THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal from Richland County
Honorable Larry R. Patterson, Circuit Court Judge
Case No. 2003-CP-40-05079
The State of South Carolina, ........................................... Respondent,
v.
Colie G. Martin, Jr. and Colie G. Martin, III, ................... Appellants.
REPLY BRIEF
HAMILTON & ASSOCIATES, LLC
Brian C. Gambrell
1531 Laurel Street
Columbia, South Carolina 29201
Telephone (803) 779-0700
Facsimile (803) 779-7006
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
Table of Contents............................................................................................................................. i
Table of Authorities.......................................................................................................................... ii
Argument........................................................................................................................................... 1
I. The instant appeal is not moot..................................................................................................... 1
II. Res judicata does not bar instant appeal................................................................................... 4
III. Respondent’s statutory construction ignores
provisions
which
contradict their interpretation case........................................................................................ 4
A. Presence of “or” within text of S.C. Code Ann. § 47-1-150(C)
does not remove requirement to have a hearing in case of seizure of animals........................... 4B. Respondent ignores S.C. Code Ann. . § 47-1-150(G) ............................................................. 5
C. Respondent’s interpretation of S.C. Code Ann. § 47-1-150(C)
is contradicted by Respondent’s own interpretation of
S.C. Code Ann. § 47-1-150(F) .......................................................................................................... 7D. Respondent interpretation of S.C. Code Ann. § 47-1-150 |
would render statute unconstitutional .............................................................................................. 9
IV. Equity does not bar return of horses to appellant................................................................................ 10
A. State’s Unclean Hands argument lacks basis in law or fact............................ 10
B. State’s Unjust Enrichment argument lacks basis in law or fact....................... 10
V. Examination of other jurisdictions do not support appellant’s position............................................... 11
A. Florida statute requires hearing after seizure .................................................. 11
B. Tennessee case and statute distinguishable from instant case .................... 13
VI. Instant appeal is not interlocutory............................................................................................................ 13
Conclusion....................................................................................................................................................... 15
TABLE OF AUTHORITIES
South Carolina Cases:
Baldwin Constr. Co. v. Graham, 593 S.E.2d 146, 357 S.C. 227 (2004)...................................... 13
Buckley v. Shealy, 370 S.C. 317, 635 S.E.2d 76 (2006)............................................................... 10
Burns v. State Farm Mut.
Auto. Inc., 297 S.C. 520, 522,
377 S.E.2d 569,
570 (1989).................................................................................................... 5
Collins Music Co., Inc. v.
IGT, 365 S.C. 544, 549,
619 S.E.2d 1, 3
(S.C. Ct. App. 2005).................................................................................. 3
Curtis v. State, 345 S.C. 557, 567-68, 549 S.E.2d 591, 596 (2001)....................................... 1, 3
First Union Nat’l Bank of
S.C. v. Soden, 333 S.C. 554, 568-69,
511 S.E.2d 372,
379 (Ct.App. 1998)................................................................................. 10
Gibbs v. Kimbrell, 311 S.C. 261, 267, 428 S.E.2d 725, 729 (Ct.App. 1993)........................... 14
Hardaway Concrete Co.,
Inc. v. Hall Contracting Corp.,
374 S.C. 216, 647
S.E.2d 488 (Ct. App. 2007)............................................................... 10
Henderson v. Evans, 268 S.C. 127, 132, 232 S.E.2d 331 (1977)................................................ 9
Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992)........................................... 5, 6
Hitachi Data Sys. Corp. v.
Leatherman, 309 S.C. 174, 178,
420 S.E.2d 843,
846 (1992)................................................................................................. 6
Ingram v. Kasey’s Assocs., 340 S.C. 98, 107, 531 S.E.2d 287, 292 (2000)........................... 10
Joubert v. South Carolina
Dep’t of Soc. Servs., 341 S.C. 176,
192-93,
534 S.E.2d 1,
9-10 (Ct. App. 2000).................................................................................. 10
Laurens County School
Districts 55 and 56 v. Cox, 308 S.C.
171,
417 S.E.2d 560
(1992)......................................................................................................... 6
Mathis v. South Carolina
State Highway Dep’t., 260 S.C. 344,
346,
195 S.E.2d 713,
715 (1973)), cert. denied, 535 U.S. 1074,
122 S.Ct. 1954,
152 L.Ed2d 856 (2002)............................................................................. 1
Moore v. Timmerman, 276 S.C. 104, 276 S.E.2d 290 (1981)...................................................... 9
Multiplex Building Corp. v. Lyles, 268 S.C. 577, 235 S.E.2d 133 (1977)..................................... 8
Myers v. Real Property at
1518 Holmes Street, 306 S.C. 232,
411 S.E.2d 209
(1991)....................................................................................................... 9
Palmetto Homes, Inc. v.
Bradley, 357 S.C. 485, 493,
593 S.E.2d 480,
485 (S.C. Ct. App. 2004)....................................................................... 4
Parker v. Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994)......................................... 14
Pee Dee Elec. Co-Op, Inc.
v. Carolina Power & Light Co.,
279 S.C. 64, 66,
301 S.E.2d 761, 762 (1983).................................................................. 1
Plum Creek Dev. Co. v.
City of Conway,
334 S.C. 30, 34,
512 S.E.2d 106, 109 (1999).................................................................. 4
Preferred Sav. and Loan
Ass’n. Inc. v. Royal Garden Resort, Inc.,
295 S.C. 268, 368
S.E.2d 78 (1988).................................................................................. 9
Sabb v. South Carolina
State University, 350 S.C. 416,
567 S.E.2d 231
(2002)....................................................................................................... 13
Sauner v. Pub. Serv. Auth.
of South Carolina, 354 S.C. 397,
581 S.E,.2d 161
(2003)........................................................................................................ 11
Shelley Construction Co.
v. Sea Garden Homes, Inc.,
287 S.C. 24, 336
S.E.2d 488 (Ct. App. 1985)................................................................. 8,
9
Stanley Smith & Sons
v. Limestone College, 283 S.C. 430,
435 n. 1,
322 S.E.2d 474,
478 n.1 (Ct.App. 1984)........................................................................... 10
State v. Cox, 287 S.C. 260, 335 S.E.2d 809 (Ct.App. 1985).......................................................... 2
State v. Gordon, 356 S.C. 143, 152, 588 S.E.2d 105, 110 (2003)................................................ 6
State ex rel. McLeod v.
Montgomery, 244 S.C. 308, 314,
136 S.E.2d 778,
782 (1964)................................................................................................... 6
Waters v. South Carolina
Land Res. Conservation Comm’n,
321 S.C. 219,
227, 467 S.E.2d 913, 917-18 (1996)........................................................... 1
Woodward v. Westvaco Corp., 319 S.C. 240, 242, 460 S.E.2d 392, 393 (1995)..................... 13
Cases from Other Jurisdictions
Florida Cases
Pet Fair, Inc. v. Human
Soc. of Greater Miami, 583 So.2d 407
(Fla.3rd Dist.
Ct. App. 1991)............................................................................................ 12
Brinkley v. County of Flagler, 769 So.2d 468 (5th Dist. Ct. App., 2000)................................ 12
Tennessee Cases
State v. Webb, 140 S.W.3d 799 (Tenn. Ct. App. 2003).......................................................... 13
United States Supreme Court
Federal Communications
Commission v. ITT World Communications, Inc.,
466 U.S. 463, 104
S.Ct. 1936, 80 L.Ed.2d 480 (1984).............................................. 14
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).................. 2
United States v. Morton
Salt Co., 338 U.S. 632, 70 S.Ct. 357,
94 L.Ed. 401
(1950).......................................................................................................... 14
Other Sources:
South Carolina Code Ann. § 14-3-330........................................................................................ 13
South Carolina Code Ann. § 47-1-100, et seq............................................................................. 8
South Carolina Code Ann. § 47-1-150.......................................................... 2, 3, 4, 5, 6, 7, 9, 14
South Carolina Code Ann. § 47-1-150(C) ............................................................................ 4, 5, 7
South Carolina Code Ann. § 47-1-150(C)(1).................................................................................. 5
South Carolina Code Ann. § 47-1-150(C)(2).............................................................................. 5, 7
South Carolina Code Ann. § 47-1-150(F)................................................................................... 7, 8
South Carolina Code Ann. § 47-1-150(F)(1)................................................................................... 7
South Carolina Code Ann. § 47-1-150(F)(2)................................................................................... 7
South Carolina Code Ann. § 47-1-150(G).............................................................................. 5, 6, 8
South Carolina Code Ann. § 47-1-170............................................................................................ 7
Fla. Stat. Ann. § 828.073......................................................................................................... 11, 12
Tenn. Code Ann. § 39-14-201, et seq......................................................................................... 13
Tenn. Code Ann. § 39-14-201(2).................................................................................................. 13
Tenn. Code Ann. § 39-14-202(d).................................................................................................. 13
Tenn. Code Ann. § 39-14-210....................................................................................................... 13
ARGUMENT
I. THE INSTANT APPEAL IS NOT MOOT
The instant appeal is not Moot because it presents a justiciable controversy over the proper procedure for the seizure of animals and their return. An issue that is contingent, hypothetical, or abstract is not ripe for judicial review. Waters v. South Carolina Land Res. Conservation Comm'n, 321 S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) Stated differently, “[a] justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.” Id. (quoting Pee Dee Elec. Co-Op, Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983))."A matter becomes moot "when judgment, if rendered, will have no practical legal effect upon [the] existing controversy. This is true when some event occurs making it impossible for [the] reviewing Court to grant effectual relief." Curtis v. State, 345 S.C. 557, 567-68, 549 S.E.2d 591, 596 (2001) (alteration in original) (quoting Mathis v. South Carolina State Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973)), cert. denied, 535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002).
The Respondent glosses over the specific salient fact that Appellants were found guilty of only four counts and not guilty on 56 counts of mistreatment of animals and animal cruelty. Thus, the continued retention of the Appellants’ horses by SCARE on behalf of the State of South Carolina remains an undecided case and controversy. The Appellants do not seek the return of the horses which were forfeited by their conviction, but instead seek the return of their horses upon which their 56 acquittals were premised. The trial court in the General Sessions matter never ordered the return of those horses.
Respondent’s brief also fails to make the critical distinction between the initial seizure of the horses to gather evidence for possible criminal prosecution and the failure to later hold a hearing later to determine whether the State was required to return the horses to the Appellants as required by S.C. Code Ann. § 47-1-150. The initial seizure of the horses by the State was lawful because the State initially complied with S.C. Code Ann. § 47-1-150 by obtaining a warrant, and the warrant was properly served. The “fruit of the poisonous tree” doctrine provides that evidence must be excluded if it would not have come to light but for the illegal actions of the police, and the evidence has been obtained by the exploitation of that illegality. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the challenged evidence is admissible if it was obtained from a lawful source independent of the illegal conduct. State v. Cox, 287 S.C. 260, 335 S.E.2d 809 (Ct.App.1985). Thus, the evidence gathered (the condition of the 60 horses in question) in the initial seizure was proper and could not be suppressed. However, the Appellants’ challenge in the instant action that a hearing was required after the seizure to determine whether Appellants should regain possession of their animals pursuant S.C. Code Ann. § 47-1-150. It is clear the legislature has made a distinction between gathering evidence and the possession of the animals by the enactment of S.C. Code Ann. § 47-1-150, and these two issues are separate and distinct one from another.
Thus, there will be two practical effects by action of this court: an interpretation of S.C. Code Ann. § 47-1-150 and the return of Appellants’ 56 horses. The interpretation of S.C. Code Ann. § 47-1-150 has grave impact upon the instant appeal and a civil action pending in Richland County, Martin v. The State of South Carolina, et. al., 2006-CP-40-4064, which is challenging the continued possession of Appellants’ horses1. Additionally, the Court is also asked to review the Magistrate’s refusal to order the immediate return of the Appellants’ horses. Therefore, the instant appeal is not moot.
In civil2 cases, there are also three exceptions to the mootness doctrine: (1) an appellate court can retain jurisdiction if the issue is capable of repetition yet evading review, (2) an appellate court can decide cases of urgency to establish a rule for future conduct in matters of important public interest, and (3) if the decision by the trial court can affect future events or have collateral consequences to the parties, the appellate court can take jurisdiction. Curtis at 568, 549 S.E.2d at 596." Collins Music Co., Inc. v. IGT, 365 S.C. 544, 549, 619 S.E.2d 1, 3 (S.C. Ct. App. 2005). The Appellants easily meet these additional tests because the proper interpretation of S.C. Code Ann. § 47-1-150 is certainly capable of repetition but evading review. For example, the Attorney General and various law enforcement agencies have stated their intention to vigorously pursue animal cruelty offenders to eliminate the practice of dogfighting. Therefore, the proper conduct of seizures of citizens’ personal property and hearing by the magistrates court is a matter of important public interest and will obviously be repeated. Finally, this decision has collateral consequences for Appellants’ ongoing replevin action against the SCARE and its agents.
II. RES JUDICATA DOES NOT BAR INSTANT APPEAL
"Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties. Under the doctrine of res judicata, ‘[a] litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit.' To establish res judicata, the defendant must prove the following three elements: (1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit. Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999); Palmetto Homes, Inc. v. Bradley, 357 S.C. 485, 493, 593 S.E.2d 480, 485 (S.C. Ct. App. 2004).
As a matter of timing, the instant case is not a “subsequent action” because the instant action actually predates Appellants’ criminal prosecution. Further, the issue of Respondents’ failure to hold a hearing pursuant to S.C. Code Ann. § 47-1-150 was never litigated in Appellants’ criminal matter. As discussed supra, the initial seizure of Appellants’ horses was in accordance with S.C. Code Ann. § 47-1-150. However, the Respondent’s failure to notice a subsequent hearing pursuant to S.C. Code Ann. § 47-1-150 was irrelevant to the criminal trial.
III. RESPONDENT’S STATUTORY CONSTRUCTION IGNORES PROVISIONS WHICH CONTRADICT THEIR INTERPRETATION
A. Presence of “or” within text of S.C. Code Ann. § 47-1-150(C) does not remove requirement to have a hearing in case of seizure of animals.
The Court should reject Respondent’s interpretation of S.C. Code Ann. § 47-1-150(C) because the text of the statute makes a clear distinction between seizure and an order to provide certain care. Thus, the General Assembly’s use of “or” in the body of S.C. Code Ann. § 47-1-150(C) does not eliminate the requirement to hold a hearing if animals are seized and removed. The statute itself makes a distinction between the two scenarios within S.C. Code Ann. § 47-1-150(C), and it uses different phraseology when it refers to those sections. S.C. Code Ann. § 47-1-150(C) uses the term “seizure” only in reference to the scenario outlined in S.C. Code Ann. § 47-1-150(C)(1) meaning the removal of animals pursuant to a search warrant without an arrest. S.C. Code Ann. § 47-1-150(C) uses the term “an order to provide certain care” when it refers to an order to the owner without removal. This is obvious in the later portion of S.C. Code Ann. § 47-1-150(C)(2):
and shall forthwith petition the magistrate or municipal judge of the county or municipality wherein the animal is found for a hearing, to be set within twenty-four hours after the date of seizure of the animal or issuance of the order to provide care and held not more than two days after the setting of such date, to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal. (Emphasis added)
The “or” contained at the end of S.C. Code Ann. § 47-1-150(C)(1) does not eliminate the need for a hearing because the remaining portion of S.C. Code Ann. § 47-1-150(C)(2) specifically says that a hearing is required in the instance of either a removal or an order leaving in the possession of the owner.
B. Respondent ignores S.C. Code Ann. . § 47-1-150(G)
Respondent’s reading of S.C. Code Ann. § 47-1-150 ignores the contradictory provisions contained within S.C. Code Ann. § 47-1-150(G). Statutes that are part of the same act must be read together. Burns v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 522, 377 S.E.2d 569, 570 (1989). Statutes must be read as a whole and sections that are part of the same general statutory scheme must be construed together and each given effect, if reasonable. Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992). A statute should not be construed by concentrating on an isolated phrase. Laurens County School Districts 55 and 56 v. Cox, 308 S.C. 171, 417 S.E.2d 560 (1992). Each section of a statute should be given effect if it can be done by any reasonable construction. State v. Gordon, 356 S.C. 143, 152, 588 S.E.2d 105, 110 (2003). The words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). The language must also be read in a sense which harmonizes with its subject matter and accords with its general purpose. Id.
Respondent attempts to read into the statute a distinction between removal seizures and on-site seizures which is not evident in the statute, distinguishing the need for a post-seizure hearing. However, the State’s position is contradicted by the statute itself.
S.C. Code Ann. § 47-1-150(G) provides as follows:
(G) If the court determines that the owner is able to provide adequately for, and have custody of the animal, the order shall provide that the animal in possession of the officer or agent be claimed and removed by the owner within seven days after the date of the order.
The import of S.C. Code Ann. §§ 47-1-150(G) to Respondent’s argument is obvious. If the seizures referenced in the whole of the statute were solely on-site seizures, then S.C. Code Ann. § 47-1-150(G) would become superfluous. The legislature intends to accomplish something by its choice of words, and not do a futile thing. State ex rel. McLeod v. Montgomery, 244 S.C. 308, 314, 136 S.E.2d 778, 782 (1964). Instead, the only logical reading of S.C. Code Ann. § 47-1-150(G) is to provide a mechanism to return animals removed by the State to be returned to their owners. The only hearing ordered or required in S.C. Code Ann. § 47-1-150 is the hearing mentioned in the second part of S.C. Code Ann. § 47-1-150(C)(2) . There would no need to return an animal to owner’s possession if a hearing to determine adequate care only occurs in an on-site seizure. Therefore, the only logical interpretation that allows the whole of S.C. Code Ann. § 47-1-150 to be given meaning is that a hearing is always required under S.C. Code Ann. § 47-1-150.
|
C. |
Respondent’s interpretation of S.C. Code Ann. § 47-1-150(C) is contradicted by Respondent’s own interpretation of S.C. Code Ann. § 47-1-150(F) |
The Respondent, while attempting to deny the right of an owner of removed animals to a hearing, recognizes later that S.C. Code Ann. § 47-1-150(F) clearly indicates an owner of removed animals is entitled to a hearing. The Respondent, after strenuously denying the opposite, concedes that S.C. Code Ann. § 47-1-150(F) provides that an owner is entitled to the return of his animals to determine if the owner is capable of providing adequate care. S.C. Code Ann. § 47-1-150(F)(1) provides that the owner is entitled to return after paying the costs of care; S.C. Code Ann. § 47-1-150(F)(2) directs the State or its designate to provide care until the animal is forfeited upon a conviction pursuant to S.C. Code Ann. § 47-1-170. The hearing referenced in S.C. Code Ann. . § 47-1-150(F)(1) is the same hearing in S.C. Code Ann. § 47-1-150(C), not a separate post-conviction hearing as suggested by Respondent.
The mandatory payment of care referenced in S.C. Code Ann. § 47-1-150(F) is limited to at most eleven days. The following example shows how the S.C. Code Ann. § 47-1-150 was intended to work. The State petitions for a seizure warrant pursuant to S.C. Code Ann. § 47-1-150 and seizes an animal. The State has 24 hours to notice a hearing, and hearing must necessarily occur within 72 hours after the seizure and removal pursuant to S.C. Code Ann. § 47-1-150(C). The owner appears at the hearing and convinces the judge that owner can care for the animal. Pursuant to S.C. Code Ann. § 47-1-150(G), the owner must reclaim the animal within seven days of the order of the Court which must be entered on the day of the hearing. Thus, the maximum retention by the State is necessarily nine days, and it can be as few as three days. It is only the circumstance where the court determines the owner is judged to be unable to care for the animal is the animal retained until trial on charges of animal cruelty. This example is the only logical way the statute can be read so that all of the provisions are harmonized together.
It is important to note that Respondent also concedes that it seized the horses on August 22, 2003, but its designate, S.C.A.R.E., did not begin rendering “emergent veterinary care, food, supplements, and rehabilitative care until August 31, 2003.” Respondent’s Brief, pg. 2. This means the care which Respondent states should have been paid before the return occurred more than a week after the animals would have been returned had Respondents complied with the statute.
Furthermore, no payment would be required under S.C. Code Ann. § 47-1-150(F) because the Respondent and S.C.A.R.E. did not comply with the statutes to perfect the required payment. Although there is no case directly on point, the required payment constitutes a lien on the animal. It is axiomatic that one must comply with a statute creating the lien to enjoy the benefits of the lien. Although there are no cases dealing with the lien created under S.C. Code Ann. § 47-1-100, et. seq., there is ample case law on another statutorily created lien on property: mechanic’s liens. Like the animal care lien, mechanic's liens in South Carolina are purely statutory. Multiplex Building Corp. v. Lyles, 268 S.C. 577, 235 S.E.2d 133 (1977). As purely statutory creations, mechanic’s liens may only be acquired and enforced in accordance with the statutes creating them. Shelley Construction Co. v. Sea Garden Homes Inc., 287 S.C. 24, 336 S.E.2d 488 (Ct.App.1985). A failure to take any of the enumerated steps results in the lien against the property being dissolved. Preferred Sav. and Loan Ass'n, Inc. v. Royal Garden Resort, Inc., 295 S.C. 268, 368 S.E.2d 78 (1988); Shelley, 287 S.C. 24, 336 S.E.2d 488. The Respondent or S.C.A.R.E. never complied with the statute in noticing the hearing within the prescribed deadline. Therefore, any lien or amount owed should be dissolved and the horses immediately returned.
| D. | Respondent interpretation of S.C. Code Ann. § 47-1-150 is would render statute unconstitutional |
Additionally, the Respondent’s interpretation of S.C. Code Ann. § 47-1-150 leads to an absurd result and is offensive to the notions of due process. According to the Respondent’s theory, the State could seize and remove animals without ever holding a hearing, but the State is required to hold a hearing if the animals are left in the owners possession. A person’s property cannot be seized without due process of law. Moore v. Timmerman, 276 S.C. 104, 276 S.E.2d 290 (1981). Due process can be satisfied with either a pre-seizure or post-seizure hearing. Myers v. Real Property at 1518 Holmes Street, 306 S.C. 232, 411 S.E.2d 209 (1991). The Respondent’s reading is constitutionally infirm because it allows for seizure of property without ever allowing the owner to recover his property at hearing. A possible constitutional construction of a statute must prevail over an unconstitutional interpretation. Henderson v. Evans, 268 S.C. 127, 132, 232 S.E.2d 331 (1977). Thus, the only way, as in the instant case, for an owner to seek the return of his property is the instigation of a civil action at his own expense to force the return of his property.
IV. EQUITY DOES NOT BAR RETURN OF HORSES TO APPELLANT
A. State’s Unclean Hands argument lacks basis in law or fact
The State does not cite to any supporting authority for its argument, rendering the issue abandoned on appeal. The failure to provide argument or supporting authority for an issue renders it abandoned. Hardaway Concrete Co., Inc. v. Hall Contracting Corp., 374 S.C. 216, 647 S.E.2d 488 (Ct. App. 2007); Joubert v. South Carolina Dep't of Soc. Servs., 341 S.C. 176, 192-93, 534 S.E.2d 1, 9-10 (Ct.App.2000).
Further, the doctrine of unclean hands forbids Respondent from invoking an equitable defense. The doctrine of unclean hands will preclude a litigant from receiving equity if that litigant acted unfairly to the detriment of other party. Buckley v. Shealy, 370 S.C. 317, 635 S.E.2d 76 (2006); Ingram v. Kasey's Assocs., 340 S.C. 98, 107, 531 S.E.2d 287, 292 (2000). First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 568-69, 511 S.E.2d 372, 379 (Ct.App.1998). The Respondents, by their failure to act justly towards the Appellant, have not done equity to the Appellants. Therefore, Respondents are not entitled to equitable relief.
B. State’s Unjust Enrichment argument lacks basis in law or fact
The Respondent does not offer any support for its argument the horses should not be returned to Appellant, and the failure to provide supporting authority should render it abandoned. Hardaway, supra; Joubert; supra. “Restitution is a remedy designed to prevent unjust enrichment.” Stanley Smith & Sons v. Limestone College, 283 S.C. 430, 435 n. 1, 322 S.E.2d 474, 478 n. 1 (Ct.App.1984). To recover on a theory of restitution, the plaintiff must show that: (1) he conferred a non-gratuitous benefit on the defendant, (2) the defendant realized some value from the benefit, and (3) it would be inequitable for the defendant to retain the benefit without paying the plaintiff for its value. Sauner v. Pub. Serv. Auth. of South Carolina, 354 S.C. 397, 581 S.E.2d 161 (2003).
The Defendants have not rendered a “non-gratuitous” benefit. The Respondent is admittedly not in possession of the Appellants’ horses, but instead, S.C.A.R.E. was placed in possession of the horses by the Respondent. Further, Respondent undertook the care of Appellants’ horses by the force of a warrant, not because Appellants asked them to. Additional, Appellants have not “realized some value from the benefit” because of the Respondents. It was hotly disputed at the criminal trial whether these animals were being mistreated and whether their condition has improved in S.C.A.R.E.’s possession. The jury that heard this case obviously sided with the Appellants because the jury returned non-guilty verdicts on 54 counts. Further, the benefit conferred is upon the Appellant, not Appellants property. Appellants have been without the use, enjoyment, and possible profit from access to their horses. Respondents’ makes an assertion that the horses production of offspring is an admission by Appellants of Respondents’ good care; a careful reading of the record reveals that some of Appellants’ mares were pregnant or had recently given birth before their seizure by Respondent. Therefore, the Appellants have not been “enriched” at all by Respondents’ continued retention of Appellants horses.
V. EXAMINATION OF OTHER JURISDICTIONS DO NOT SUPPORT APPELLANT’S POSITION
A. Florida statute requires hearing after seizure
The Florida statute and case law actually supports Appellants’ position rather than contradicts it. The relevant portion of Fla. Stat. Ann. §828.073, is as follows:
(2) Any law enforcement officer or any agent of any county or of any society or association for the prevention of cruelty to animals appointed under the provisions of § 828.03 may:
(a) Lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location, or
(b) Order the owner of any animal found neglected or cruelly treated to provide certain care to the animal at the owner's expense without removal of the animal from its present location,
and shall forthwith petition the county court judge of the county wherein the animal is found for a hearing, to be set within 30 days after the date of seizure of the animal or issuance of the order to provide care and held not more than 15 days after the setting of such date, to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal. The hearing shall be concluded and the court order entered thereon within 60 days after the date the hearing is commenced. No fee shall be charged for the filing of the petition. Nothing herein is intended to require court action for the taking into custody and making proper disposition of stray or abandoned animals as lawfully performed by animal control agents.
A clear reading of Pet Fair, Inc. v. Humane Soc. of Greater Miami, 583 So.2d 407 (Fla. 3rd Dist. Ct. App. 1991) shows that a post-seizure hearing was held by the Court to determine whether the owner was entitled to the return of their animals. See also Brinkley v. County of Flagler, 769 So.2d 468 (5th Dist. Ct. App., 2000) The trial court in Pet Fair held a hearing within the prescribed deadlines and found that the owner was able to take care of their animals. However, the owner in Pet Fair elected not seek the return of their animals. The holding in Pet Fair stands for the proposition that the Humane Society was unable to keep the animals and receive money for their care. The critical distinction between Pet Fair and the instant case is obvious: the authorities in Pet Fair complied with the Florida statute and sought a post-seizure hearing. The similarities between the Florida statute and South Carolina are striking. Both use the “or” in the middle and then reference the hearing requirement after an “and” in the second part. The differences between the statutes are the Florida statute does not require the officer to get a warrant prior to seizure, and it gives the state more time to notice the hearing, and the court more time to make its ruling on the owners’ fitness.
B. Tennessee case and statute distinguishable from instant case
The relevant Tennessee statute, Tenn. Code Ann. § 39-14-201, et seq., allows only the entry and giving of care to non-livestock animals by human societies. Unlike the relevant South Carolina statutes, the Tennessee statute only allows seizure of animal incident to an arrest for animal cruelty. Tenn. Code Annotated section 39-14-202(d). The statute allows humane societies to make arrests under this statute only for non-livestock animals. Tenn. Code Ann. § 39-14-210. Livestock animals are defined by the statute to include “all equine.” Tenn. Code Ann. § 39-14-201(2). Therefore, the case cited by Appellant, State v. Webb, 140 S.W.3d 799 (Tenn. Ct. App. 2003), is easily distinguishable because Webb dealt only with the non-livestock portions of Tenn. Code Ann. § 39-14-201, et seq.
VI. INSTANT APPEAL IS NOT INTERLOCUTORY
"Absent some specialized statute, determining if an interlocutory order is immediately appealable depends on whether the order falls within one of the several categories of appealable judgments, decrees, or orders listed in S.C.Code Ann. § 14-3-330 (1976 & Supp. [2002] )." Baldwin Constr. Co. v. Graham, 593 S.E.2d 146, 357 S.C. 227 (2004); Woodard v. Westvaco Corp., 319 S.C. 240, 242, 460 S.E.2d 392, 393 (1995), overruled on other grounds Sabb v. South Carolina State University, 350 S.C. 416, 567 S.E.2d 231 (2002).
The Appellants appeal is not interlocutory because Judge Davis’s proposed remedy, a hearing 30 days later, was outside of the scope of the statute authorizing the seizure of Appellants’ horses. The remedy for failure to hold a hearing pursuant to S.C. Code Ann. § 47-1-150 was the immediate return of the horses. Judge Davis ruled there should have been a hearing after the seizure, but Judge Davis attempted to order a hearing which was clearly outside the scope of S.C. Code Ann. § 47-1-150. It is axiomatic that a court cannot order ultra vires relief. Federal Communications Commission v. ITT World Communications, Inc., 466 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984); United States V. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). Judge Davis could not order a hearing under S.C. Code Ann. § 47-1-150 because the time for Respondent to comply with S.C. Code Ann. § 47-1-150 had long past. Therefore, Judge Davis’s refusal to order the immediate return of Appellants’ horses was effectively a final order which could be appealed.
Further, Appellant did
not waive the hearing because it was the Respondent who failed to notice the
hearing within the statutorily prescribed deadline. Waiver is the “voluntary
and intentional relinquishment or abandonment of a known right,” Parker v.
Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994); Gibbs v. Kimbrell,
311 S.C. 261, 267, 428 S.E.2d 725, 729 (Ct.App.1993). It was the Respondent
who waived the hearing by failing to notice the hearing within the statutory
prescribed deadline. S.C. Code Ann. § 47-1-150 clearly places the onus of
scheduling on the Respondent, and Respondent failed to act. Once the
prescribed time had passed, the magistrate should have ordered the immediate
return of Appellants’ horses.
CONCLUSION
For the foregoing reasons, the Appellants respectfully request that the Court should REVERSE the Circuit Court and order the immediate return of Appellants’ 56 seized horses and their progeny without delay.
Respectfully submitted,
HAMILTON & ASSOCIATES, LLC
Brian C. Gambrell
1531 Laurel Street
Columbia, South Carolina 29201
Telephone (803) 779-0700
Facsimile (803) 779-7006
ATTORNEYS FOR APPELLANTS
Columbia, South Carolina
, 2007
1The Appellant only seeks the return of the horses upon which 56 acquittals were rendered, and the progeny of those horses. The Appellant does not seek the return of the horses upon which they were found guilty.
2The Clerk’s office has consistently labeled the instant appeal as a “criminal” matter. However, the instant action was filed and has proceeded as a civil action through the lower courts.