Dixon v. Kershaw Cnty. (Ex parte DeMarco)

• Decision Date: 18 April 2012
• Docket Number: Unpublished Opinion No. 2012-UP-231
• Parties: Ex Parte: Ralph DeMarco, Appellant, In re: Audrey S. Dixon, William H. Stokes III, and Starling Odell Stokes Sr., Respondents, v. Kershaw County, Respondent.
• Court: South Carolina Court of Appeals

Ex Parte: Ralph DeMarco, Appellant,In re: Audrey S. Dixon, William H. Stokes III, and Starling Odell Stokes Sr., Respondents,

v.Kershaw County, Respondent.

Unpublished Opinion No. 2012-UP-231

THE STATE OF SOUTH CAROLINA In The Court of Appeals

Heard: February 16, 2012

Filed: April 18, 2012

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.

Appeal From Kershaw County

Alison Renee Lee, Circuit Court Judge

AFFIRMED

Patrick D. Partin, of Camden, for Appellant.

Jonathan M. Robinson, J. Kennedy DuBose Jr., Vincent A. Sheheen, and William B. Cox Jr.; all of Camden, for Respondents.

PER CURIAM: This appeal arises out of an order denying Appellant Ralph DeMarco's motion to intervene following a bench trial in which DeMarco participated fully. Respondents Audrey S. Dixon, William H. Stokes III, and Starling Odell Stokes Sr. initiated this action against Respondent Kershaw County to close Bill Stokes Road pursuant to section 57-9-10 of the South Carolina Code (2006). On appeal, DeMarco argues: (1) his property abuts Bill Stokes Road; (2) he has a practical and substantial interest in this lawsuit; (3) he earned a prescriptive easement over Bill Stokes Road; (4) the trial court erred in closing the road where cigarette butts and beer cans pose a fire and safety hazard; (5) Bill Stokes Road constitutes an easement appurtenant to his property; and (6) the trial court erred in admitting hearsay testimony. We affirm.

1. As to DeMarco's argument that the trial court erred in denying his motion to intervene pursuant to Rule 24, SCRCP, because he is a landowner with a practical and substantial interest in the subject matter of the road closing, we find the issue unpreserved for appellate review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (finding an issue must have been raised to and ruled upon by the trial court to be preserved for appellate review); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (noting a party must file a Rule 59(e), SCRCP motion "when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review"); In re Horry Cnty. State Bank, 361 S.C. 503, 507, 604 S.E.2d 723, 725 (Ct. App. 2004) (noting the standard of review for a Rule 24(a)(2) motion to intervene is whether the trial court abused its discretion in granting or denying the motion); S.C. Code Ann. § 57-9-10 (2006) (allowing "[a]ny interested person" to petition for the abandonment or closure of any public road and requiring notice of the petition be sent to all abutting property owners whose property would be affected by any change); Hoogenboom v. City of Beaufort, 315 S.C. 306, 319 n.6, 433 S.E.2d 875, 884 n.6 (Ct. App. 1992) ("The statute . . . allows 'any interested person' to petition a court to close or abandon a street."); Rule 24(a)(2), SCRCP ("Upon timely application[,] anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."). The trial court erred in deciding DeMarco's motion to intervene by utilizing only an abutting landowner analysis. Pursuant to section 57-9-10, Hoogenboom, and Rule 24, SCRCP, the question of whether DeMarco was an abutting landowner was not the sole dispositive question in determining whether to grant DeMarco's motion to intervene; rather, the court also should have considered whether DeMarco was an interested party to the action. However, the trial court's sole reason for denying DeMarco's motion to intervene was based on its finding that DeMarco was not an abutting landowner. While the issue may have been raised, the trial court never ruled on whether DeMarco was entitled to intervene because he was an interested party as a landowner with a practical and substantial interest in the subject matter of the action. Further, DeMarco did not file a Rule 59(e), SCRCP, motion to alter or amend. Therefore, the issue is unpreserved for appellate review. See Nicholson v. Nicholson, 378 S.C. 523, 537, 663 S.E.2d 74, 81-82 (Ct. App. 2008) (stating an issue must have been raised to and ruled upon by the trial court to be preserved on appeal, and if the trial court does not rule on an issue and the appellant does not raise it in a Rule 59(e), SCRCP motion, it is unpreserved); id. at 537-38, 663 S.E.2d at 82 (noting that without an initial ruling by the trial court, an appellate court is unable to evaluate whether the trial court committed error).

2. As to DeMarco's argument that Bill Stokes Road is the northern boundary of his property, we find evidence in the record to support the trial court's determination that DeMarco's property does not abut Bill Stokes Road. See Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976) ("In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge's findings.").

3. As to DeMarco's arguments that he is entitled to a finding of a written or recorded easement, an easement by prescription, or an easement appurtenant, we find these issues are not preserved for appellate...