Kevin Penland v. Key Largo Mobile Home Park

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

Kevin Penland, Appellant,

v.

Key Largo Mobile Home Park, Respondent.

Appellate Case No. 2022-000513

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

Unpublished Opinion No. 2024-UP-200
Submitted May 1, 2024 – Filed May 29, 2024

AFFIRMED

Tucker S. Player, of Player Law Firm, LLC, of Chapin;
and Eric Gillespie Armstrong, of Nation Law Firm, P.C.,
of Georgetown, both for Appellant.

Jason Preston Boan, of Boan Law Firm, LLC, of Surfside
Beach; and Marissa Noelle Drost, of The Floyd Law
Firm PC, of Surfside Beach, both for Respondent.

PER CURIAM: Kevin Penland appeals an order of the circuit court affirming the
magistrate's order of eviction in an ejectment action filed by Key Largo Mobile
Home Park. On appeal, Penland argues (1) the circuit court erred in not remanding
the eviction matter to the magistrate court for a jury trial and (2) the circuit court
failed to apply the Manufactured Home Park Tenancy Act (MHPTA). 1 We affirm
pursuant to Rule 220(b), SCACR.

1. We hold the issue of whether the magistrate issued the writ of ejectment in
violation of Penland's right to a jury trial is not preserved for appellate review. The
circuit court issued a Form 4 order that did not address any of Penland's specific
arguments and Penland failed to file a motion pursuant to Rule 59(e) of the South
Carolina Rules of Civil Procedure to request a ruling on these arguments. See
Cowburn v. Leventis, 366 S.C. 20, 41, 619 S.E.2d 437, 449 (Ct. App. 2005)
("When a trial court makes a general ruling on an issue, but does not address the
specific argument raised by a party, that party must make a Rule 59(e) motion
asking the trial court to rule on the issue in order to preserve it for appeal."); Hill v.
S.C. Dep't of Health & Env't Control, 389 S.C. 1, 22 n.11, 698 S.E.2d 612, 623
n.11 (2010) ("[T]he circuit court has the authority to hear motions to alter or amend
when it sits in an appellate capacity and such motions are required to preserve
issues for appeal where the circuit court fails to rule on an issue."); Lindsay v.
Lindsay, 328 S.C. 329, 338, 491 S.E.2d 583, 588 (Ct. App. 1997) ("It is a
fundamental rule of law that an appellate court will affirm a ruling by a lower court
if the offended party does not challenge that ruling."). As to the arguments
regarding the burden of proof required for an eviction, we hold these arguments are
not preserved for appellate review because Penland did not present them to the
magistrate court. See State v. Gault, 375 S.C. 570, 573, 654 S.E.2d 98, 100 (Ct.
App. 2007) (explaining an issue is not preserved for appellate review if it was not
raised to the magistrate court). Further, we hold Penland's ex parte
communications argument is not properly before this court because Penland did
not raise it in his appellate brief to this court and only addressed the issue in his
reply brief. See Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557
S.E.2d 689, 692 (Ct. App. 2001) ("[A]n argument made in a reply brief cannot
present an issue to the appellate court if it was not addressed in the initial brief.").

2. We hold the issue of whether the circuit court failed to apply the MHPTA is not
preserved for review because Penland failed to raise this issue to the circuit court.
See Bowers v. Thomas, 373 S.C. 240, 247, 644 S.E.2d 751, 754 (Ct. App. 2007)
("An issue not raised to and ruled upon by the court is not preserved for appeal.");
State v. Bailey, 368 S.C. 39, 44, 626 S.E.2d 898, 900 (Ct. App. 2006) (explaining
that in an appeal from the magistrate court to the circuit court where an issue was

1
S.C. Code Ann. §§ 27-47-10 to -620 (2007).
not brought to the attention of circuit court, it is not appropriate for this court to
review it).

AFFIRMED. 2

GEATHERS, HEWITT, and VINSON, JJ., concur.

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