McPeake Hotels, Inc. v. Jasper's Porch, Inc.

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

McPeake
Hotels, Inc., Appellant,

v.

Jasper's Porch,
Inc. and the Town of Ridgeland, South Carolina,

Of whom the
Town of Ridgeland, South Carolina is the, Respondent.

Appeal
From Jasper County

R.
Markley Dennis, Jr., Circuit Court Judge

Unpublished
Opinion No. 2009-UP-396

Heard
May 12, 2009 – Filed July 23, 2009

AFFIRMED

Gregory M. Alford, of Hilton Head, for
Appellant.

Andrew F. Lindemann, of Columbia, for
Respondent.

PER
CURIAM:  In
this inverse condemnation action, McPeake Hotels, Inc. appeals the grant of
summary judgment in favor of the Town of Ridgeland.[1]  McPeake further
appeals the denial of injunctive relief and argues summary judgment was
premature because discovery was not yet completed.[2]  We affirm.

1. 
As to the inverse condemnation claim, McPeake failed to present any evidence of
diminution in value of the property as a result of the alleged taking and we
affirm the grant of summary judgment pursuant to Rules 220(b)-(c),[3] SCACR, and
the following authorities:  Kiriakides v. School Dist. of Greenville County,
382 S.C. 8, 14, 675 S.E.2d 439, 442 (2009) ("A landowner has the burden of
proving damages for the taking of the landowner's property, whether through
condemnation proceedings or by inverse condemnation."); WRB Ltd. P'ship
v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006)
(in order to prevail in an inverse condemnation action, the plaintiff must
prove an affirmative, aggressive, and positive act by the government, causing
the alleged damage to the plaintiff's property); Raven v. Greenville County,
315 S.C. 447, 465, 434 S.E.2d 296, 307 (Ct. App. 1993) (stating the measure of
damages for injury to real property, whether by nuisance, trespass, negligence,
or inverse condemnation is the diminution in the market value of the property). 

2. 
As to the remaining claim for injunctive relief, McPeake failed to challenge
the grounds upon which the trial court based its decision to deny the request
for an injunction.  See Charleston Lumber Co., Inc. v. Miller Hous.
Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (providing "an
unchallenged ruling, right or wrong, is the law of this case.").  Moreover,
on appeal, McPeake merely argues a governmental entity is not precluded from
being enjoined based on sovereign immunity.  See Anderson v. Short,
323 S.C. 522, 525, 476 S.E.2d 475, 477 (1996) (holding when a trial court's
decision is based on multiple grounds, the appellate court will affirm unless
the appellant appeals all grounds because the unappealed ground will become the
law of the case).  Accordingly, we affirm the trial court's denial of
injunctive relief as it is the law of the case.

AFFIRMED.[4]

HUFF,
PIEPER, and GEATHERS, JJ., concur.

[1]  This appeal
does not involve any claim against Jasper's Porch, Inc.

[2] Although McPeake
argued the motion for summary judgment was premature in its memorandum in
opposition to the motion, the trial court never addressed this issue and
McPeake did not raise the issue in its Rule 59(e) motion.  Accordingly, this
issue is not preserved for appellate review.  See Wilder Corp. v.
Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating issue cannot be
raised for the first time on appeal but must have been raised to and ruled upon
by the trial judge to be preserved for appellate review).  We further note that
a motion for continuance was never filed by McPeake.  Nonetheless, there was
ample time to conduct discovery as this action was pending for more than one
year and McPeake even acknowledged in its interrogatories four months prior to
the hearing that it would likely retain an expert to testify concerning
damages.

[3] See Upchurch
v. New York Times, 314 S.C. 531, 538, 431 S.E.2d 558, 562 (1993) (“We may
affirm the trial judge for any reason appearing in the record.”) (citing Rule
220(c), SCACR).

[4] The Town of
Ridgeland asked this court to review its denial of the motion to strike the
deposition pages filed after the trial court orally granted summary judgment. 
Because these pages were filed after the trial court granted summary judgment,
we agree these pages were untimely.  See Higgins v. Med. Univ. of
South Carolina, 326 S.C. 592, 599, 486 S.E.2d 269, 272 (Ct. App. 1997)
("When ruling on a motion for summary judgment, the trial court must
consider all of the documents and evidence within the record,
including the pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits.") (emphasis in original).  Nevertheless, even if the
omitted deposition pages were considered, they have no impact on the
disposition of this appeal.  See McCall v. Finley, 294 S.C. 1, 4,
362 S.E.2d 26, 28 (Ct. App. 1987) ("whatever doesn't make any difference,
doesn't matter.").