Skydive Myrtle Beach v. Horry County

The Supreme Court of South Carolina
Skydive Myrtle Beach, Inc., Petitioner,
v.
Horry County, Respondent.
Appellate Case No. 2018-001910
ORDER
The petition for rehearing is denied. The attached opinion is substituted for the
previous opinion, which is withdrawn. The only change we make is an addition to
footnote one.
s/ Donald W. Beatty C.J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
Columbia, South Carolina
January 22, 2020
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Skydive Myrtle Beach, Inc., Petitioner,
v.
Horry County, Respondent.
Appellate Case No. 2018-001910
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Horry County
Larry B. Hyman Jr., Circuit Court Judge,
Opinion No. 27930
Heard September 24, 2019 – Re-Filed January 22, 2020
REVERSED
Robert Bratton Varnado, Brown & Varnado, LLC, of Mt.
Pleasant, for Petitioner.
Michael Warner Battle, Battle Law Firm, LLC, of
Conway, for Respondent.
JUSTICE FEW: Horry County filed an action in magistrates court to eject
Skydive Myrtle Beach, Inc., from a hangar at the Grand Strand Airport in North
Myrtle Beach, South Carolina. The magistrates court found Skydive did not have
any right to occupy the hangar, and ejected Skydive. The circuit court affirmed.
Skydive appealed to the court of appeals, which dismissed the appeal on the ground
it was moot. We granted Skydive's petition for a writ of certiorari. We reverse the
court of appeals because we hold the appeal is not moot. On the merits, we agree
with the magistrates court and the circuit court that Skydive has no right to occupy
the hangar. Thus, we affirm the circuit court.
I. Facts and Procedural History
Horry County owns Grand Strand Airport. Until 2013, the County leased the airport
to Grand Strand Aviation, which operated under the name Ramp 66. On May 10,
2012, Ramp 66 entered into an agreement with Skydive allowing Skydive to use "a
minimum of" 2,500 square feet of what is commonly called the "bird hangar" to
operate its skydiving business. The agreement provided, "This agreement remains
in effect through Grand Strand Aviation's lease with Horry County Department of
Airports through July 2020 unless both parties agree to any changes in writing."
Horry County terminated its lease with Ramp 66 in August 2013 and began its own
management of the airport. On September 13, 2013, Horry County and Skydive
entered into a new agreement entitled "Space Use Permit." The new agreement was
designed to allow Skydive to continue operations at the bird hangar while it
negotiated a longer-term lease directly with the County. The Space Use Permit
granted Skydive the right to "occupy and use" a much larger portion of the bird
hangar—6,800 square feet—than Skydive occupied under the May 2012 agreement.
It also granted Skydive the right to use the hangar at night, a right Skydive did not
have under the May 2012 agreement. The Space Use Permit stated "it shall continue
in force and effect until January 31, 2014," and "either party may terminate [it] for
any reason by giving at least thirty days written notice to the other party."
Skydive continued to occupy the bird hangar and to operate its skydiving business
after January 31, but it did not enter into a new lease. On February 19, Horry County
wrote Skydive listing numerous safety-related concerns about Skydive's operations.
The County's letter advised Skydive the Space Use Permit had expired and "you are
currently occupying County property without any right or authorization." The letter
explained that in light of what the County perceived to be Skydive's poor safety
record and other concerns, "Horry County is unwilling to offer Skydive a leasehold
interest." Instead, the letter offered "a new, short-term Space Use Permit" that would
allow Skydive to continue occupying the hangar until July 31, 2014. This new Space
Use Permit would have imposed additional safety requirements that were not in the
original Space Use Permit. The letter stated that if Skydive did not sign the new
Space Use Permit within seventy-two hours, "you will need to vacate the premises
immediately." Skydive did not respond to the February 19 letter.
On February 28, 2014, Skydive filed a lawsuit in circuit court against Horry County,
Horry County Department of Airports, and several individually named County
employees. Skydive alleged the defendants improperly conspired to remove it from
the bird hangar, breached the May 2012 agreement, and otherwise tortiously
interfered with Skydive's business. The nature and progress of that lawsuit—which
is still pending—are discussed in Skydive Myrtle Beach, Inc. v. Horry County, 426
S.C. 175, 826 S.E.2d 585 (2019).
Horry County filed this ejectment action on June 5, 2014. The magistrates court
entered an order ejecting Skydive from the bird hangar, and Skydive appealed to the
circuit court. The magistrates court allowed Skydive to remain in the bird hangar—
pending the circuit court's decision on appeal—by making a monthly bond payment
equal to the rent Skydive paid under the Space Use Permit. The circuit court
affirmed the ejectment order. Skydive made a motion for a stay of the order, which
the circuit court denied.
Skydive appealed the circuit court order to the court of appeals on August 24, 2015.
Three years later, the court of appeals dismissed the appeal as moot. Skydive Myrtle
Beach, Inc. v. Horry Cty., 424 S.C. 298, 303, 818 S.E.2d 224, 227 (Ct. App. 2018).
We granted Skydive's petition for a writ of certiorari to review the court of appeals'
decision.
II. Mootness
Skydive argues that when the Space Use Permit expired on January 31, 2014,
Skydive's right to occupy the bird hangar was once again governed by the May 2012
agreement. Horry County, of course, disagrees. However, if the May 2012
agreement does control, Skydive retains the right to occupy the bird hangar "through
July 2020." If the court of appeals had agreed with Skydive—or if this Court were
now to agree—we could order that Skydive may move back into the bird hangar
"through July 2020."
A case is moot "when judgment, if rendered, will have no practical legal effect upon
existing controversy." Mathis v. S.C. State Highway Dep't, 260 S.C. 344, 346, 195
S.E.2d 713, 715 (1973). This case is not moot because a decision to reverse the
ejectment order could have the practical effect of putting Skydive back in possession
of the bird hangar.
In support of its decision to dismiss the appeal as moot, the court of appeals relied
on Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459 (1951). In Berry, a magistrates court
issued an order of ejectment against a residential tenant. 220 S.C. at 87, 66 S.E.2d
at 459. On appeal to this Court, the tenants admitted they voluntarily vacated the
premises during the appeal and that they had delivered possession of the residence
to the landlord. 220 S.C. at 87, 66 S.E.2d at 460. We stated, "In their brief is the
statement that since the trial before the magistrate they have vacated the premises
and delivered possession to the landlord. Under these circumstances, the issue,
which was the right to possession of the premises, has become moot, and the appeal
will not be considered." Id. The key fact in Berry that made the tenant's appeal moot
was the tenant vacated the premises voluntarily.
Skydive did not vacate the bird hangar voluntarily. After the circuit court affirmed
the ejectment order and denied Skydive's request for a stay of the order, ten Horry
County sheriff's deputies arrived at the hangar to ensure Skydive vacated the
premises by the court-ordered deadline. In contrast to the Berry tenant's voluntary
relinquishment of possession, Skydive repeatedly contested all rulings by the courts
in an obvious effort to remain in the bird hangar. At oral argument before this Court,
counsel for Skydive confirmed his client's intent to resume possession if the
magistrates court's ejectment order is reversed.
In its explanation of its dismissal on the grounds of mootness, the court of appeals
stated, "Skydive has not possessed the property in almost three years." 424 S.C. at
303, 818 S.E.2d at 227. The court gave no reason the three-year delay affects
whether the appeal is moot. We find nothing in this record to indicate Skydive
unnecessarily delayed the resolution of this appeal. While it is unfortunate the court
of appeals took three years to resolve the appeal, as we have explained, the court still
has the power to grant the relief Skydive seeks. Therefore, the delay in this case has
nothing to do with whether the appeal is moot.
III. Skydive's Right to Occupy the Hangar
Having determined the court of appeals should not have dismissed the appeal, we
turn to the merits.1 Skydive's argument depends on the continued validity of the
1
Initially, the parties briefed to this Court only the issue of mootness. Though our
record contains the parties' briefs to the court of appeals on the merits, after oral
argument, we gave both sides the opportunity to brief the merits directly to this
Court. We later received supplemental briefs from Skydive and Horry County
May 2012 agreement after the execution of the Space Use Permit. Under the terms
of the May 2012 agreement, Skydive contends, it remains entitled to occupy the bird
hangar through July 2020. The May 2012 agreement is the only basis on which
Skydive claims it has any right to occupy the hangar.
We agree with the magistrates court and the circuit court that the May 2012
agreement is no longer in effect. The Space Use Permit provides in clear and
unambiguous terms it "constitutes the complete agreement of the parties with respect
to" occupancy of the hangar and "supersedes all previous agreements." In response
to this point, Skydive argues the May 2012 agreement provides that it "remains in
effect through Grand Strand Aviation's lease with Horry County Department of
Airports through July 2020 unless both parties agree to any changes in writing."
When Horry County terminated its agreement with Grand Strand Aviation/Ramp 66,
however, Horry County became the party with the right to "agree in writing" to
change the relationship. It did precisely that in executing the Space Use Permit,
which according to its clear and unambiguous terms expired on January 31, 2014.
When the Space Use Permit expired, Skydive retained no right to continue to occupy
the hangar.
IV. Conclusion
The appeal is not moot because Skydive did not voluntarily vacate the bird hangar,
and a ruling in favor of Skydive could put it back in possession. However, the Space
Use Permit superseded the May 2012 agreement, and the Space Use Permit is
expired. Skydive has no right to occupy the bird hangar. We reverse the court of
appeals and affirm the circuit court.
addressing the merits of whether Skydive retains any right to occupy the bird hangar.
Skydive also raised other issues to the court of appeals. To the extent those issues
have not been addressed by the court of appeals or this Court, we find it unnecessary
to do so because our resolution of the merits ends this lawsuit. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (An "appellate court need not address remaining issues when disposition of
prior issue is dispositive"). However, Skydive points out it raised several of those
other issues on remand from our ruling in Skydive's lawsuit against Horry County
and others. Unless we specifically addressed the issue in this opinion, we do not
intend our ruling in this case to impact the other issues.
REVERSED.
BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.