Izzard v. City of Georgetown

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

Richard Izzard, Appellant,

v.

City of Georgetown Building Official, Stephen Stack,
and City of Georgetown, Respondents.

Appellate Case No. 2011-195786

Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2013-UP-479
Heard October 8, 2013 – Filed December 18, 2013

AFFIRMED

Richard Izzard, pro se.

Michael Warner Battle, of Battle & Vaught, P.A., of
Conway, for Respondents.

PER CURIAM: This appeal arises out of Appellant Richard Izzard's complaint
against Respondents the City of Georgetown and Stephen Stack. On appeal, Izzard
argues the circuit court erred by: (1) relying on a prior action when no such action
existed; (2) determining there were no genuine issues of material fact and entering
judgment as a matter of law; (3) applying the doctrine of res judicata; (4) applying
the doctrine of collateral estoppel; (5) finding there was no improper taking as a
matter of law; (6) determining as a matter of law the City properly asserted its
police power; (7) granting Respondents summary judgment on Izzard's negligence
and gross negligence claims; (8) granting Respondents summary judgment on
Izzard's procedural due process claim; (9) granting Respondents summary
judgment on Izzard's conversion claim; and (10) determining Respondents' actions
were in concert with the International Building Code. We affirm.

1. Because we find there is no genuine issue of material fact that Izzard's property
was taken for public use, we need not reach whether the circuit court erred by
applying the doctrines of res judicata and collateral estoppel to bar Izzard's takings
and police power claims. Therefore, the circuit court did not err by granting
summary judgment. See Rule 56(c), SCRCP (providing 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"); Carolina Chloride, Inc. v. S.C. Dep't of Transp.,
391 S.C. 429, 435, 706 S.E.2d 501, 504 (2011) ("The elements of an action for an
inverse condemnation are: (1) affirmative conduct of a government entity; (2) the
conduct effects a taking; and (3) the taking is for a public use."); S.C. State
Highway Dep't v. Wilson, 254 S.C. 360, 365, 175 S.E.2d 391, 394 (1970) ("[J]ust
compensation is required in the case of the exercise of eminent domain but not for
the loss by the property owner which results from the constitutional exercise of the
police power."); Carolina Convenience Stores, Inc. v. City of Spartanburg, 398
S.C. 27, 32, 727 S.E.2d 28, 30 (Ct. App. 2012) ("A detriment to private property
that results from a legitimate exercise of police power does not constitute a taking
of private property for public use.").

2. We find there is no genuine issue of material fact as to whether Izzard's due
process rights were violated; therefore, the circuit court did not err by granting
summary judgment on Izzard's procedural due process claim. See Rule 56(c),
SCRCP (providing 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"); Harbit v. City
of Charleston, 382 S.C. 383, 394, 675 S.E.2d 776, 781-82 (Ct. App. 2009)
(affirming the circuit court's grant of summary judgment on the appellant's
procedural due process claim when the appellant "received three levels of review,
in each of which he was allowed to present his position").

3. We find no error in the circuit court granting summary judgment for
Respondents on Izzard's negligence, gross negligence and conversion claims
because Izzard's claims were barred by the statute of limitations. See Rule 220(c),
SCACR (providing an appellate court may affirm for any reason appearing in the
record); S.C. Code Ann. § 15-78-110 (2005) (providing any action brought
pursuant to the South Carolina Tort Claims Act "is forever barred unless an action
is commenced within two years after the date the loss was or should have been
discovered"); Holmes v. Nat'l Serv. Indus., Inc., 395 S.C. 305, 309, 717 S.E.2d
751, 753 (2011) ("[T]he statute of limitations begins to run from the date the
claimant knew or should have known that, by the exercise of reasonable diligence,
a cause of action exists."); Snell v. Columbia Gun Exch., Inc., 276 S.C. 301, 303,
278 S.E.2d 333, 334 (1981) ("The exercise of reasonable diligence means simply
that an injured party must act with some promptness where the facts and
circumstances of an injury would put a person of common knowledge and
experience on notice that some right of his has been invaded or that some claim
against another party might exist.").

4. We find Izzard's remaining issues on appeal are unpreserved for appellate
review. See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80
(2004) (noting an issue must be raised to and ruled upon by the circuit court to be
preserved for appellate review).

AFFIRMED.

FEW, C.J., and PIEPER, and KONDUROS, JJ., concur.