Dockside Ass'n, Inc. v. Detyens, Simmons and Carlisle

• Decision Date: 25 February 1985
• Docket Number: No. 0463,0463
• Citation: 330 S.E.2d 537,285 S.C. 565
• Court: South Carolina Court of Appeals
• Parties: DOCKSIDE ASSOCIATION, INC., Robert L. Modder and Jo Ann Morros, on Behalf of themselves and all other Dockside homeowners, Respondents, v. DETYENS, SIMMONS AND CARLISLE, William J. Detyens, a/k/a W.J. Detyens; Marjorie Greene Detyens; Harold Simmons; Virgie Crosby Simmons; William A. Carlisle, a/k/a W.A. Carlisle; Ruth Davidson Carlisle; McDevitt & Street, Inc.; Lyles, Bissett, Carlisle & Wolff, Inc.; The Citizens & Southern National Bank of South Carolina; Detyens Shipyards, Inc.; Housing Investment Corporation of Florida; First Federal Savings & Loan Association; Home Federal Savings & Loan Association; and Associated Investments, Inc., Defendants, of whom Appeal of McDEVITT & STREET, INC. and C.E. Maguire, Inc. Successor in Interest to the Defendant, Lyles, Bissett, Carlisle & Wolff, Inc. . Heard

Page 537

330 S.E.2d 537

285 S.C. 565

DOCKSIDE ASSOCIATION, INC., Robert L. Modder and Jo Ann Morros, on Behalf of themselves and all other Dockside homeowners, Respondents, v. DETYENS, SIMMONS AND CARLISLE, William J. Detyens, a/k/a W.J. Detyens; Marjorie Greene Detyens; Harold Simmons Virgie Crosby Simmons; William A. Carlisle, a/k/a W.A Carlisle; Ruth Davidson Carlisle; McDevitt & Street, Inc. Lyles, Bissett, Carlisle & Wolff, Inc.; The Citizens &amp Southern National Bank of South Carolina; Detyens Shipyards, Inc.; Housing Investment Corporation of Florida; First Federal Savings & Loan Association; Home Federal Savings & Loan Association; and Associated Investments, Inc., Defendants, of whom Appeal of McDEVITT & STREET, INC. and C.E. Maguire, Inc. Successor in Interest to the Defendant, Lyles, Bissett, Carlisle & Wolff, Inc.

No. 0463.

Court of Appeals of South Carolina.

Heard Feb. 25, 1985.

Decided May 13, 1985.

Morris D. Rosen, of Rosen, Oberman & Rosen; and William H. Grimball, of Grimball, Cabaniss, Vaughan & Robinson, Charleston, for appellants.

James L. Bell, of Bell & Perry, Columbia, for respondents.

GOOLSBY, Judge:

This appeal is from an order overruling the demurrers of the appellants McDevitt & Street, Inc., and C.E. Maguire, Inc., to the complaint of the respondents Dockside Association, Inc., Robert L. Modder, and Jo Ann Morros. The issues raised by the appellants relate to standing, misjoinder, class actions, and sufficiency of pleadings. We reverse.

Dockside is a condominium development located in Charleston, South Carolina. It consists of an 18-story tower building and three townhouse buildings. These four buildings contain 142 condominium apartments. The development also contains common elements such as roofs, walls, elevators, balconies and the like.

McDevitt & Street was the prime contractor for the condominium project. Maguire is the successor in interest to Lyles, Bissett, Carlisle & Wolff, Inc., who provided architectural services for the development.

Dockside Association is a nonprofit corporation charged with the duty of managing and maintaining Dockside's common elements. Modder and Morros each own a condominium apartment. They are also, respectively, Vice President and President of Dockside Association.

The complaint alleges nine causes of action. Dockside Association is the plaintiff in the first seven causes of action, and Modder and Morros are the plaintiffs in the last two causes of action. Dockside Association seeks damages on its own behalf and on behalf of Dockside's "individual homeowners" for injuries allegedly sustained by the condominium's common elements, and Modder and Morros seek damages on behalf of themselves individually and all Dockside "homeowners" for injuries sustained by apartment interiors not considered part of the common elements.

The complaint's first cause of action alleges a breach of fiduciary duties; the second, fraudulent representations; the third, breach of express and implied warranties of fitness and habitability; the fourth, conspiracy to conceal latent defects; the fifth, breach of express warranties of workmanship; the sixth, negligent inspection; the seventh, unfair trade practices; the eighth, breach of express and implied warranties of fitness and habitability; and the ninth, unfair trade practices. Neither the fourth nor the fifth cause of action applies to the appellants.

The appellants each demurred on several grounds to all causes of action alleged against them in the complaint. Except as to the ninth cause of action, the circuit court overruled their demurrers.

The appellants first contend that Dockside Association lacks standing to maintain the first, second, third, sixth, and seventh causes of action. We agree.

No justiciable controversy is presented unless the plaintiff has standing to maintain the action. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). To have standing, a party must have an interest in the subject matter of the action. Furman University v. Livingston, 244 S.C. 200, 136 S.E.2d 254 (1964). In South Carolina, a party must also be the "real party in interest." S.C.Code of Laws Section 15-5-70 (1976); Richbourg's Shoppers Fair, Inc. v. Stone, 249 S.C. 278, 153 S.E.2d 895 (1967); 59 Am.Jur.2d Parties Section 38 at 394 (1971); see S.C.R.CIV.P. 17(a) and 86. "A real party in interest ... ordinarily is one who has a real, actual, material, or substantial interest in the subject matter of the action, as distinguished from one who has only a nominal, formal, or technical interest in, or connection with, the action." 67A C.J.S. Parties Section 18 at 673-74 (1978); 59 Am.Jur.2d Parties Section 40 at 397 (1971).

The complaint contains no allegation that Dockside Association owns any property at Dockside, including Dockside's common elements. Although Dockside Association appears to have an interest in the subject matter of the action, particularly as it affects Dockside's common elements, its interest is not the real interest. The real interest belongs to the apartment owners because they alone own the common elements of the property. Id. Section 27-31-60.

Because Dockside Association is not the real party in interest, since it apparently owns none of the common elements, and no statute exists in this State expressly authorizing a co-owner's organization to maintain an action in its own name for the benefit of the co-owners of a condominium, Dockside Association lacks standing to sue the appellants. Deal v. 999 Lakeshore Assn., 94 Nev. 301, 579 P.2d 775 (1978); Reibel v. Rolling Green Condominiums A, Inc., 311 So.2d 156, 72 A.L.R.3d 310 (Fla.App.1975); Friendly Village Community Assn., Inc., No. IV v. Silva & Hill Construction Co., 31 Cal.App.3d 220, 107 Cal.Rptr. 123, 69 A.L.R.3d 1142 (1973); Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla.App.1970); see Annot., 72 A.L.R.3d 314 (1976); Annot., 69 A.L.R.3d 1148 (1976); cf. Towerhill Condominium Assn. v. American Condominium Homes, Inc., 66 Or.App. 342, 675 P.2d 1051 (1984) (where statute gave a condominium association standing to sue); accord, Starfish Condominium Assn. v. Yorkridge Service Corp., 295 Md. 693, 458 A.2d 805 (1983); Brickyard Homeowners' Assn. Management Committee v. Gibbons Realty, 668 P.2d 535 (Utah 1983); Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla.App.1976), appeal dismissed, 354 So.2d 978 (1977); Wittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463 (Fla.App.1975), cert. denied, 327 So.2d 31 (Fla.1976); Del Mar Beach Club Owners Assn., Inc. v. Imperial Contracting Co., Inc., 123 Cal.App.3d 898, 176 Cal.Rptr. 886, 25 A.L.R. 4th 336 (1981) (where ownership interest provided owners association standing to sue); Residents of Beverly Glen, Inc. v. City of Los Angeles, 34 Cal.App.3d 117, 109 Cal.Rptr. 724 (1973) (where subject matter involved matter of public interest, nonprofit corporation, whose members consisted of area residents, had standing to sue municipality, city council, planning commission, and private corporation); but see 1000 Grandview Assn., Inc. v. Mt. Washington Associates, 290 Pa.Super. 365, 434 A.2d 796 (1981) (where federal principles regarding an association's standing to sue enunciated in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), a case involving an action against a town and zoning board, employed as basis for holding condominiums association possessed standing to sue developers).

We are aware of Roundtree Villas Assn., Inc. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984), in which our Supreme Court held that a condominium association had standing to maintain a cause of action relating to the condominium's common elements but did not have standing to maintain an action relating to condominium property not encompassed in the term "common elements." See S.C.Code of Laws Section 27-31-20(f) (1976) (Cum.Supp.1984). In Roundtree, however, the association "own[ed] the common elements." 321 S.E.2d at 49. Here, the common elements, as we infer from the complaint, are owned by the apartment owners and not the condominium association. The case, then, supports the appellants and not Dockside Association.

The appellants next contend that the circuit court erred in overruling their demurrers to all causes of action on the ground the complaint improperly united the several causes of action brought by Dockside Association, Modder, and Morros.

In South Carolina, as in many other jurisdictions, several causes of action may be united in the same complaint when they all arise out of the same transaction or transactions connected with the same subject of the action; however, the causes of action so united must affect all the parties. S.C.Code of Laws Section 15-15-10 (1976); Sons v. Federal Land Bank of Columbia, 170 S.C. 548, 171 S.E. 35 (1933); Ryder v. Jefferson Hotel Co., 121 S.C. 72, 113 S.E. 474, 25 A.L.R. 739 (1922); 1 C.J.S. Actions Section 96 at 1270 (1936); see S.C.R.CIV.P. 18(a) and 86. If the causes of action are distinct and separate, they cannot be joined even though they may arise out of the same transaction or relate to the same subject matter. Hair v. Carolina Portland Cement Co., 138 S.C. 472, 136 S.E. 743 (1927); 1 Am.Jur.2d Actions Section 123 at 644 (1962).

The complaint in the instant case unites the seven causes of action brought by Dockside Association with the two causes of action brought by Modder and Morros. As we noted, Dockside Association bases its claims on the damages allegedly sustained by the condominium's common elements. Modder and Morros, on the other hand, base their respective claims on the damages allegedly sustained by areas in their individual apartments not included within the condominium's common elements. The complaint contains no allegation that Dockside Association owns a portion of either Modder's apartment or Morros's apartment, that Modder owns a portion of Morros's apartment, or...