Levy v. Carolinian, LLC

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

Shaul Levy and Meir Levy, Respondents,

v.

Carolinian, LLC, Appellant.

Appellate Case No. 2015-002638

Appeal From Horry County
Larry B. Hyman, Jr., Circuit Court Judge

Unpublished Opinion No. 2018-UP-099
Heard November 7, 2017 – Filed March 7, 2018

AFFIRMED

David B. Miller and Benjamin Albert Baroody, of
Bellamy, Rutenberg, Copeland, Epps, Gravely &
Bowers, P.A., of Myrtle Beach, for Appellant.

R. Wayne Byrd and Audra M. Byrd, of Turner Padget
Graham & Laney, PA, of Myrtle Beach; and R.
Hawthorne Barrett and Mark B. Goddard, of Turner
Padget Graham & Laney, PA, of Columbia, for
Respondent.
PER CURIAM: This appeal arises from a dispute over the effect of the supreme
court's opinion in Levy v. Carolinian, LLC, 410 S.C. 140, 763 S.E.2d 594 (2014)
(Levy I), which reversed the circuit court's order but did not expressly remand the
matter for further proceedings. The supreme court held the circuit court erred in
interpreting a redemption provision of Carolinian, LLC's1 operating agreement (the
Operating Agreement) to prohibit Shaul and Mier Levy (collectively, the Levys)
from foreclosing their charging lien against Bhupendra Patel's distributional
interest in Carolinian. Id. at 146–48, 763 S.E.2d 597–98. The supreme court
found the Operating Agreement provided Carolinian the right to purchase Patel's
distributional interest prior to a foreclosure sale, but the judicial sale extinguished
Carolinian's right to redeem. Id. at 147, 763 S.E.2d at 597. Following the supreme
court's transmission of the remittitur, the circuit court held a nonjury trial and
granted some of the declaratory and injunctive relief the Levys requested in their
complaint. After the denial of its Rule 59(e), SCRCP, motion to alter or amend,
Carolinian appealed, arguing the circuit court erred in conducting the second trial
because the supreme court's decision in Levy I granted the Levys any relief they
sought and ended the case. We affirm.

I. Jurisdiction

Carolinian argues the circuit court lacked jurisdiction to hold the second trial
because Levy I merely reversed the circuit court but contained no specific language
remanding the case for further proceedings. Like the circuit court, we disagree.
Levy I addressed only the provision of the Operating Agreement providing
Carolinian the right to purchase Patel's distributional interest prior to the
foreclosure sale; it did not address the Levys' further requests for declaratory and
injunctive relief as set forth in their complaint.

After denying Carolinian's petition for rehearing in Levy I, the supreme court
remitted the case to the circuit court. See Wise v. S.C. Dep't of Corr., 372 S.C.
173, 174, 642 S.E.2d 551, 551 (2007) (stating an appellate court divests itself of
jurisdiction over a matter when it properly sends the remittitur to a lower court).
Thereafter, the Horry County Clerk of Court properly returned the case to the
active nonjury trial roster and scheduled a second trial. See Martin v. Paradise
Cove Marina, Inc., 348 S.C. 379, 385, 559 S.E.2d 348, 351 (Ct. App. 2001) ("The
jurisdiction of the circuit court to hear matters after issuance of the remittitur is
well established."). Because neither the circuit court nor the supreme court

1
Carolinian is a closely held, manager-managed limited liability company (LLC)
which manages hotel and rental properties in Horry County.
addressed the Levys' claims for declaratory and injunctive relief in Levy I, the
supreme court's reversal logically required the circuit court to conduct additional
proceedings to consider any remaining claims set forth in the complaint. See
Moore v. N. Am. Van Lines, 319 S.C. 446, 448, 462 S.E.2d 275, 276 (1995)
(explaining that although it "did not expressly 'remand' the case, the remittitur was
sent to the circuit court where it regained jurisdiction" to hear the appellant's
motion); Martin, 348 S.C. at 385, 559 S.E.2d at 351–52 ("[O]nce the remittitur is
issued from an appellate court, the circuit court acquires jurisdiction to enforce the
judgment and take any action consistent with the appellate court's ruling.").

II. Justiciability

Carolinian argues Levy I rendered the remainder of this case moot and left no
remaining case or controversy for adjudication. We disagree.

The Levys and Carolinian remain in an ongoing adversarial relationship—the
Levys own the distributional interest associated with Patel's membership in
Carolinian, which Carolinian wants but failed to purchase pursuant to the terms of
the Operating Agreement. Thus, there is a real and substantial risk that without the
circuit court's order, Carolinian will continue to seek ways to circumvent or
undermine the Levys' distributional interest. The record illustrates that at the time
of the second nonjury trial, Carolinian was still attempting to use the language of
the Operating Agreement to interfere with the Levys' distributions. Under these
circumstances, we find the Levys' claims for declaratory and injunctive relief
remained outstanding and in dispute following the supreme court's decision. See
Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 424, 593 S.E.2d 462, 467
(2004) ("The controversy is real and substantial; it is not contingent, abstract, or
hypothetical. The validity of the ordinance and the parties' rights under it as they
presently exist will be resolved by our decision."). Thus, Levy I did not render the
remainder of this case moot. See Sloan v. Greenville Cty., 380 S.C. 528, 535, 670
S.E.2d 663, 667 (Ct. App. 2009) ("A case becomes moot when judgment, if
rendered, will have no practical legal effect upon the existing controversy.").

Finally, although Carolinian's appeal sets forth a challenge to the terms of the
injunctive relief awarded to the Levys, it did not raise this argument to the circuit
court at the initial hearing. See Staubes v. City of Folly Beach, 339 S.C. 406, 412,
529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the trial court
to be preserved for appellate review."). The record reflects that at the May 12,
2015 hearing, Carolinian devoted almost its entire argument to the theories that no
justiciable controversy existed and the circuit court lacked authority to issue any
order at all. Other than reading from the Levys' complaint, Carolinian offered no
argument challenging the terms of the injunctive relief sought. Although
Carolinian briefly set forth a substantive challenge to the Levys' request for
injunctive relief at the hearing on its motion to alter or amend, it was too late for
Carolinian to properly assert a new argument at that time. See Hickman v.
Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party
cannot use Rule 59(e) to present to the court an issue the party could have raised
prior to judgment but did not."). Therefore, we find unpreserved Carolinian's
argument addressing the merits of the circuit court's grant of injunctive relief. See
Staubes, 339 S.C. at 412, 529 S.E.2d at 546 ("Error preservation requirements are
intended 'to enable the lower court to rule properly after it has considered all
relevant facts, law, and arguments.'" (quoting I'On v. Town of Mt. Pleasant, 338
S.C. 406, 422, 526 S.E.2d 716, 724 (2000))).

Accordingly, the findings and decision of the circuit court are

AFFIRMED.

WILLIAMS, THOMAS and MCDONALD, JJ., concur.