Staubes v. City of Folly Beach
Decision Date | 27 April 1998 |
Docket Number | No. 2834.,2834. |
Court | South Carolina Court of Appeals |
Parties | Vernon STAUBES, Appellant, v. CITY OF FOLLY BEACH, City of Folly Beach Zoning Board of Adjustments, Tommy Bolus, Harvey Wittschen, Cindy Newman, Mrs. Schwacke, and Betty Minchew, of whom City of Folly Beach is, Respondent. |
Timothy A. Domin, of Clawson & Staubes, Charleston, for Appellant.
Thomas J. Wills, IV, and James E. Reeves, both of Barnwell, Whaley, Patterson & Helms, Charleston, for Respondent.
Vernon Staubes brought this action to recover damages he allegedly sustained due to the City of Folly Beach's refusal to grant him a permit to repair his duplex. The trial court granted the City's motion for summary judgment holding the City's actions did not (1) result in a taking of Staubes's property; (2) violate Staubes's right to due process; or (3) violate 42 U.S.C. § 1983. Additionally, the court found Staubes's negligence action was barred by the South Carolina Tort Claims Act.1 We affirm in part, reverse in part, and remand.2
The background of this case is reported in Staubes v. City of Folly Beach, Op. No. 94-UP-138 (S.C. Ct.App. filed April 27, 1994), as follows:
On appeal, Staubes contended the trial court erred in affirming the Board's decision to uphold the revocation of his building permit. This Court agreed and reversed, finding the evidence did not support the Board's finding the cost of repairs exceeded fifty percent of the building's market value. Staubes, supra. The Court noted only Staubes submitted evidence of the cost of repairs. He submitted three bids, which were all less than fifty percent of the building's pre-Hugo market value. The Supreme Court dismissed the writ of certiorari as improvidently granted. Staubes v. City of Folly Beach, Op. No. 95-MO-209 (S.C. Sup.Ct. filed June 14, 1995).
After the Supreme Court dismissed the petition for certiorari, Staubes brought the present action against the City alleging the City's actions prevented him from performing any repairs on the property, leaving the property uninhabitable and unrentable during the appeal process. He averred the City's conduct deprived him of all beneficial use of the property without just compensation. In addition, Staubes claimed the City's action left the building open to the elements causing further damage to the structure. The trial court granted summary judgment to the City.
Summary judgment is appropriate 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. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Rule 56(c), SCRCP. See also Standard Fire Ins. Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990)
(motion for summary judgment shall be granted if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). See also Bates v. City of Columbia, 301 S.C. 320, 391 S.E.2d 733 (Ct.App.1990)(in determining whether to grant summary judgment, pleadings and documents on file must be liberally construed in favor of nonmoving party who must be given benefit of all favorable inferences that might reasonably be drawn from record). If triable issues exist, those issues must go to the jury. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991).
Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Tupper, supra; Koester, supra.
However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Tupper, supra; Baugus, supra.
Staubes argues the trial court erred in granting the City's motion for summary judgment because the actions of the City resulted in an unconstitutional temporary taking. We disagree.
The City asserts the South Carolina Supreme Court's decision in Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871 (1940), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985),
is controlling in the present case. Gasque signed a contract with the Gulf Refining Company to build a filling station upon his lot and lease the property, with the building, to Gulf for a monthly rental fee. He then applied for a permit to build the filling station. The Town Council refused to issue the permit. After Gasque obtained a writ of mandamus compelling issuance of the permit, he brought a takings action against the Town for the loss of rent and other damages he sustained due to the rejection of his application. The court found no taking had occurred. The Supreme Court held:
Gasque, 194 S.C. at 22-23, 8 S.E.2d at 874. The linchpin of Gasque is no constitutional taking because there was no deprivation of a "permanent nature."
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