Spinner v. Adams

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Robert C. Spinner and Shirley Spinner,       
Appellants,

v.

William Adams and Celeste Adams,       
Respondents.

Appeal From York County

John Buford Grier, Special Circuit
Court Judge

Unpublished Opinion No. 2004-UP-040

Submitted November 19, 2003 – Filed
January 21, 2004

AFFIRMED

Douglas F. Gay, of Rock Hill, for Appellants.

Lucy London McDow, of Rock Hill, for Respondents.

PER CURIAM:  Robert and Shirley Spinner
appeal the trial court’s decision ruling they failed to prove the barking of
the dogs of William and Celeste Adams constituted a nuisance.  We affirm.
[1]

The Spinners
brought this action against the Adamses alleging the barking of the Adamses
four dogs constituted a nuisance.  They sought damages and an injunction. 

At trial, Robert Spinner testified the dogs began
barking immediately after the Adamses moved into their home.  He explained
he repeatedly asked his neighbors to quiet the dogs and although he initially
received reassurances, he was later told he would have to live with the situation. 
Spinner claimed his work as a truck driver was affected because the barking
interfered with his sleep.  Shirley Spinner testified she was once so upset
about the barking and about her husband working without sleep that she thought
she was having a heart attack.  Tests later revealed she did not suffer any
cardiac event.  The Spinners called animal control, made numerous complaints
to the York County Sheriff’s Office, swore out warrants against the Adamses,
and sued the Adamses on more than one occasion.  One deputy who responded
to some of the Spinners’ calls testified the Adamses dogs were barking at
all times when she was there and that she spoke with the Adamses, advising
them of the county noise ordinance and asking them to quiet their dogs. 

Celeste Adams testified she tried to keep her dogs
from bothering the neighbors.  She testified she tried keeping them indoors
at night, putting special collars on them, and directing a sprinkler at their
doghouse so they would stay inside.  She testified the barking continued at
times and that in a final effort to end the strife, approximately one year
before the hearing, she had the dogs’ vocal cords surgically notched so they
could no longer bark. 

The Adamses also presented evidence the Spinners
were unduly sensitive.  A county attorney testified all parties attending
a mediation hearing were willing to work out a solution except for Robert
Spinner.  Other neighbors testified the dogs were not a problem and some alleged
the Spinners had harassed them regarding even occasional mild barking by their
own dogs.  One neighbor stated that when Robert Spinner called to complain
about her dog barking she noticed he had his windows open.  Spinner himself
testified he did not think he should have to close his windows in order to
lessen his disturbance by his neighbors’ dogs. 

LAW/ANALYSIS

The Spinners argue the trial court erred in refusing
to consider a tape of the Adamses’ dogs barking.  They also argue the court
erred in failing to apply county provisions that require pet owners to prevent
their pets from becoming a public nuisance.  Neither issue is preserved.

Although Robert Spinner testified he brought tape
recordings of the Adamses’ dogs to court with him, the record does not reflect
an attempt to mark or submit the tapes as evidence or to proffer their contents
to the court.  Thus, it does not appear the court was asked to consider the
tapes.  The court was also not asked to consider or apply any particular county
ordinance.  The Spinners did not mention any specific ordinance in their pleadings,
in their hearing before the trial court, or in their brief to this court. 
To be preserved for appellate review, an issue must be raised to and ruled
upon by the trial court.  Mizell v. Glover, 351 S.C. 392, 399, 570
S.E.2d 176, 180 (2002).  Furthermore, short conclusory statements without
supporting legal authority, such as the Spinners’ two-paragraph argument regarding
the York County Code, are deemed abandoned on appeal.  Glasscock, Inc.
v. U.S. Fidelity & Guaranty Co., 348 S.C. 76, 81, 557 S.E.2d 689,
691 (Ct. App. 2001).

The Spinners also argue the court erred in finding
they failed to produce sufficient evidence to prove the existence of a nuisance. 
We disagree.  To establish a nuisance, a landowner traditionally must demonstrate
the defendant unreasonably interfered with the ownership or use of the plaintiff’s
land.  FOC Lawshe Ltd. P’ship v. Int’l Paper Co., 352 S.C. 408, 413-14,
574 S.E.2d 228, 231 (Ct. App. 2002).  Determining whether one landowner’s
use of his property is a legal infringement on the property rights of another
requires delicate balancing of the parties conflicting interests and rights. 
Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 159, 130 S.E.2d 363,
367 (1963).  Although landowners must not unreasonably interfere with the
rights of their neighbors to enjoy their property, not every annoyance or
disturbance created by the landowner’s use of his property constitutes a nuisance. 
O’Cain v. O’Cain, 322 S.C. 551, 560-61, 473 S.E.2d 460, 466 (Ct. App.
1996).  The inquiry is not whether the plaintiffs have been annoyed or disturbed
but whether their legal rights have been injured. 

Here, we agree with the trial court that the Spinners
have failed to establish their claim that the Adamses’ dogs constituted a
private nuisance.  Although the Spinners testified they were bothered and
disturbed by the dogs’ barking, they failed to prove the barking rose to a
level where their rights were injured.  There was evidence showing the Adamses
made several attempts to lessen the disturbance to the Spinners, including
having the dogs surgically “debarked.” There was also evidence the Spinners
were unusually sensitive and unwilling to mitigate the annoyance they suffered. 
Other homeowners in the neighborhood testified they had no problems with the
Adamses’ dogs. 

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.

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