Happy Rabbit v. Alpine Utilities

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

Happy Rabbit, a
South Carolina Limited Partnership, and Carolyn D. Cook, Appellants,

v.

Alpine Utilities,
Inc., Respondent.

Appeal From Richland County

James R. Barber, III, Circuit Court Judge

Unpublished Opinion No.   2010-UP-558

Submitted December 1, 2010 – Filed December
23, 2010

AFFIRMED

Timothy F. Rogers, Richard L. Whitt, and Jefferson
D. Griffith, III, all of Columbia, for Appellants.

John M. S. Hoefer and Benjamin P. Mustian,
both of Columbia, for Respondent.

PER CURIAM:  Appellants, Happy Rabbit, a South Carolina Limited
Partnership, and Carolyn Cook, brought this action against Respondent Alpine
Utilities, Inc. (Alpine) to recover damages for Alpine's alleged violations of section
27-33-50 of the South Carolina Code (2007), which prohibits utilities from
requiring landlords to execute an agreement to be responsible for charges
billed to premises leased by a tenant.  The circuit court denied Appellants'
motion for class certification and granted Alpine's motion to dismiss the
complaint pursuant to Rule 12(b)(6), SCRCP.  Appellants seek review of both
orders.  We affirm.[1] 

Appellants
maintain that the circuit court erred in dismissing their complaint when it failed to view the complaint's factual
allegations in the light most favorable to them.  Initially, we doubt that
section 27-33-50 creates a private right of action because it was not enacted
for the special benefit of Appellants, but rather for the benefit of the public
in general.  See Dema v. Tenet Physician
Servs.-Hilton Head, Inc., 383 S.C. 115,
121, 678 S.E.2d 430, 433 (2009) (holding that where not expressly
provided, a private right of action may be created by implication only if the
legislation was enacted for the special benefit of a private party rather than
for the benefit of the public in general).     

Even if a private right of
action could be asserted under section 27-33-50, we find a disparity between
the complaint's allegations and the specific actions the statute prohibits.  Section
27-33-50 prohibits a utility from requiring a landlord to sign a new contract to
be responsible for charges billed to premises leased by a tenant.  Yet the
complaint alleges that Appellants and Alpine were already in an existing
contractual relationship on the effective date of section 27-33-50 and that
Alpine would not let Appellants out of their contract.  Therefore, Appellants
have not stated facts sufficient to constitute a cause of action for violation
of section 27-33-50.  See S.C. Energy
Users Comm. v. S.C. Pub. Serv. Comm'n, 388 S.C. 486, 491, 697 S.E.2d 587, 590 (2010) ("A statute as a whole
must receive [a] practical, reasonable, and fair interpretation consonant with
the purpose, design, and policy of lawmakers.") (internal quotation and
citation omitted); Brazell v. Windsor, 384 S.C. 512, 515, 682 S.E.2d 824,
826 (2009) (holding that in deciding whether a trial court properly
granted a motion to dismiss, the appellate court must consider whether the
complaint, viewed in the light most favorable to the plaintiff, states any
valid claim for relief).

Concerning
Appellants' remaining exceptions, we affirm pursuant to Rule 220(b), SCACR, and
the following authorities:

1. As to whether the circuit court erred in dismissing Appellants'
complaint when it considered a potential defense outside the four corners of
the complaint:  Spence v. Spence, 368 S.C. 106, 124, 628 S.E.2d 869, 878
(2006) (approving of the assertion of a defense in a motion to dismiss when there
is no disputed issue of fact raised by the defense or when the facts are
completely disclosed on the face of the pleadings, and realistically nothing
further can be developed by pretrial discovery or a trial on the issue raised
by the defense).

2. As to whether the circuit court
erred in dismissing Appellants' complaint when it failed to grant leave to
Appellants to file an amended complaint:  Spence, 368 S.C. at 130-31, 628 S.E.2d at 882 (holding that when
a complaint is dismissed with prejudice and the plaintiff is denied the
opportunity to file and serve an amended complaint yet fails to present
additional factual allegations or a different theory of recovery that may give
rise to a claim on which relief may be granted, the appellate court may, in its
discretion, affirm the dismissal of the complaint with prejudice); Kneece
v. Kneece, 296 S.C. 28, 32, 370 S.E.2d 288, 291 (Ct. App. 1988) (finding a party's failure to move pursuant to Rule 59(e),
SCRCP, to have the family court amend its decree to
consider a certain issue prevented consideration of the issue on appeal).

3.  As to whether the circuit court erred in dismissing Appellants'
complaint when it failed to recognize that the complaint presented a novel
issue:  Unisys Corp. v. S.C. Budget & Control
Bd. Div. of Gen. Servs. Info. Tech. Mgmt. Office, 346 S.C. 158, 165, 551 S.E.2d 263,
267 (2001) (holding that when a dispute is not as to the underlying facts
but as to the interpretation of the law, and development of the record will not
aid in the resolution of the issues, it is proper to decide even novel issues
on a motion to dismiss). 

4. As to whether the circuit court erred in dismissing Appellants'
complaint when Alpine had not responded to Appellants' pending discovery
requests:  Sullivan Co. v. New Swirl, Inc., 313 S.C. 34, 36, 437 S.E.2d 30, 31 (1993)
("Broad general statements of issues made by an appellant may be
disregarded by this Court.").

5. As to whether the circuit court
erred in allowing Alpine to argue a ground for dismissal that was not included
in its motion to dismiss:  Rule 220(b)(2), SCACR ("The Court of Appeals
need not address a point which is manifestly without merit.").

6. As to whether the circuit court erred in denying Appellants' motion
for class certification when the complaint's allegations satisfied the
requirements of Rule 23(a), SCRCP:  Byrd v. Irmo High Sch., 321 S.C. 426,
431, 468 S.E.2d 861, 864 (1996) (holding that an
issue becomes moot when a decision, if rendered, will have no practical legal
effect upon the existing controversy).

AFFIRMED.

THOMAS, PIEPER, and
GEATHERS, JJ., concur.

[1] We decide this
case without oral argument pursuant to Rule 215, SCACR.