WILLIAMSBURG RURAL v. WILLIAMSBURG, No. 3707.

CourtCourt of Appeals of South Carolina
Writing for the CourtHEARN, C.J.
Citation593 S.E.2d 154,357 S.C. 251
PartiesWILLIAMSBURG RURAL WATER AND SEWER COMPANY, INC., Appellant, v. WILLIAMSBURG COUNTY WATER AND SEWER AUTHORITY, a Body Politic, County of Williamsburg, A Body Politic, and Town of Kingstree, a Body Politic, Respondents.
Decision Date08 December 2003
Docket NumberNo. 3707.

357 S.C. 251
593 S.E.2d 154

WILLIAMSBURG RURAL WATER AND SEWER COMPANY, INC., Appellant,
v.
WILLIAMSBURG COUNTY WATER AND SEWER AUTHORITY, a Body Politic, County of Williamsburg, A Body Politic, and Town of Kingstree, a Body Politic, Respondents

No. 3707.

Court of Appeals of South Carolina.

Heard June 11, 2003.

Decided December 8, 2003.

Rehearing Denied March 4, 2004.


357 S.C. 254
Larry G. Reddeck, of Lake City; for Appellant

Ernest J. Jarrett, W.E. Jenkinson, III, and Jennifer R. Kellahan, all of Kingstree; for Respondents.

HEARN, C.J.:

The central issue in this case is whether a county's constructive approval of a water and sewer service proposal submitted by a non-profit corporation under former S.C.Code Ann. § 33-35-90 grants the non-profit corporation exclusive service rights such that the county may not give franchise rights to competing providers within the same service areas designated in the proposal. Williamsburg Rural Water and Sewer Company, Inc. (Williamsburg Water) commenced this action against Williamsburg County, Williamsburg County Water and Sewer Authority, and the Town of Kingstree (collectively, the County)1 seeking: (1) a determination that Williamsburg Water possessed an exclusive right to provide water and sewer service within designated unincorporated areas in Williamsburg County, (2) damages in tort based on the County's interference with that right, and (3) injunctive relief. The circuit court granted summary judgment to the County, finding that Williamsburg Water did not possess an exclusive

357 S.C. 255
service right and that Williamsburg Water's cause of action in tort was barred by the South Carolina Tort Claims Act and the statute of limitations. Williamsburg Water appeals. We affirm

FACTS/PROCEDURAL HISTORY

The relevant facts of this case are largely undisputed and are gathered from a timeline of events to which the parties stipulated. On January 16, 1995, W.N. Kellahan, an organizer of Williamsburg Water, sent a letter to Elwood Gerald, the County's director of rural and community development, notifying the County of Williamsburg Water's intention to provide service to certain unincorporated areas of Williamsburg County pursuant to S.C.Code Ann. § 33-35-90 (1990).2 Section 33-35-90 sets forth the statutory mechanism for a non-profit corporation to provide water and sewer services within the geographical areas designated in its articles of incorporation, provided the corporation notifies the county of the nature of the services to be provided and receives the county's consent.

In March and again in April of 1995, Kellahan appeared before the Williamsburg County Council on behalf of Williamsburg Water to reiterate Williamsburg Water's intent to provide services to the designated areas. Kellahan sent a copy of Williamsburg Water's master plan to the council and to Gerald. In May of 1995, Williamsburg Water filed its articles of incorporation with the Secretary of State. Shortly thereafter, Williamsburg Water began applying for loans and federal grants to fund its operation.

During this same time period, the county council began considering enacting an ordinance that would allow the County to expand its own water and sewer services into the same unincorporated areas that Williamsburg Water intended to service. The proposed ordinance allowed the County to grant franchises to organizations that submitted applications to the County seeking permission to provide service within these same areas.

357 S.C. 256
The first of three public readings of the proposed franchise ordinance was held on March 6, 1995. On August 7 of that year, the ordinance was adopted. In May of 1998, the County applied for federal funding to construct its water system. On November 3, 1998, the County solicited bids for water and sewer services to the Industrial Park area, which is located within the service area designated in Williamsburg Water's proposal. The County awarded the bid to Tom Brigman Contractor's, Inc., of Newberry, on November 9, 1998

In response, Williamsburg Water commenced this action against the County on December 4, 1998, claiming that Williamsburg Water possessed an exclusive right to provide services to the unincorporated areas specified in its proposal, including the area where the Industrial Park was located. In essence, Williamsburg Water claimed that its proposal was approved by the County by virtue of the County's failure to notify Williamsburg Water to the contrary in accordance with section 33-35-90. Williamsburg Water further claimed the County intentionally interfered with and/or threatened to interfere with Williamsburg Water's ability to obtain federal funding and to provide service within the designated areas. The complaint alleged that as a result of the County's grossly negligent actions, Williamsburg Water suffered injury and damages. Finally, Williamsburg Water sought a declaration that it was exempt from the County's franchise ordinance and that it possessed an exclusive right to service the unincorporated areas designated in its proposal.

Williamsburg Water and the County filed cross motions for summary judgment. The circuit court granted summary judgment to the County on Williamsburg Water's first cause of action, ruling that Williamsburg Water had the right, but not the exclusive right, to provide water and sewer service to the designated areas. The circuit court also granted summary judgment to the County on Williamsburg Water's action in tort, finding the County was immune from liability under the South Carolina Tort Claims Act and that the statute of limitations had run. However, the circuit court found there was a genuine issue of material fact as to whether Williamsburg Water was exempt from the County's franchise ordinance. This appeal follows.

357 S.C. 257
STANDARD OF REVIEW

"When reviewing the grant of summary judgment, the appellate court applies the same standard applied by the trial court pursuant to Rule 56(c), SCRCP." Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Id.; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 497, 392 S.E.2d 789, 792 (1990). "In determining whether any triable issue of fact exists, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party." Worsley Cos. v. Town of Mount Pleasant, 339 S.C. 51, 55, 528 S.E.2d 657, 659 (2000).

LAW/ANALYSIS

I. Exclusive Service Rights

The circuit court found that the notices contained in Williamsburg Water's proposal dated January 16, 1995, were both proper and adequate to comply with section 33-35-90. Moreover, the circuit court held Williamsburg Water possessed the right, but not the exclusive right, to provide service within the disputed area. The County did not appeal either of these findings; therefore, it is the law of this case that Williamsburg Water possesses a right to provide water and sewer services in Williamsburg County. See Bakala v. Bakala, 352 S.C. 612, 576 S.E.2d 156 (2003); Charleston Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 525 S.E.2d 869 (2000) (stating an unappealed ruling is the law of the case). The question before this court is whether that right is an exclusive service right, such that the County is prohibited from awarding franchises within the areas identified in Williamsburg Water's proposal.

357 S.C. 258
The circuit court's order does not indicate the basis for its finding that Williamsburg Water possesses a right to provide service in the county. We presume the circuit court found this right to be the product of the County's failure to comply with the mandatory notice provisions of section 33-35-90, for there is no other explanation in the order for the creation of this right. It is the law of this case that Williamsburg Water possesses a right of some degree; thus, determining the source of that right is not necessary to its existence. However, we believe it is necessary for a complete understanding of the controversy in this case to briefly set forth our view regarding the County's failure to comply with section 33-35-90, which must be the foundation for the circuit court's ruling.

Section 33-35-90 (1990) stated in relevant part:

[P]rior to providing any of the services authorized in this section, nonprofit corporations or groups intending to organize such corporations shall first notify the governing body, of the county or municipality in which the services are to be provided, of their intentions and the nature of such services. The governing body shall, from the date of such notification, have a period of ninety days in which to approve the request to provide such services or inform the persons requesting permission to provide such services that the governing body intends to provide for such matters as a public function of government. Any such notification of intent by the governing body shall include a detailed description of the area to be served, the services to be provided and the time schedule under which such services will be available from the county or municipality.

(Emphasis added).

"The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible." Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 62, 504 S.E.2d 117, 121 (1998). "Unless there is something in a statute requiring a different interpretation, the words used in the...

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4 practice notes
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    • United States
    • United States State Supreme Court of South Carolina
    • 24 de maio de 2004
    ...the cross-collateralized loan agreement will harm ratepayers in the future does not present a justiciable controversy. KPOG II, at 243, 593 S.E.2d at 154 (citing Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983)). Thus, this Court will not ......
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    • United States
    • United States State Supreme Court of South Carolina
    • 6 de fevereiro de 2006
    ...grant of summary judgment to respondents (County).1 Williamsburg Rural Water & Sewer Co., Inc. v. Williamsburg County Water & Sewer Auth., 357 S.C. 251, 593 S.E.2d 154 (Ct.App.2003).2 We reverse the Court of Appeals insofar as it affirmed summary judgment on Company's statutory interpretati......
  • Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Auth., 2007-MO-071
    • United States
    • United States State Supreme Court of South Carolina
    • 17 de dezembro de 2007
    ...The Court of Appeals affirmed this ruling. Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Authority, 357 S.C. 251, 593 S.E.2d 154 (Ct. App. 2003). This Court reversed the grant of summary judgment to County. Williamsburg Rural Water and Sewer Co., Inc. v......
  • Williamsburg Rural Water v. Williamsburg Cnty. Water, 2007-MO-071
    • United States
    • United States State Supreme Court of South Carolina
    • 17 de dezembro de 2007
    ...The Court of Appeals affirmed this ruling. Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Authority, 357 S.C. 251, 593 S.E.2d 154 (Ct. App. 2003). This Court reversed the grant of summary judgment to County. Williamsburg Rural Water and Sewer Co., Inc. v......
4 cases
  • KIAWAH PROPERTY v. Public Service, No. 25827.
    • United States
    • United States State Supreme Court of South Carolina
    • 24 de maio de 2004
    ...the cross-collateralized loan agreement will harm ratepayers in the future does not present a justiciable controversy. KPOG II, at 243, 593 S.E.2d at 154 (citing Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983)). Thus, this Court will not ......
  • Williamsburg Water v. Williamsburg County, No. 26107.
    • United States
    • United States State Supreme Court of South Carolina
    • 6 de fevereiro de 2006
    ...grant of summary judgment to respondents (County).1 Williamsburg Rural Water & Sewer Co., Inc. v. Williamsburg County Water & Sewer Auth., 357 S.C. 251, 593 S.E.2d 154 (Ct.App.2003).2 We reverse the Court of Appeals insofar as it affirmed summary judgment on Company's statutory interpretati......
  • Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Auth., 2007-MO-071
    • United States
    • United States State Supreme Court of South Carolina
    • 17 de dezembro de 2007
    ...The Court of Appeals affirmed this ruling. Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Authority, 357 S.C. 251, 593 S.E.2d 154 (Ct. App. 2003). This Court reversed the grant of summary judgment to County. Williamsburg Rural Water and Sewer Co., Inc. v......
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    • United States
    • United States State Supreme Court of South Carolina
    • 17 de dezembro de 2007
    ...The Court of Appeals affirmed this ruling. Williamsburg Rural Water and Sewer Co., Inc. v. Williamsburg County Water and Sewer Authority, 357 S.C. 251, 593 S.E.2d 154 (Ct. App. 2003). This Court reversed the grant of summary judgment to County. Williamsburg Rural Water and Sewer Co., Inc. v......

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