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South Carolina
Judicial Department
2010-UP-369 - Island Preservation v. Fenwick Properties


In The Court of Appeals

Island Preservation Company, LP and Thomas Dewey Wise, Respondents,


State of South Carolina and the South Carolina Department of Natural Resources, and Fenwick Properties, LLC, Defendants,

Of Whom Fenwick Properties, LLC is Appellant.

Appeal From Colleton County
Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2010-UP-369
Heard April 13, 2010 – Filed July 19, 2010


Richard L. Tapp, Jr., and Stephen P. Groves, Sr., of Charleston, for Appellant.

David K. Haller, of Charleston, for Respondents.

PER CURIAM: Fenwick Properties appeals the trial court's order granting partial summary judgment to Island Preservation Company and Thomas Dewey Wise (collectively Island Preservation), in which the court upheld a 1984 order declaring Island Preservation's predecessor-in-title fee simple owner of marshland (Marsh Property) due to a King's Grant.  We find Fenwick Properties is not a party aggrieved by this order and dismiss. 


In the fall of 1983, Dewey Wise contracted to purchase several hundred acres of land on South Fenwick Island.  For tax purposes, he asked his law partner at the time, W. Gregory Pearce, to act as his agent in the transaction.  At the closing on the property, title was placed in Pearce's name, even though Wise provided all of the funds for the purchase price.  A declaratory judgment action was brought in Pearce's name against the State of South Carolina requesting a declaration Pearce was the owner in fee simple to the mean low water mark by virtue of a King's Grant.  Before the court issued its ruling in the declaratory judgment action, Pearce conveyed the property to Wise.  Neither Pearce nor Wise moved to amend the complaint in the action to substitute Wise as a party.  In October of 1984, the court issued an order ruling the property line extended to the low water mark.  This order was not appealed.  Wise subsequently transferred the property to Island Preservation Company, of which he is the general partner.  When questions arose concerning the King's Grant in 2005, Pearce executed a quit claim deed for the Marsh Property within the King's Grant. 

In April of 2006, Island Preservation brought the present declaratory judgment action against the State seeking a declaration the October 1984 order was valid.  In its second amended complaint, it named as Defendants both the State and the South Carolina Department of Natural Resources (DNR), which by way of a 2005 deed from the Nature Conservatory may have a competing claim to a portion of the Marsh Property.  In addition to requesting a declaration concerning the validity of the 1984 order, it asked for a declaration that its title was superior to any competing claim.  In the alternative, it requested the court find it possessed fee simple title to the tidelands between the high water mark and low water mark as it can trace its title to King George II of England.  In their answer, the State and DNR asserted the 1984 order was not valid because the named plaintiff, Gregory Pearce, had conveyed the property prior to the issuance of the order.  They also asked for a declaration DNR's 2005 deed prevailed over any claim Island Preservation had to the overlapping property and for an adjudication of the boundaries between DNR and Island Preservation's properties. 

Fenwick Properties moved to intervene in the proceedings, claiming an interest due to its ownership of property on South Fenwick Island, possession of an easement over Island Preservation's property, and being the holder of a dock permit over the disputed marsh.  The trial court granted the motion to intervene.  It subsequently granted Island Preservation's motion for partial summary judgment.  It held Pearce was a real party in interest in the 1984 litigation, and thus, the 1984 order was valid.  The court stated the remaining issues between the parties would be litigated later. 

All of the defendants moved for reconsideration of the order.  In the substituted order, the court again found the 1984 order to be valid.  It noted:  "Fenwick Properties, which seeks to have an easement at the location interpreted, has no claim to fee simple title to the tidelands.  The arguments offered by Fenwick Properties concern the validity of the grant; it has not questioned the validity of the 1984 order."  It reiterated the remaining issues not covered in the order granting summary judgment could still be litigated, "specifically the State's claims relating to its 2005 deed to the marshes of Pine Island and the claims of Fenwick Properties."  This appeal followed.    


Island Preservation argues Fenwick Properties does not have the right to appeal the trial court's order as it is not a party aggrieved by the order.  We agree. 

The South Carolina Appellate Court Rules limit the ability to appeal to “[o]nly a party aggrieved by an order, judgment . . . or decision. . . .”  Rule 201(b), SCACR.  As used by this rule, the word "aggrieved" means "a substantial grievance, a denial of some personal or property right, or the imposition on a party of a burden or obligation.”  Powell ex rel. Kelley v. Bank of Am., 379 S.C. 437, 447, 665 S.E.2d 237, 243 (Ct. App. 2008).  “A party is aggrieved by a judgment or decree when it operates on his or her rights of property or bears directly on his or her interest.” Id.  "There is no material distinction in general standing principles juxtaposed to the ability of an 'aggrieved party' to appeal pursuant to Rule 201(b)."  Id. at 447, 665 S.E.2d at 242. 

Standing concerns whether a party has “sufficient interest in the outcome of the litigation to warrant consideration of that party's position by a court.  Powell, 379 S.C. at 444, 665 S.E.2d 237 at 241.  Generally, to have standing, a party must have a personal stake in the subject matter of the litigation.  Michael P. v. Greenville Dep't of Soc. Servs., 385 S.C. 407, 415-16, 684 S.E.2d 211, 215 (Ct. App. 2009).

Standing is comprised of three elements: (1) the plaintiff must have suffered an injury-in-fact that is concrete and particularized, and actual and imminent as opposed to hypothetical; (2) the injury and the conduct complained of the defendant must be causally connected; and (3) it must be likely that the injury will be redressed by a favorable decision. 

Id. at 416, 684 S.E.2d at 215.

Fenwick Properties contends it has standing because enforcing the 1984 order against it is a violation of its due process rights.  See S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 380 S.C. 349, 669 S.E.2d 899 (2008) (stating procedural due process requires notice, an opportunity to be heard, and meaningful judicial review to an individual whose property or liberty interests would be affected).  Fenwick Properties does not claim a fee simple interest in the Marsh Property.  Instead, it asserts that as the holder of an easement, it cannot be bound by the 1984 order because its predecessor-in-title was not named as a party in the 1984 litigation.  However, the 1984 action simply determined Island Preservation's predecessor-in-title possessed a King's Grant of the Marsh Property.  It did not adversely affect any easement interest over what is now Island Preservation's property.  It was therefore unnecessary for Pearce to name Fenwick Properties' predecessor-in-title as a party defendant.  See S.C. Code Ann. § 15-67-70 (2005) ("Any judgment entered in an action to try adverse claims shall be binding upon all of the defendants joined in the action.") (emphasis added).  Island Preservation acknowledged the existence of an easement from and to the property known as the Landing in a 1996 Mutual Release and Settlement Agreement.  The present action only upholds the validity of the 1984 order and does not in any way limit Fenwick Properties' easement.  Thus, Fenwick Properties' due process rights were not violated. 

Fenwick Properties also asserts it has standing in this appeal because the trial court's order adversely impacts its right to construct a dock on the Marsh Property.  In February of 2005, the Department of Health and Environmental Control (DHEC), Bureau of Ocean and Coastal Resource Management (OCRM), issued Fenwick Properties a dock permit authorizing it to construct a dock on Island Preservation's property.  Island Preservation appealed the permit to the Administrative Law Court, which stayed the appeal pending the resolution of the present action, stating the issue of ownership of the marsh was "paramount." 

Although Fenwick Properties does not state why the issue of title is so important to its dock permit, Island Preservation explains Fenwick Properties will need its permission before it can build a dock across the Marsh Property if Island Preservation is the fee simple owner.  See 23A S.C. Code Ann. Regs. 30-2 (I) (Supp. 2009) (requiring a deed, lease, or other instrument from the critical area landowner that would allow construction of the proposed project, or written permission from such owner); Lowcountry Open Land Trust v. State, 347 S.C. 96, 111, 552 S.E.2d 778, 786 (Ct. App. 2001) ("[I]f ownership vests in private hands, an adjacent landowner desiring to build on tidelands must obtain the express consent of the fee simple owner.") 

The supreme court and this court have both recognized that a party does not necessarily have standing in one action merely because that action may affect its interest in another action.  See e.g., Ex Parte Gov't Employee's Ins. Co., 373 S.C. 132, 644 S.E.2d 699 (2007); Powell.  In Ex Parte Government Employee's Insurance Company, Ronnie Cooper claimed he was entitled to stack underinsured motorist coverage provided by Government Employee's Insurance Company (GEICO) to Yolanda Goethe, whom he claimed was his common-law wife.  373 S.C. at 134, 644 S.E.2d at 700.  Cooper filed an action in family court seeking an order validating his common marriage to Goethe.  Id.  GEICO moved for joinder and to intervene in the family court action.  Id.

The supreme court affirmed the family court's denial of the motions.  Id. at 139, 644 S.E.2d at 703.  The court recognized the existence of a common law marriage may have impacted GEICO's liability to Cooper and thus GEICO may have been affected by the outcome of the family court action.  Id. at 136, 644 S.E.2d at 701.  However, it found GEICO's interest was in the financial implications of the family court's decision, which was "merely tangential" and "peripheral" to the family court action.  Ex Parte Gov't Employee's Ins. Co., 373 S.C. at 136-39, 644 S.E.2d at 701-02.  It held this interest was insufficient to warrant GEICO's intervention in the family court action.  Id.  

In Powell, a minor brought an action through his conservator and his mother against his aunt seeking the return of life insurance proceeds his aunt had converted.  379 S.C. at 442, 665 S.E.2d at 240.  The minor also named as a defendant Bank of America, where the aunt had deposited the funds in her own account and purchased certificates of deposit rather than placing the funds in a restricted account as ordered by the probate court.  Id. at 441-42, 665 S.E.2d at 239-40.  The minor's mother, who had previously sued the aunt for conversion of the funds and had received a judgment against her, moved to intervene and for interpleader of funds from the aunt which had been deposited with the clerk of court.  Id. at 441-42, 665 S.E.2d at 240.  After a contested hearing, the trial court apportioned the funds between the minor and his mother.  Id. at 443, 665 S.E.2d at 240.  This court dismissed Bank of America's appeal of this order holding the bank had no interest in the subject matter of the apportionment of the escrowed funds.  Id. at 443, 665 S.E.2d at 241.  We rejected Bank of America's argument it had standing because if all of the interpleaded funds were allocated to the minor, the minor's damages would be reduced, and thus, Bank of America's potential liability would be reduced.  Powell, at 445, 665 S.E.2d at 241.  The court noted  "Not every practical concern equates to the legal interest required for standing."  Id. at 445, 665 S.E.2d at 241.  We found Bank of America's interest in maximizing the minor's share of the interpleaded funds was speculative and contingent.  Id.

The order on appeal concerns only the validity of the 1984 order issued in an action in which Fenwick Properties was not a party.  The order in no way limits or otherwise affects Fenwick Properties' easement over Island Preservation's property.  Fenwick Properties' interest in the administrative action of whether it would have to obtain Island Preservation's permission to build its dock is "merely tangential" and "peripheral" to the present appeal.  Accordingly, we find Fenwick Properties is not a party aggrieved by the order and dismiss the appeal. 


HUFF, THOMAS, and LOCKEMY, JJ., concur. 

[1] Fenwick Properties argues the trial court should have denied summary judgment because Island Preservation had failed to respond to any of Fenwick Properties' discovery requests.  The trial court did not rule on this issue in its original order and Fenwick Properties failed to request a ruling in its motion to alter or amend.  Accordingly, this argument is not properly before this court.  See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ("If the losing party has raised an issue in the lower court, but the court fails to rule upon it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review.").