Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997) (legal malpractice claim), cert. denied (S.C.1998). The statute of limitations for bringing a contract action......
  • Ralph v. McLaughlin, Appellate Case No. 2017-000866
    • United States
    • Court of Appeals of South Carolina
    • August 21, 2019
    ...428 S.C. 341 Shirley's Iron Works, Inc. v. City of Union , 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013) ; see also Berry v. McLeod , 328 S.C. 435, 442, 492 S.E.2d 794, 798 (Ct. App. 1997) ("There is no appeal from this ruling, and thus, it becomes the law of the case."). "Where no exceptio......
  • Williams v. Condon, No. 3392.
    • United States
    • Court of Appeals of South Carolina
    • October 1, 2001
    ...v. Hitchcock, 332 S.C. 247, 503 S.E.2d 787 (Ct.App.1998), rev'd on other grounds, 340 S.C. 20, 531 S.E.2d 282 (2000); Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997). The motion will not be sustained if the facts alleged and the inferences reasonably deducible from the pleadings......
  • Request a trial to view additional results
49 cases
  • Epstein v. Brown, No. 25953.
    • United States
    • United States State Supreme Court of South Carolina
    • March 21, 2005
    ...the wrongful conduct. See Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996); S.C.Code Ann. § 15-3-535. See also Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997). The exercise of reasonable diligence means simply that an injured party must act with some promptness where th......
  • Holy Loch Distributors v. Hitchcock, No. 2860.
    • United States
    • Court of Appeals of South Carolina
    • June 29, 1998
    ...(Supp.1997) ("action[s] for any injury to the person or rights of another, not arising on contract," i.e., tort actions); Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997) (legal malpractice claim), cert. denied (S.C.1998). The statute of limitations for bringing a contract action......
  • Ralph v. McLaughlin, Appellate Case No. 2017-000866
    • United States
    • Court of Appeals of South Carolina
    • August 21, 2019
    ...428 S.C. 341 Shirley's Iron Works, Inc. v. City of Union , 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013) ; see also Berry v. McLeod , 328 S.C. 435, 442, 492 S.E.2d 794, 798 (Ct. App. 1997) ("There is no appeal from this ruling, and thus, it becomes the law of the case."). "Where no exceptio......
  • Williams v. Condon, No. 3392.
    • United States
    • Court of Appeals of South Carolina
    • October 1, 2001
    ...v. Hitchcock, 332 S.C. 247, 503 S.E.2d 787 (Ct.App.1998), rev'd on other grounds, 340 S.C. 20, 531 S.E.2d 282 (2000); Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997). The motion will not be sustained if the facts alleged and the inferences reasonably deducible from the pleadings......
  • Request a trial to view additional results

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