Cricket Cove Ventures, LLC v. Gilland

• Decision Date: 29 October 2010
• Docket Number: No. 4730.,4730.
• Citation: 701 S.E.2d 39,390 S.C. 312
• Court: South Carolina Court of Appeals
• Parties: CRICKET COVE VENTURES, LLC, Appellant, v. Elizabeth GILLAND, Harold G. Worley and Persons Unknown, being "Jane Doe" and "Richard Roe," Defendants, Of Whom Elizabeth Gilland and Harold G. Worley are Respondents.

701 S.E.2d 39

390 S.C. 312

CRICKET COVE VENTURES, LLC, Appellant,

v.Elizabeth GILLAND, Harold G. Worley and Persons Unknown, being "Jane Doe" and "Richard Roe," Defendants,Of Whom Elizabeth Gilland and Harold G. Worley are Respondents.

No. 4730.

Court of Appeals of South Carolina.

Submitted June 1, 2010.

Decided Aug. 25, 2010.

Rehearing Denied Oct. 29, 2010.

Kenneth R. Moss, Jr., of Little River, for Appellant.

Emma Ruth Brittain, of Myrtle Beach, for Respondents.

GEATHERS, J.

Appellant Cricket Cove Ventures, LLC (Cricket Cove) brought this civil conspiracy action against Horry County Council Chairperson Elizabeth Gilland and Council memberHarold G. Worley (collectively, Respondents), seeking relief from the County's refusal to review a sketch plan of a proposed development within Worley's electoral district. Cricket Cove challenges the circuit court's order dismissing its complaint pursuant to Rule 12(b)(8), SCRCR. We affirm the circuit court's dismissal of Cricket Cove's injunction and mandamus causes of action on the ground that they are unsustainable under Rule 12(b)(6), SCRCR. We reverse the dismissal of the civil conspiracy cause of action and remand for further proceedings.

FACTS/PROCEDURAL HISTORY

On October 18, 2005, Cricket Cove brought an action against Horry County and Horry County Council (Council) seeking relief for the refusal of Horry County staff to review Cricket Cove's sketch plan of its proposed development within Worley's electoral district. The complaint alleged that in January 2005, Cricket Cove purchased approximately 27 acres in the Little River area of Horry County. The property was located in a Resort Commercial zoning district, where construction height was unlimited, subject to parking and flight path ordinances. On July 7, 2005, Council held a special meeting and gave first reading to Ordinance 107-05 for the purpose of limiting the height of all new construction within the Little River area to sixty feet. The meeting was not properly advertised, and Cricket Cove was not informed of Council's intent to give first reading to the ordinance.

Cricket Cove also claimed that on August 3, 2005, it submitted a sketch site plan to the county's planning department for review and comment. Cricket Cove advised planning department employees of its intent to construct two condominium buildings that would contain over 200 units each. The planning department accepted the sketch plan for review.

Cricket Cove further alleged that on August 4, 2005, Ordinance 107-05 was referred to the Horry County Planning Commission (Commission) for review. The Commission voted to recommend disapproval of the ordinance. On August 16, 2005, Council deferred a second vote on the ordinance and referred it to Council's Infrastructure and Regulations Committee. Meanwhile, a planning department employee sent aletter to Cricket Cove stating that its sketch plan needed several modifications. After making the modifications, Cricket Cove scheduled a meeting with the employee for review of the plan. Several county representatives attended the meeting to advise Cricket Cove that the plan could not be reviewed because it contemplated new construction that would exceed sixty feet in height. Cricket Cove's agents requested a written rejection or a letter stating the reason for the refusal to review the sketch plan, but county representatives refused the request.

In its October 2005 complaint against Horry County and Council, Cricket Cove sought a declaratory judgment that the County and Council had violated Ordinance 49-05, was acting upon an invalid pending ordinance (draft Ordinance 107-05), and was violating Cricket Cove's vested right to have its plan reviewed. It also alleged the County and Council were taking its property without just compensation, violating its due process rights, and denying it equal protection under the law. Cricket Cove also sought a writ of mandamus requiring the County and Council to review its proposed plan.

On July 14, 2006, nine months after filing the action against the County and Council, Cricket Cove brought the present action against Worley, Gilland and "Persons Unknown, being 'JaneDoe' [sic] And 'Richard Roe,' " seeking damages for civil conspiracy and injunctive relief. Cricket Cove sought to prohibit Respondents from giving orders or instructions to county employees in violation of section 4-9-660 of the South Carolina Code (1986) and also to prohibit Respondents from discussing outside a public forum those matters coming before Council at its meetings.

The complaint alleged many of the same facts asserted in the action against Horry County, including inadequate advance notice of Council meetings. It also alleged that Council conducted a meeting on October 25, 2005, and "draft Ordinance 107-05 was voted on with a series of amendments." Gilland announced that a public hearing on the proposed draft Ordinance 107-05, as amended, would be conducted at a Third Reading of the proposed ordinance. The county attorney advised that the changes made to the draft ordinance "constituted a major change to the text of the proposed [o]rdinanceand that it should be referred to Horry County Planning Commission for consideration." After an unscheduled recess, Gilland admitted that discussion between Council members concerning the proposed ordinance had occurred outside the public forum.

Cricket Cove further claimed that at Council's January 2006 meeting, draft Ordinance 107-05 was under review for Third Reading, and when a Council member sought to amend the draft, Worley asked for a recess. During the recess, certain Council members discussed the proposed ordinance outside the public forum. Upon return to the public forum, the proposed amendment was not discussed, but a vote was taken to defer Third Reading until the next scheduled Council meeting. At the February 2006 meeting, Council adopted an amendment to the proposed ordinance that changed the height limitations to affect only Worley's district and to exempt from the height limitations all other areas of the county. Council also adopted an amendment that had the effect of changing the height limitation for construction in Worley's district from 180 feet to 120 feet. During the meeting, an unscheduled recess occurred. After the recess, Gilland admitted that Council members had discussed Ordinance 107-05 outside the public forum.

The complaint alleged Gilland and Worley, in their individual capacities, as well as persons unknown engaged in a civil conspiracy to harm Cricket Cove. The complaint also sought to enjoin Gilland and Worley from giving orders to County staff in furtherance of the conspiracy and from discussing draft ordinances with other Council members outside the public forum. Cricket Cove also requested a writ of mandamus requiring Gilland to properly advertise Council meetings. On August 24, 2006, Gilland and Worley filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP, and Rule 12(b)(8), SCRCP. ¹

On May 31, 2007, Cricket Cove amended its complaint in the action against Horry County to add as defendants the individual members of Council in their official capacities, to seek a declaration that the application of pending ordinance 107-05 was invalid, and to seek an injunction preventing Council members from discussing draft ordinances outside the public forum.

In the present action, on October 4, 2007, the circuit court granted the motion to dismiss pursuant to Rule 12(b)(8) and stated that it was unnecessary to address the 12(b)(6) motion. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court properly apply Rule 12(b)(8), SCRCP, to the present action?

2. Did the circuit court err in failing to include in its order a conclusion that the present action should be consolidated with the first action?

3. Did the circuit court err in failing to include in its order a conclusion that Cricket Cove should be allowed to amend its complaint in the first action to include the causes of action alleged in the present action?

4. Should the circuit court's decision be affirmed on the additional sustaining ground that the complaint could have been dismissed pursuant toRule 12(b)(6), SCRCP, for failure to state facts sufficient to constitute a cause of action?

STANDARD OF REVIEW

The appellate court applies the same standard of review as the circuit court in scrutinizing the application of Rule 12(b)(8), SCRCP. Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct.App.2009). A defendant may seek dismissal of an action pursuant to Rule 12(b)(8) when another action is pending between the same parties for the same claim.

In reviewing the dismissal of an action pursuant to Rule 12(b)(6), SCRCP, the appellate court applies the same standard of review as the trial court. Doe v. Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007). In considering a motion to dismiss a complaint based on a failure to state facts sufficient to constitute a cause of action, the trial court must base its ruling solely on allegations set forth in the complaint. Id.

If the facts and inferences drawn from the facts alleged in the complaint, viewed in the light most favorable to the plaintiff, would entitle the plaintiff to relief on any theory, then the grant of a motion to dismiss for failure to state a claim is improper. Brazell v. Windsor, 384 S.C. 512, 515, 682 S.E.2d 824, 826 (2009). In deciding whether the trial court properly granted the motion to dismiss, the appellate court must consider whether the complaint, viewed in the light most favorable to the plaintiff, states any valid claim for relief. Id. "The trial court and this [C]ourt on appeal must presume all well pled facts to be true." Morrow Crane Co. v. T.R. Tucker Constr. Co., 296 S.C. 427, 429, 373 S.E.2d 701, 702 (Ct.App.1988). "[P]leadings in a case should be construed liberally so that substantial justice is done between the parties. Further, a judgment on the pleadings is...