Simmons v. Mase and Company

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Roosevelt Simmons, Appellant,

v.

Mase and Company, LLC, J. Al Cannon, Jr., Charleston County
Sheriff's Office, Charleston County Revenue Collections
Department, and Harry Long, Respondents.

Appellate Case No. 2014-002575

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2018-UP-333
Heard November 9, 2017 – Filed July 18, 2018

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Edward A. Bertele, of Charleston, for Appellant.

Wendy Raina Johnson Keefer, of Keefer & Keefer, LLC, of
Charleston, for Respondent Mase and Company, LLC;
Christopher Thomas Dorsel, of Senn Legal, LLC, of Charleston,
for Respondents J. Al Cannon, Jr.,
Charleston County Sheriff's Department, Charleston County,
Charleston County Revenue Collections Department, and
Harry Long.

PER CURIAM: Roosevelt Simmons appeals the trial court's order granting
summary judgment against him on his action to set aside a sheriff's sale of his
property to Mase and Company, LLC and other claims against Al Cannon Jr.,
Charleston County Sheriff's Office, Charleston County, Charleston County
Revenue Collections Department, and Harry Long. We affirm in part, reverse in
part, and remand.

1. We agree with the circuit court Simmons should have brought his action
seeking relief from the magistrate's court judgments in the magistrate's court. See
Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992) ("The power to
open, modify or vacate a judgment is possessed solely by the court that rendered
the judgment."). Further, we find Simmons was not entitled to relief from the
magistrate's court judgments because the magistrate possessed jurisdiction to
render them. See Bardoon Properties, NV v. Eidolon Corp., 326 S.C. 166, 169,
485 S.E.2d 371, 372 (1997) ("Subject matter jurisdiction refers to the court's power
to hear and determine cases of the general class to which the proceedings in
question belong."); State ex rel. McLeod v. Crowe, 272 S.C. 41, 46, 249 S.E.2d
772, 775 (1978) ("[M]agisterial courts are vested with judicial power and are,
therefore, a part of the State's uniform judicial system."); S.C. Code Ann. § 22-3-
10(1) (2007) (providing magistrates have concurrent civil jurisdiction "in actions
arising on contracts for the recovery of money only, if the sum claimed does not
exceed seven thousand five hundred dollars"); S.C. Code Ann. § 4-9-30(5)(a)
(Supp. 2017) (providing authority for counties to assess service charges for solid
waste disposal); Skyscraper Corp. v. Cty. of Newberry, 323 S.C. 412, 416, 475
S.E.2d 764, 765-66 (1996) ("Unlike a tax, a service charge or user fee is imposed
on those members of the community who receive a special benefit from the
proceeds of the charge. To be valid, a service charge must be uniform."). We find
the magistrate court had subject matter jurisdiction over the County's contract
action for collection of the Charleston County Solid Waste Recycling and Disposal
User Fee (User Fee). We hold any arguments concerning personal jurisdiction are
conclusory, and thus abandoned. See First Sav. Bank v. McLean, 314 S.C. 361,
363, 444 S.E.2d 513, 514 (1994) (stating appellant was deemed to have abandoned
issue for which he failed to provide any argument or supporting authority).
Simmons's arguments concerning the alleged removal of the User Fee by the
Auditor's Office could have been raised at the magistrate's court proceeding and do
not implicate subject matter jurisdiction. See Smith Cos. of Greenville v. Hayes,
311 S.C. 358, 359, 428 S.E.2d 900, 902 (Ct. App. 1993) ("Relief from judgment
under Rule 60 [of the South Carolina Rules of Civil Procedure (SCRCP)] should
not be considered a substitute for appeal from a final judgment, particularly when
it is clear the party seeking relief could have litigated at trial and on appeal the
claims he now makes by motion."); United States v. Buck, 281 F.3d 1336, 1344
(10th Cir. 2002) ("Appellants make the all-too-common error of thinking that a
court acts without jurisdiction when it makes a mistake. But 'a judgment is not
void merely because it is erroneous.'" (quoting In re Four Seasons Sec. Laws
Litig., 502 F.2d 834, 842 (10th Cir. 1974))).

2. We find the trial court did not err in granting summary judgment on
Simmons's equal protection claim. Simmons's argument the County did not
establish any rational basis for application of the User Fee to him could have been
raised during the proceeding to collect the User Fee in magistrate's court. See
Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109
(1999) ("Under the doctrine of res judicata, '[a] litigant is barred from raising any
issues [that] were adjudicated in the former suit and any issues [that] might have
been raised in the former suit.'" (quoting Hilton Head Ctr. of S.C., Inc. v. Pub.
Serv. Comm'n of S.C., 294 S.C. 9, 11, 362 S.E.2d 176, 177 (1987))); Smith Cos. of
Greenville, 311 S.C. at 359, 428 S.E.2d at 902 ("Relief from judgment under Rule
60[, SCRCP] should not be considered a substitute for appeal from a final
judgment, particularly when it is clear the party seeking relief could have litigated
at trial and on appeal the claims he now makes by motion."). Furthermore, the
County imposed the User Fee on landowners in an attempt to reduce the amount of
trash on private property. Thus, it had a rational basis for the imposition of the fee.
See Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d 917, 920
(2004) ("Under the rational basis test, the requirements of equal protection are
satisfied when: (1) the classification bears a reasonable relation to the legislative
purpose sought to be affected; (2) the members of the class are treated alike under
similar circumstances and conditions; and, (3) the classification rests on some
reasonable basis."). We also find no merit to Simmons's argument the arbitrary
enforcement of the User Fee judgment violated his right to equal protection. See
Town of Iva ex rel. Zoning Adm'r v. Holley, 374 S.C. 537, 541, 649 S.E.2d 108,
111 (Ct. App. 2007) ("One seeking to show discriminatory enforcement in
violation of the Equal Protection Clause must demonstrate arbitrary and purposeful
discrimination in the administration of the law being enforced."); id. ("[E]ven
assuming [a governmental entity] is not enforcing [an] ordinance equally, the fact
that there is some unequal treatment does not necessarily rise to the level of a
constitutional equal protection violation." (quoting Denene, Inc., 358 S.C. at 96,
596 S.E.2d at 922); Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 993 (9th
Cir. 2007), aff'd, 553 U.S. 591 (2008) ("[A]cts that are malicious, irrational, or
plainly arbitrary do not have a rational basis."). Long described his search of the
public records for Simmons's assets and explained his reasons for deciding to levy
against TMS 498. Simmons offered no evidence of any public records or tax
records showing his ownership of farm machinery or heavy equipment that would
have put Long on notice that Simmons owned those pieces of personal property.
We hold Simmons failed to establish any evidence Long's conduct was "malicious,
irrational, or plainly arbitrary" and thus lacking a rational basis.

3. We disagree with Simmons's argument the trial court erred in granting
summary judgment on his claim for negligent retention. First, as the decision to
retain Long as an employee was a discretionary function of the Sheriff's Office, the
Sheriff's Office has discretionary immunity under the South Carolina Tort Claims
Act. See S.C. Code Ann. § 15-78-60(5) (2005) (holding a governmental entity is
not liable for a loss resulting from "the exercise of discretion or judgment by the
governmental entity or employee or the performance or failure to perform any act
or service which is in the discretion or judgment of the governmental entity or
employee"); Sabb v. S.C. State Univ., 350 S.C. 416, 428, 567 S.E.2d 231, 237
(2002) ("Discretionary immunity is contingent on proof the government entity,
faced with alternatives, actually weighed competing considerations and made a
conscious choice using accepted professional standards."). Next, Simmons's
claims for negligent hiring and retention fail because he did not demonstrate a
nexus or similarity between the underlying facts in Long's disciplinary history and
Long's choice to levy upon TMS 498. See Doe v. ATC, Inc., 367 S.C. 199, 206,
624 S.E.2d 447, 450 (Ct. App. 2005) (noting causes of action for negligent hiring
and retention "turn on two fundamental elements—knowledge of the employer and
foreseeability of harm to third parties"); id. ("From a practical standpoint, these
elements are analyzed in terms of the number and nature of prior acts of
wrongdoing by the employee, and the nexus or similarity between the prior acts
and the ultimate harm caused."); McCall v. IKON, 380 S.C. 649, 659-60, 670
S.E.2d 695, 701 (Ct. App. 2008) (noting an appealed order comes to the appellate
court with a presumption of correctness and the burden is on appellant to
demonstrate reversible error); id. (explaining the appellate court is "obliged to
reverse when error is called to our attention, but we are not in the business of
figuring out on our own whether error exists" (quoting Harris v. Campbell, 293
S.C. 85, 87, 358 S.E.2d 719, 720 (Ct. App. 1987))).

4. We disagree with Simmons's argument the trial court erred in granting
summary judgment on his claim against Long. See S.C. Code Ann. § 15-78-70(b)
(2005) (providing the Tort Claims Act does not provide a governmental employee
with immunity from liability "if it is proved that the employee's conduct was not
within the scope of his official duties or that it constituted actual fraud, actual
malice, intent to harm, or a crime involving moral turpitude"); Jones v. Garner,
250 S.C. 479, 488, 158 S.E.2d 909, 914 (1968) ("Actual malice means that the
defendant was actuated by ill will in what he did, with the design to causelessly
and wantonly injure the plaintiff . . . ."). Simmons contends Long sold TMS 498
with the intention of punishing him for a threatening telephone call Long claims
Simmons made. Long testified that he took the threats Simmons made seriously,
but there is no indication he took the threats personally. Long stated he flagged
Simmons's property for the safety of other officers who might respond to a call to
the property. Despite the telephone call, he continued to send Simmons letters
advising him to make arrangements to pay the judgment to avoid the sale and tried
to explain to Simmons how he could avoid the sale when he served the notice of
levy. Long testified he chose TMS 498 because he believed it had the best chance
of satisfying the judgments. In addition, he consulted with his supervisor, who
approved proceeding with levying TMS 498. Simmons's argument Long acted
with actual malice is based on pure speculation. See Nelson v. Piggly Wiggly
Cent., Inc., 390 S.C. 382, 390, 701 S.E.2d 776, 780 (Ct. App. 2010) (stating a non-
moving party may not rely on speculation to defeat a motion for summary
judgment).

5. We agree with Simmons's argument the trial court erred in dismissing his
claim to invalidate the sheriff's sale due to the inadequacy of the sale price. See
Bloody Point Prop. Owners Ass'n v. Ashton, 410 S.C. 62, 70, 762 S.E.2d 729, 733
(Ct. App. 2014) ("A judicial sale will be set aside when either: (1) the sale price 'is
so gross as to shock the conscience[;]' or (2) the sale 'is accompanied by other
circumstances warranting the interference of the court.'" (quoting Wells Fargo
Bank, NA v. Turner, 378 S.C. 147, 150, 662 S.E.2d 424, 425 (Ct. App. 2008))); id.
(explaining while our courts have "not established a bright line rule for what
percentage the sale value must be with respect to the actual value in order to shock
the conscience of the court," courts have consistently held a sale for less than ten
percent of a property's actual value shocks the conscience). Here, Long testified
the appraised value of TMS 498 was $23,900. Simmons presented an appraisal
made in 2006 valuing the property at $70,000. Although the sales price of $600.00
is less than ten percent of even the lower value of the property, Simmons may not
be entitled to equitable relief due to his own inequitable conduct. Mace argues
Simmons's delay and adversarial stance with the County has made it inequitable to
return the property as an appropriate remedy. See Belle Hall Plantation
Homeowner's Ass'n v. Murray, 419 S.C. 605, 619, 799 S.E.2d 310, 317 (Ct. App.
2017), reh'g denied (May 26, 2017), cert. denied (Mar. 7, 2018) ("Under the
doctrine of laches, if a party, knowing his rights does not seasonably assert them,
but by unreasonable delay causes his adversary to incur expenses or enter into
obligations or otherwise detrimentally change his position, then equity will
ordinarily refuse to enforce those rights." (quoting Emery v. Smith, 361 S.C. 207,
215, 603 S.E.2d 598, 602 (Ct. App. 2004); id. ("The party seeking to establish
laches must show (1) delay, (2) unreasonable delay, and (3) prejudice."); id.
(considering the respondent's pre-sale conduct and finding it troubling but
nonetheless affirming the trial court's holding the respondent's action to vacate a
foreclosure sale was not barred by laches). Therefore, we remand the matter to the
trial court for consideration of the issue.

We reverse the trial court's dismissal of Simmons's claim to set aside the sheriff's
sale due to the inadequacy of the price and remand the matter to the trial court for
a determination of whether Simmons's claim is barred by laches. We affirm all
remaining issues.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LOCKEMY, C.J., and HUFF and HILL, JJ., concur.