Cole Towing and Recovery, LLC v. City of Spartanburg

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

Cole Towing and Recovery, LLC, Appellant,

v.

City of Spartanburg and Spartanburg City Council,
Respondents.

Appellate Case No. 2017-002585

Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2021-UP-048
Submitted June 1, 2020 – Filed February 17, 2021

AFFIRMED

Robert Clyde Childs, III, of Childs Law Firm, and J.
Falkner Wilkes, both of Greenville, for Appellant.

Danny Calvert Crowe and Mary Daniel LaFave, both of
Crowe LaFave, LLC, of Columbia, for Respondents.

PER CURIAM: Cole Towing and Recovery, LLC appeals the circuit court's grant
of summary judgment to the City of Spartanburg and Spartanburg City Council
(collectively, the City) on Cole Towing's action against the City seeking to
invalidate an ordinance (the Ordinance) regulating towing practices and charges
for vehicles towed from private property. Cole Towing argues the circuit court
erred in granting summary judgment when (1) the City exceeded its authority to
enact the Ordinance criminalizing behavior that is lawful under state statutory
scheme; (2) there were genuine issues of material fact as to whether the City
exceeded its authority to enact the Ordinance imposing, among other things, a fee
schedule for nonconsensual towing from private property; and (3) there were
genuine issues of material facts necessary to a determination of whether the
Ordinance violated the contract clause. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to whether the City exceeded its authority to enact the Ordinance
criminalizing behavior that is lawful under state statutory scheme and whether
there were genuine issues of material fact as to whether the City exceeded its
authority to enact the Ordinance imposing, among other things, a fee schedule for
nonconsensual towing from private property1: Fleming v. Rose, 350 S.C. 488, 493,
567 S.E.2d 857, 860 (2002) (determining that when reviewing the grant of a
summary judgment motion, this court applies the same standard that governs the
trial court under Rule 56(c), SCRCP; summary judgment is proper when there is
no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law); Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397,
404, 581 S.E.2d 161, 165 (2003) (noting that in determining whether a genuine
issue of fact exists, the evidence and all reasonable inferences drawn from it must
be viewed in the light most favorable to the nonmoving party); Wiegand v. U.S.
Auto. Ass'n, 391 S.C. 159, 163, 705 S.E.2d 432, 434 (2011) ("Whe[n] cross[-
]motions for summary judgment are filed, the parties concede the issue before us
should be decided as a matter of law."); Alltel Commc'ns, Inc. v. S.C. Dep't of
Revenue, 399 S.C. 313, 319 n.2, 731 S.E.2d 869, 872 n.2 (2012) (noting "the
parties filed cross[-]motions for summary judgment, thereby indicating the parties'
belief that further development of the facts was unnecessary"); Beachfront Entm't,
Inc. v. Town of Sullivan's Island, 379 S.C. 602, 605, 666 S.E.2d 912, 913 (2008)

1
To the extent Cole Towing maintains that the circuit court should have
considered and made a specific ruling on the legal sufficiency of the facts for the
"predatory practices" basis for the Ordinance, Cole Towing's statement of issues on
appeal contains no reference to a ruling on predatory practices. Accordingly, any
argument about this is abandoned. See Rule 208(b)(1)(B), SCACR (requiring an
appellant's initial brief to contain "[a] statement of each of the issues presented for
review"); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("No
point will be considered which is not set forth in the statement of issues on
appeal.").
("In determining the validity of a local ordinance, the inquiry is twofold: did the
local government have the power to enact the ordinance[] and[] if so, is the
ordinance consistent with the [c]onstitution and general law of this [s]tate."); id. at
606, 666 S.E.2d at 914 ("Article VIII, [section] 14, of our [s]tate [c]onstitution
requires uniformity regarding the criminal law of this [s]tate and local governments
may not criminalize conduct that is legal under a statewide criminal law." (footnote
omitted)); id. (finding when the state has "not preempted the regulation of [an
activity,] a local government may therefore criminalize [that activity], but only to
the extent consistent with [s]tate law"); S.C. Code Ann. § 16-11-760(A) to (B)
(2005) ("(A) It is unlawful for a person to park a vehicle . . . on the private property
of another without the owner's consent. If the property is for commercial use, the
owner must post a notice in a conspicuous place on the borders of the property near
each entrance prohibiting parking. . . . (B) A vehicle found parked on private
property may be towed and stored at the expense of the registered owner or
lienholder, and charges for towing, storing, preserving the vehicle, and expenses
incurred if the owner and lienholder are notified pursuant to [statute] constitute a
lien against the vehicle, provided that the towing company makes notification to
the law enforcement agency . . . .")); Bugsy's, Inc. v. City of Myrtle Beach, 340
S.C. 87, 95, 530 S.E.2d 890, 894 (2000) ("Whe[n] an ordinance is not preempted
by [s]tate law, the ordinance is valid if there is no conflict with [s]tate law."); City
of North Charleston v. Harper, 306 S.C. 153, 156-57, 410 S.E.2d 569, 571 (1991)
("A city ordinance conflicts with state law when its conditions, express or implied,
are inconsistent or irreconcilable with the state law."); Bugsy's, Inc., 340 S.C. at 95,
530 S.E.2d at 894 ("In order for there to be a conflict between a state statute and a
municipal ordinance, both must contain either express or implied conditions [that]
are inconsistent and irreconcilable with each other. If either is silent whe[n] the
other speaks, there is no conflict."); Quality Towing, Inc. v. City of Myrtle Beach,
340 S.C. 29, 36, 530 S.E.2d 369, 372 (2000) ("State law forbids parking vehicles
on private property without permission from the owner and permits involuntary
tows of such vehicles . . . ."); id. at 35-36, 530 S.E.2d at 372 (noting a local
ordinance imposed the maximum fees that could be charged for towing and storage
but did not specify penalties for violations by towing companies); id. at 36, 530
S.E.2d at 372 ("[T]he focus of the state statute is on the conduct of the vehicle
owner, whereas the focus of the city ordinance is on the conduct of the property
owner and towing company."); id. at 37, 530 S.E.2d at 373 (concluding a particular
ordinance a city enacted to deal with local towing problems did not conflict
with section 16-11-760); id. ("Our constitution mandates 'home rule' for local
governments."); id. ("Implicit in [a]rticle VIII [of the constitution] is the realization
that different local governments have different problems that require different
solutions." (quoting Hosp. Ass'n of S.C. v. County of Charleston, 320 S.C. 219,
230, 464 S.E.2d 113, 120 (1995))); Harper, 306 S.C. at 156, 410 S.E.2d at 571
("Local governments derive their police powers from the state. The state has
granted local governments broad powers to enact ordinances 'respecting any
subject as shall appear to them necessary and proper for the security, general
welfare and convenience of such municipalities.'" (citation omitted) (quoting S.C.
Code Ann. § 5-7-30 (1976))); id. ("This is in recognition that more stringent
regulation often is needed in cities than in the state as a whole. However, the grant
of power is given to local governments with the proviso that the local law not
conflict with state law." (citation omitted)).

2. As to whether there were genuine issues of material facts necessary to a
determination of whether the Ordinance violated the contract clause: Hodges v.
Rainey, 341 S.C. 79, 93, 533 S.E.2d 578, 585 (2000) ("To constitute a Contract
Clause violation [an appellate court] must determine three issues: (1) whether there
is a contractual relationship; (2) whether the change in the law impairs that
contractual relationship; and (3) whether the impairment is substantial."); Ken
Moorhead Oil Co. v. Federated Mut. Ins. Co., 323 S.C. 532, 544, 476 S.E.2d 481,
488 (1996) ("For a law to survive scrutiny under the Contract Clause when the law
substantially impairs a contract, it must be 'reasonable and necessary to accomplish
a legitimate public purpose.'" (quoting Citizens for Lee Cty., Inc. v. Lee County,
308 S.C. 23, 30, 416 S.E.2d 641, 646 (1992))); Carolina All. for Fair Emp't v. S.C.
Dep't of Labor, Licensing, & Regulation, 337 S.C. 476, 485, 523 S.E.2d 795, 799-
800 (Ct. App. 1999) ("The party seeking summary judgment has the initial burden
of demonstrating the absence of a genuine issue of material fact. Once the party
moving for summary judgment meets this initial burden, the non[]moving party
cannot simply rest on the mere allegations or denials contained in the pleadings.
Rather, the non[]moving party must come forward with specific facts showing
there is a genuine issue for trial." (citations omitted)); id. at 485, 523 S.E.2d at 800
("The plain language of Rule 56(c), SCRCP, mandates the entry of summary
judgment, after adequate time for discovery against a party who fails to make a
showing sufficient to establish the existence of an element essential to the party's
case and on which that party will bear the burden of proof at trial. A complete
failure of proof concerning an essential element of the non[]moving party's case
necessarily renders all other facts immaterial." (citation omitted))); Wiegand, 391
S.C. at 163, 705 S.E.2d at 434 ("Whe[n] cross[-]motions for summary judgment
are filed, the parties concede the issue before us should be decided as a matter of
law."); Alltel Commc'ns, Inc., 399 S.C. at 319 n.2, 731 S.E.2d at 872 n.2 (noting
"the parties filed cross[-]motions for summary judgment, thereby indicating the
parties' belief that further development of the facts was unnecessary").
AFFIRMED.2

WILLIAMS, KONDUROS, and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.