THE STATE OF SOUTH CAROLINA
In The Court of Appeals

APPEAL FROM  RICHLAND COUNTY
Court of Common Pleas

Larry R. Patterson, Circuit Court Judge

Case No. 03-CP-40-5079 

The State of South Carolina,............................................. Respondent,

v.

Colie G. Martin, Jr. and Colie G. Martin, III,.................. Appellant.

_______________________________

RESPONDENT'S FINAL BRIEF

_______________________________

NELSON MULLINS RILEY & SCARBOROUGH LLP
John F. Kuppens (SC Bar No. 012948)
A. Mattison Bogan (SC Bar No. 72629)
1320 Main Street / 17th Floor
Post Office Box 11070 (29211-1070)
Columbia, SC  29201
(803) 799-2000

OF COUNSEL:
Jill C. Andrews (SC Bar No. 064913)
Assistant Solicitor
Fifth Circuit Solicitor’s Office
PO Box 192
1701 Main Street 
Columbia, SC 29202
(803) 576-1861

Attorneys for Respondent The State of South Carolina

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................. iii

STATEMENT OF ISSUES ON APPEAL....................................................................... 3

STATEMENT OF THE CASE......................................................................................... 3

STANDARD OF REVIEW............................................................................................... 3

LAW / ANALYSIS.............................................................................................................. 3

I.  This Appeal Should Be Dismissed Because It Is Moot............................................. 3

II.  This Appeal Should Be Dismissed Because It Is Barred By The Doctrine Of Res Judicata.            3

III.  This Appeal Should Be Dismissed on the Ground of Waiver................................... 3

IV.  The Circuit Court Correctly Ruled that the Appellants’ Horses Were Properly Seized Pursuant to S.C. Code Ann. § 47-1-150(A) or (C)(1), and that a Post-Seizure Hearing Is Not Required.       3

V.  Appellants Are Not Entitled to the Return of Any of the Subject Horses Unless (1) The Court Adjudges Them Able to Adequately Provide for, and Have Custody, of Them, and (2) They Pay Restitution and Satisfy the Lien for the Costs Incurred in the Care of the Horses 3

A.	Costs Related to the Horses as to Which Appellants Were Convicted of a Violation of Chapter 1 of Title 47.................................................................................... 3
B.	The Issue of the Return of the Horses Was Not Decided in the Order of the Circuit Court from Which this Appeal Was Taken, and Is Thus Not Properly Before this Court.   3
C.	Costs Related to the Horses as to Which Appellants Were Not Convicted of a Violation of Chapter 1 of Title 47.................................................................................... 3
D.	Other Jurisdictions Having Statutes Similar to § 47-1-150 Agree with Respondent’s Reading of § 47-1-150.................................................................................. 3

VI.  Equitable Reasons Also Preclude the Return of the Subject Horses to Appellants. 3

A.  The Doctrine of Unclean Hands Bars Appellants from Gaining Custody of the Horses.      3

B.  A Court Cannot Allow a Party to Profit from a Crime............................... 3

C.  Unjust Enrichment Bars the Return of the Horses.................................... 3

CONCLUSION............................................................................................................. 3

TABLE OF AUTHORITIES

Cases

Adkins v. Varn, 312 S.C. 188, 439 S.E. 2d 822 (1993).................................................... 17

Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993)................................................ 17

Bogart v. Chappell, 396 F.3d 548 (4th Cir. 2005)............................................................. 24

Burns v. Wannamaker, 281 S.C. 352, 315 S.E.2d 179 (Ct. App. 1984).......................... 6

Charleston Lumber Co., 338 S.C. 171, 525 S.E.2d 869.................................................. 10

Daskalea v. Wash. Humane Soc’y, 480 F. Supp. 2d 16 (D.D.C. 2007)........................... 25

Edwards v. SunCom, 369 S.C. 91, 631 S.E.2d 529 (2006).............................................. 13

Erickson v. Jones St. Publishers., LLC, 368 S.C. 444, 629 S.E.2d 653 (2006)............ 10

Ex parte Fant, 147 S.C. 167, 145 S.E. 34 (1928)................................................................. 8

Ex Parte Wilson, 367 S.C. 7, 625 S.E.2d 205 (2006)........................................................ 13

Floyd v. Thornton, 220 S.C. 414, 68 S.E.2d 334 (1951)................................................... 11

Hadfield v. Gilchrist, 343 S.C. 88, 538 S.E.2d 268 (Ct. App. 2000).................................. 6

Hagood v. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005)............................... 13, 14

Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992)................................................... 16

Howell v. U.S. Fidelity & Guar. Ins. Co., 370 S.C. 505, 636 S.E.2d 626 (2006)............ 16

I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).................. 11

Ingram v. Kasey's Assoc’s., 340 S.C. 98, 531 S.E.2d 287 (2000).................................. 28

Jones v. Dillon-Marion Human Res. Dev. Comm’n, 277 S.C. 533,
291 S.E.2d 195 (1982)............................................................................................ 8

Mathis v. S.C. State Highway Dep’t, 260 S.C. 344, 195 S.E.2d 713 (1973)....................... 7

Paschal v. State Election Comm’n, 317 S.C. 434, 454 S.E.2d 890 (1995)....................... 17

Pet Fair, Inc. v. Humane Society of Greater Miami, 583 So. 2d 407 (Fla. 3d Dist. Ct. App. 1991)............... 26

Player v. Chandler, 299 S.C. 101, 382 S.E.2d 891 (1989)............................................... 29

Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 512 S.E.2d 106 (1999)............... 9

Riedman Corp. v. Greenville Steel Structures, Inc., 308 S.C. 467, 419 S.E.2d 217 (1992) 8

S.C. Coastal Council v. S.C. State Ethics Comm'n, 306 S.C. 41, 410 S.E.2d 245 (1991) 16

Seabrook v. City of Folly Beach, 337 S.C. 304, 523 S.E.2d 462 (1999).......................... 7

Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514, 520 (1962)..................................... 11

Smith v. Todd, 155 S.C. 323, 152 S.E. 506 (1930)............................................................ 29

Spruill v. Richland County Sch. Dist. 2, 363 S.C. 61, 609 S.E.2d 524 (2005)............... 10

Stanford v. Cudd, 93 S.C. 367, 76 S.E. 986 (1913)............................................................. 7

Stanley Smith & Sons v. Limestone College, 283 S.C. 430, 322 S.E.2d 474 (Ct. App. 1984)......................... 30

State v. Tench, 353 S.C. 531, 579 S.E.2d 314 (2003)....................................................... 17

State v. Webb, 130 S.W.3d 799 (Tenn. Ct. App 2003)................................................ 26, 27

State v. Wilson, 345 S.C. 1, 545 S.E. 2d 827 (2001)........................................................... 6

Sub-Zero Freezer Co. v. R.J. Clarkson Co., 308 S.C. 188, 417 S.E.2d 569 (1992)....... 8

Tatnall v. Gardner, 350 S.C. 135, 564 S.E.2d 377 (Ct. App. 2002)................................. 14

U.S. Fidelity & Guaranty Co. v. Security Fire & Indem. Co., 248 S.C. 307, 149 S.E.2d 647 (1966)............. 19

Statutes

Fla. Stat. Ann. § 828.073(4)(a).......................................................................................... 26

S.C. Appellate Court Rule 201.......................................................................................... 13

S.C. Code Ann. § 14-3-330........................................................................................ 13, 14

S.C. Code Ann. § 18-7-170 (1985).................................................................................... 6

S.C. Code Ann. § 47-1-10.................................................................................................. 9

S.C. Code Ann. § 47-1-120............................................................................................. 24

S.C. Code Ann. § 47-1-150...................................................................................... passim

S.C. Code Ann. § 47-1-150(A)................................................................... 1, 5, 14, 15, 24

S.C. Code Ann. § 47-1-150(B)......................................................................................... 19

S.C. Code Ann. § 47-1-150(C)................................................................................... passim

S.C. Code Ann. § 47-1-150(E).................................................................................... 19, 20

S.C. Code Ann. § 47-1-150(F)........................................................................ 23, 25, 26, 30

S.C. Code Ann. § 47-1-150(F)(1)......................................................................... 23, 27, 30

S.C. Code Ann. § 47-1-150(F)(2)..................................................................................... 27

S.C. Code Ann. § 47-1-170................................................................................... 21, 22, 23

S.C. Code Ann. § 47-13-1370........................................................................................... 28

S.C. Code Ann. § 47-1-40(A.............................................................................................. 2

STATEMENT OF ISSUES ON APPEAL

STATEMENT OF THE CASE

This appeal involves an issue of significant public importance relating to the seizure of horses under South Carolina’s Cruelty to Animals Statute, S.C. Code Ann. § 47-1-150, et seq.  On August 21, 2003, upon a showing of probable cause, Magistrate Michael R. Davis issued a search warrant pursuant to § 47-1-150 regarding livestock located on Appellants’ property.  (R. pp. 24-30).  On August 22, 2003, the search warrant was executed by the Richland County Sheriff’s Department, The South Carolina Humane Society for the Prevention and Cruelty to Animals (“Humane Society”) and the South Carolina Awareness and Rescue for Equines[1] (“S.C.A.R.E.”).  Sixty-one (61) horses (“the subject horses”) were seized and were transferred to the care and custody of S.C.A.R.E., where they have received emergent veterinary care, food, supplements and rehabilitative care since on or about August 31, 2003.  Appellants Colie G. Martin, Jr. and Colie G. Martin, III (a/k/a “Big Buddy” and “Little Buddy,” respectively) were charged with sixty (60) counts of Ill-treatment of Animals, Second offense, and sixty (60) counts of Conspiracy to Ill-treat Animals pursuant to S.C. Code Ann. § 47-1-40(A). (R. pp. 31-149).

On or about September 4, 2003, Attorney William W. Watkins entered an appearance on behalf of Appellants and filed a “Motion to Quash Seizure Order and to Quash Search Warrants.”  (R. p. 152).  On or about September 17, 2003, Attorney Watkins filed a “Motion to Vacate Seizure Order for Lack of Due Process.”  (R. pp. 209-210).

A hearing was held on or about October 1, 2003 before Magistrate Michael R. Davis.  Appellants were represented at the hearing by attorneys William W. Watkins and Julian M. Sellers.  On or about October 7, 2003, Magistrate Davis issued an Order which stated that Appellants “conceded that the validity of the search warrant could not be properly challenge [sic] at this hearing and withdrew the motion to quash the search warrant with leave to challenge the search warrant at the appropriate time.”[2]  (R. pp. 2-4).

In his October 7, 2003 Order, Magistrate Davis ruled that the hearing requirement in § 47-1-150(C)(2) should also be applied to any subsection of this statute, and therefore found that a hearing should have been requested within twenty-four hours of the seizure of the horses.  However, in his Order, Magistrate Davis further ruled that the remedy for this failure was to hold “the hearing required by this code section rather than the immediate return of the horses to an environment that could potentially be harmful to them.”  (R. pp. 2-4).  At the hearing, Appellants’ counsel stated their intention was to not attend such a hearing, maintaining that a hearing at that point in time would not be in compliance with the statute; instead Appellants’ intention was to appeal Magistrate Davis’ Order.  (R. pp. 150-174).  Nevertheless, Respondent requested a hearing, and Magistrate Davis scheduled a hearing for November 3, 2003.  On or about October 20, 2003, counsel for Appellants filed a Notice of Intent to Appeal Magistrate Davis’s Order.  As a result, the November 3, 2003 hearing before Magistrate Davis did not occur.

In June 2004, Appellants received a jury trial (“criminal trial”) in the Richland County Court of General Sessions presided over by Judge G. Thomas Cooper, Jr.  On June 16, 2004, the jury returned guilty verdicts against Appellant Colie Martin, III on four (4) counts of Ill-treatment of Animals, Second offense, and against Appellant Colie Martin, Jr. on four (4) counts of Conspiracy to Ill-treat Animals.  Appellants did not move to suppress evidence obtained from the August 2003 search and seizure of the horses prior to or during the criminal trial, and the evidence was admitted without objection. 

At the conclusion of the trial, Judge Cooper ordered that the Department of Probation, Pardon and Parole Services conduct a Pre-sentence Investigation on the Appellants.  The Pre-sentence Investigation was completed in September 2004.  On December 15, 2004, Judge Cooper sentenced Appellants for the criminal trial convictions.  Appellant Colie Martin, III was sentenced to ninety (90) days, which the court suspended to four (4) years probation, on each of the four counts on which he was convicted.  (R. pp. 237-240).  Appellant Colie Martin Jr. was sentenced to sixty (60) days, which the court suspended to two (2) years probation, on each of the four counts on which he was convicted.[3] (R. pp. 224-227).

On or about February 17, 2005, the Honorable Larry R. Patterson of the Richland County Court of Common Pleas (Non-Jury) heard Appellants’ appeal from the October 7, 2003 Magistrate Court’s Order.  After conducting a de novo review, Judge Patterson issued an Order on February 25, 2005, finding that “[t]he horses were properly removed pursuant to § 47-1-150(A) or § 47-1-150(C)(1).  Motion to vacate seizure order is Denied.”  (R. p. 5).

On March 10, 2005, Appellants filed a Motion to Amend, Alter, Modify, Vacate or Reconsider Judge Patterson’s February 25, 2005 Order pursuant to Rule 59(e), SCRCP.

On or about July 14, 2006, Appellants (and Peggy O. Martin) filed a civil complaint against Respondent,[4] S.C.A.R.E., and Janice K. Carter (current Executive Director of S.C.A.R.E.) alleging causes of action for replevin, conversion, defamation per se, malicious prosecution, abuse of process, intentional infliction of emotional distress, negligence, and civil conspiracy.  (R. pp. 8-23).  In that action, Appellants seek the return of the subject horses, actual and punitive damages, and other relief.  Id.

S.C.A.R.E. filed a motion for summary judgment in the civil case.  In response, Appellants contended that summary judgment could not be heard because there had not been a final order issued from Judge Patterson.  There had been no change in Judge Patterson’s original order for almost two years.  When informed of the issue of the pending civil case, Judge Patterson denied Appellants’ Rule 59(e) Motion in an Order signed on March 9, 2007 and filed on March 15, 2007.  (R. pp. 6-7).  In that order, Judge Patterson stated the following:

After carefully reviewing the facts of the case and SC §47-1-150, this Court again affirms the seizure order.  As stated in the Court’s Form 4 Order, the horses were “properly removed pursuant to 47-1-150(A) or 47-1-150(C)(1).”  Neither of these sub-sections, under a clear and unambiguous reading, requires a hearing before or within twenty-four hours of a seizure.  Such requirement is mandated only in 47-1-150(C)(2).  Nonetheless, the Magistrate granted the Defendants the right to have a hearing on the seizure order to which the Defendants refused.  This court finds that the search warrant was lawfully issued and the seizure of the horses, based upon evidence of mal-treatment, was proper.

(R. pp. 6-7).  On March 19, 2007, Appellants served a Notice of Intent to Appeal Judge Patterson’s Order.  (R. pp. 610-611).  .

STANDARD OF REVIEW

Section 18-7-170 of the South Carolina Code (1985) articulates the standard of review to be applied by the circuit court in an appeal of a magistrate's judgment:

Upon hearing the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, as to any or all the parties and for errors of law or fact.

See also Hadfield v. Gilchrist, 343 S.C. 88, 92-93, 538 S.E.2d 268, 270 (Ct. App. 2000).  While the circuit court maintains a broad scope of review, the court of appeals’ standard is more limited than the circuit court. 

“In criminal cases, the appellate court sits to review errors of law only.”  State v. Wilson, 345 S.C. 1, 6, 545 S.E. 2d 827, 829 (2001).  Therefore, the court of appeals will presume that the review by a circuit court of a magistrate’s judgment was made upon the merits and there are no facts that show the review was influenced by an error of law.  See, e.g., Burns v. Wannamaker, 281 S.C. 352, 357, 315 S.E.2d 179, 182 (Ct. App. 1984).  Unless the court of appeals finds an error of law, the court will affirm the circuit court’s holding if there are any facts supporting his decision. Hadfield, 343 S.C. at 94, 538 S.E.2d at 271.  The South Carolina Supreme Court, in Stanford v. Cudd, 93 S.C. 367, 370, 76 S.E. 986, 987 (1913), held that where the evidence is reviewed on appeal to the circuit court, this court will assume the circuit court considered the judgment on the merits, in the absence of facts showing the decision was controlled or affected by errors of law.

LAW / ANALYSIS

I.  This Appeal Should Be Dismissed Because It Is Moot.

The Court should decline to grant the relief requested in Appellants’ appeal because the issues raised therein are moot.  The evidence obtained from the search and seizure of the subject horses was introduced at Appellants’ criminal trial.  This is the exact same search and seizure about which Appellants now seek to appeal.  At the criminal trial, Appellants did not object to the search, seizure, custody or control of the subject horses, object to such evidence as being unlawful, otherwise move to suppress the evidence, nor move for the return of the horses.  The criminal trial resulted in Appellants’ conviction on four (4) counts of Ill-treatment of Animals, second offense, and four (4) counts of conspiracy to ill-treat animals.  Appellants had their opportunity to challenge the lawfulness of any aspect of that search and seizure at the criminal trial, but they did not do so.  Furthermore, Appellants filed no appeal from the criminal trial or subsequent sentencing.

“A case becomes moot when judgment, if rendered, will have no practical effect upon existing controversy.”  Seabrook v. City of Folly Beach, 337 S.C. 304, 306, 523 S.E.2d 462, 463 (1999) (quoting Mathis v. S.C. State Highway Dep’t, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973)).  A party may not maintain an action that could not produce any practical results or one from which the party will not derive any practical benefit.  Ex parte Fant, 147 S.C. 167, 145 S.E. 34, 38 (1928).  Accordingly, if at any point in a legal proceeding no actual controversy exists, the issue is merely academic and is not properly before the court.  See Jones v. Dillon-Marion Human Res. Dev. Comm’n, 277 S.C. 533, 535, 291 S.E.2d 195, 196 (1982).

Here, the issuance of an opinion from this Court could have no legal effect because the issue on appeal—the lawfulness of the seizure of the subject horses—has been addressed by the criminal trial with finality.  At no time during the criminal trial did Appellants object to the August 2003 search of their property and seizure of the subject horses.  Accordingly, because Appellants did not raise any objection to the seizure of the horses in the criminal proceedings before Judge Cooper, there is no controversy for this Court to consider.

II.  This Appeal Should Be Dismissed Because It Is Barred By The Doctrine Of Res Judicata.

Appellants’ appeal is barred by the doctrine of res judicata.  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.  Sub-Zero Freezer Co. v. R.J. Clarkson Co., 308 S.C. 188, 190-91, 417 S.E.2d 569, 571 (1992).  Res judicata requires three elements be met: (1) a final, valid judgment on the merits; (2) identity of the parties; and (3) the second action involves matters properly included in the first suit.  Riedman Corp. v. Greenville Steel Structures, Inc., 308 S.C. 467, 469, 419 S.E.2d 217, 218 (1992).  South Carolina courts use various tests in determining whether a claim should have been raised in a prior suit: (1) when there is identity of the subject matter in both cases; (2) when the cases involve the same primary right held by the plaintiff and one primary wrong committed by the defendant; (3) when there is the same evidence in both cases; and, recently, (4) when the claims arise out of the same transaction or occurrence.  Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 35 n.3, 512 S.E.2d 106, 109 n.3 (1999).  Indeed, even a suit involving a different remedy does not alter the fact that the claims are identical in both actions.  Id. at 35, 512 S.E.2d 109.

Each of the elements needed for the doctrine of res judicata to apply are present in this case.  First, Appellants were convicted in the criminal trial of Ill-treatment of Animals under S.C. Code Ann. § 47-1-10, et seq., related to the abuse and neglect of the subject horses.  Second, the parties in the proceedings giving rise to this appeal are the same parties in the criminal trial.  Third, as outlined in this section below, the issues of whether the seizure and subsequent continued custody of the animals was proper were both matters properly addressed to the criminal court.  Further, in looking at other pertinent considerations, this Court should find this suit is barred by res judicata.  For example, the evidence is the same in both this proceeding and the criminal trial, the events arise out of the same occurrence—animal abuse and neglect, and the remedy that Appellants seek is the same.

More specifically, the criminal charges out of which this seizure of animals arose resulted in a jury finding Appellants guilty of four (4) counts of Ill-treatment of Animals, second offense, and four (4) counts of Conspiracy to Ill-treat Animals in violation of S.C. Code Ann. § 47-1-150.  As noted above, during the criminal proceeding Appellants had the opportunity to object to the lawfulness of the search and seizure.  Appellants made no such objection.  Because Appellants failed to raise the issue prior to or during the criminal trial, they are barred by the doctrine of res judicata and cannot now raise the issue in an attempt to get a “second bite of the apple.”  See Spruill v. Richland County Sch. Dist. 2, 363 S.C. 61, 65, 609 S.E.2d 524, 256 (2005)  (barring litigant’s attempt to raise issues that should have been raised in prior similar proceeding arising out of same factual occurrences).  Appellants are now barred from arguing the lawfulness of the seizure because they never moved to suppress evidence obtained from the search and seizure, a jury has now ruled on the evidence, and the conviction and sentence were not appealed. 

III.  This Appeal Should Be Dismissed on the Ground of Waiver.

If this Court does not find this appeal to be mooted or barred by the finality of the criminal proceeding, this Court should deny the relief requested in this appeal because Appellants waived the opportunity to have the hearing to which they allege they are entitled.  Our appellate courts have made it clear that they will not reward a party who makes strategic decisions in certain aspects of the case which result in that party not being able to object later.

When a party, whether for tactical or other reasons, decides to pursue a course of action in a case, thereby foregoing the chance afforded by the court, that party waives any objection it may have.  Erickson v. Jones St. Publishers., LLC, 368 S.C. 444, 475-76 629 S.E.2d 653, 670 (2006); see, e.g., Charleston Lumber Co., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (finding that an unappealed ruling, right or wrong, is the law of the case and requires affirmance).  Our appellate courts have recognized that it would be patently inappropriate and unfair to litigants, as well as a violation of well-established preservation of error principles and notions of judicial economy, to give a party a second chance to re-argue issues that the party previously had the chance to raise or resolve. See, e.g., I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (preservation of error rules “prevent[] a party from keeping an ace card up his sleeve - intentionally or by chance - in the hope that an appellate court will accept that ace card and, via a reversal, give him another opportunity to prove his case”); Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514 (1962) (party may not complain on appeal of error or object to trial procedure which his own conduct has induced); Floyd v. Thornton, 220 S.C. 414, 425-26, 68 S.E.2d 334, 339 (1951) (same).

Appellants come before this Court complaining they did not receive a post-seizure hearing that they allege they were entitled to pursuant to S.C. Code Ann. § 47-1-150(C).  However, Magistrate Davis gave Appellants an opportunity for a hearing—in fact, he even scheduled a hearing for November 3, 2003—but Appellants declined to attend, instead choosing to appeal to the Circuit Court (who deemed them to have waived this right to a hearing by declining the Magistrate’s offer of a hearing). 

At the hearing before Magistrate Davis, Appellants argued that under the applicable statute, “a hearing has to be set.”  (R. p. 163, lines 14-24).  In light of this argument the Judge stated, “I am going to rule that it would have been proper for the hearing to be held.  I think that it was improper that they did not.”  (R. p. 167, lines 20-23).  The Judge further ruled that “the remedy to this situation would be to hold a hearing and not just give the horses back to them.”  (R. p. 170, lines 6-8) (emphasis added).  In response to the Judge’s ruling, counsel for Appellants, William W. Watkins, had the following exchange with the Court:

Watkins:	No sir.  I’m probably not going to attend the hearing.
Judge:	Do what now?
Watkins:	Probably not, at this point, going to come to the hearing.  I’m very serious about the three days is what I think needs to be done and . . .
Judge:	You’re going to file an appeal on this?
Watkins:	Probably.

(R. p. 173, line 20-p. 174, line 3).  Nevertheless, following that exchange, a hearing was requested by Respondent and scheduled for November 3, 2003.  Counsel for Appellants served a Notice of Intent to Appeal on October 20, 2003, and declined to attend the hearing.  As outlined above and demonstrated by the procedural history in this case, that decision to appeal ultimately lead Appellants to filing the present appeal with this court.

However, given Appellants’ decision to decline the hearing to which they claim they are entitled, this Court should not reward or enable Appellants to abuse the appellate system by continuing to prolong issues related to the seizure of the horses.  Appellants’ complaints regarding the alleged statutory requirement for a hearing, and the insistence that one was required, have been waived at Appellants’ own request.  As a result, this Court should find that Appellants’ waived the chance to have the hearing to which they argue they are entitled. 

Another reason upon which this court may rely in upholding the circuit judge’s ruling is that the Magistrate Davis ordering that the remedy for any violation of that statute was to schedule a post-seizure hearing was not a final order.  Therefore, Appellant cannot maintain this appeal because the October 7, 2003 Order is not one from which an appeal can be taken.

Under the Rules of Appellate Procedure, an aggrieved party may only appeal a final judgment or an appealable order or decision.  Rule 201, SCACR.  South Carolina case law supports this rule in that generally only final judgments, which do not leave any further act to be done by the court, may be appealed.  Ex Parte Wilson, 367 S.C. 7, 12-13, 625 S.E.2d 205, 208 (2006) (holding that an order quashing a subpoena duces tecum was not immediately appealable because further actions remained for the court to take before the rights of the parties were determined), Edwards v. SunCom, 369 S.C. 91, 94-95, 631 S.E.2d 529, 530-31 (2006) (finding that an order granting a stay is not immediately appealable because it does not affect a substantial right of one of the parties), cf. Hagood v. Sommerville, 362 S.C. 191, 194-95, 607 S.E.2d 707, 708-09 (2005) (holding that the grant of a motion to disqualify is immediately appealable because it is a final determination that affects a substantial right of a party).

Appellate authority is granted by section 14-3-330 of the South Carolina Code.  Pursuant to this authority, interlocutory orders generally are not appealable.  Therefore, “[a]n order generally must fall into one of several categories set forth in that statute in order to be immediately appealable.”  Hagood, 362 S.C. at 194, 607 S.E.2d at 708.  The statute indicates four such categories:

1.  Intermediate judgments in a law case involving the merits or final judgments in such actions;

2. Orders “affecting substantial rights” if the order (a) “in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action.”

3.  Final orders affecting substantial rights in special proceedings;

4. Interlocutory orders or decrees related to injunctions or the appointment of a receiver.

S.C. Code Ann. § 14-3-330.  Further, South Carolina courts narrowly construe section 14-3-330.  Hagood, 362 S.C. at 195, 607 S.E.2d at 709.  Our courts hold that a substantial right is one that goes to the merits and finally determines “some substantial matter forming the whole or part of some cause of action or defense.”  Tatnall v. Gardner, 350 S.C. 135, 138, 564 S.E.2d 377, 379 (Ct. App. 2002). 

As outlined herein, Appellants declined their chance to have a hearing, which was set for November 3, 2007.  Instead, Appellants filed this appeal.  As South Carolina jurisprudence indicates, Magistrate Davis’s order was not a final order deciding the rights of the parties.  As a result, this Court should not grant Appellants the relief they seek in this appeal.

After a de novo review of the issues, the Circuit Court ruled that the subject horses were properly removed pursuant to either § 47-1-150(A) or § 47-1-150(C)(1), and that “[n]either of these sub-sections, under a clear and unambiguous reading, requires a hearing before or within twenty-four hours of a seizure.  Such a requirement is mandated only in § 47-1-150(C)(2).”  (R. pp. 6-7).   

The Circuit Court’s analysis and findings were correct.  S.C. Code Ann. § 47-1-150(A) sets forth the requirements for the issuance of a search warrant and expressly states that a seizure may occur pursuant to that search warrant.  That subsection states as follows:

When complaint is made on oath or affirmation to any magistrate authorized to issue warrants in criminal cases that the complainant believes and has reasonable cause to believe that the laws in relation to cruelty to animals have been or are being violated in any particular building or place, such magistrate, if satisfied that there is reasonable cause for such belief shall issue a search warrant. . . . If an animal is seized pursuant to this section and the South Carolina Society for the Prevention of Cruelty to Animals, or other society incorporated for that purpose is involved with the seizure, the animal may be held pending criminal disposition of the case at a facility maintained or contracted by that agency.

S.C. Code Ann. § 47-1-150(A).  This subsection provides for the issuance of a search warrant by the magistrate if there is probable cause to believe the laws relating to ill-treatment of animals are being violated.  It further provides that any seized animals may be held by the seizing organization pending criminal disposition of the case.  In the subject case, Magistrate Davis properly issued search warrants that were properly executed.  As a result, sixty-one (61) horses were seized and placed in S.C.A.R.E.’s custody.  

In order to support their argument regarding how S.C. Code Ann. § 47-1-150 should be read, Appellants must first prove that the seizure in this case could not have been under subsection (A).  This is because their theory that the post-seizure hearing requirement in subsection (C)(2) also applies to subsection (C)(1) seizures is only outcome determinative if the seizure in this case was made pursuant to subsection (C)(1), not subsection (A).  Therefore, Appellants argue that § 47-1-150(A) “plainly does not authorize the seizure of any animal.”  (Appls’. Br. at p. 9). 

Appellants’ assert that, because subsection (A) states, “any animal is seized pursuant to this section,” it must refer only to other subsections of § 47-1-150, but not subsection (A) itself.  (Appls’. Br. at p. 9).  Appellants correctly maintain that “this section” means § 47-1-150, but they provide no basis for their contention that the term “this section,” as used in subsection (A), only refers to other subsections in this section (e.g., subsection (C)(1)), but not the subsection in which the language is contained.  Appellants’ argument is contrary to the express language of the statute.  Because subsection (A) is contained within § 47-1-150, it logically follows that the language “any animal seized pursuant to this section” must include an animal seized pursuant to subsection (A). 

Appellants’ convoluted analysis is contrary to a cardinal rule of statutory construction—to ascertain and effectuate the intention of the legislature.  Howell v. U.S. Fidelity & Guar. Ins. Co., 370 S.C. 505, 636 S.E.2d 626 (2006).  Statutes must be read as a whole, and sections which are part of the same general statutory scheme must be construed together and each one given effect, if reasonable.  Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992).  Furthermore, the court should not consider the particular clause being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law.  S.C. Coastal Council v. S.C. State Ethics Comm'n, 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991).

A reading of the statute as a whole reveals a logical explanation why subsection (A) does contemplate a seizure of animals separate and distinct from subsection (C), as Respondent maintains.  Subsection (A) provides for the issuance of a search warrant when there is probable cause to search for evidence that a crime is being committed.  When executing such a search warrant, it may become necessary to seize an abused or mistreated animal discovered during the search.  This is not only common in the context of § 47-1-150, but also in the context of executing criminal search warrants in general.  See, e.g., State v. Tench, 353 S.C. 531, 536 n.1, 579 S.E.2d 314, 317 (2003) (upholding seizure of other items found during execution of valid search warrant).  In contrast, subsection (C)(1) allows for an application to the court for an order granting permission to take custody of a neglected or cruelly treated animal to prevent further suffering or ill-treatment.  In this scenario, the applicant is aware before the application of the need to seize the animal, as opposed to discovering an animal in need of seizure while executing a search warrant pursuant to subsection (A).  Thus, Appellants’ argument fails here, in the first building block of their convoluted reasoning. 

Next, Appellants misconstrue the interplay between subsections (C)(1) and (C)(2) and ignore the plain meaning of the statute.  Where the terms of the statute are clear, the court must apply those terms according to their literal meaning.  Adkins v. Varn, 312 S.C. 188, 439 S.E. 2d 822 (1993).  This Court cannot construe a statute without regard to its plain and ordinary meaning and may not resort to subtle or forced construction in an attempt to limit or expand a statute’s scope. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993).  “[S]ince the plain language of the statute is unambiguous, it is not within the province of this Court to search for another meaning.”  Paschal v. State Election Comm’n, 317 S.C. 434, 436-37, 454 S.E.2d 890, 892 (1995).

S. C. Code Ann. § 47-1-150(C)(1) empowers the magistrate to issue a seizure order so that animals may be removed from their present location to prevent further ill-treatment.  Subsection (C)(2) empowers the magistrate to issue an order to provide care to the animal at the owner’s expense without removal of the animal from its present location.  S. C. Code Ann. § 47-1-150(C) states as follows:

(C)  Any law enforcement office or any agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose may move before a magistrate for an order to:

(1)  lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location if deemed by the court that removal is necessary to prevent further suffering or ill-treatment, or

(2)  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 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 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. The hearing shall be concluded, and the court order entered 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.

S.C. Code Ann. § 47-1-150(C) (emphasis added). 

Appellants argue that the Circuit Court erred in finding that the language in subsection (C)(2) that the applicant shall petition for a hearing “to be set within twenty-four hours after the date of seizure of the animal or issuance the order to provide care” is limited to orders issued pursuant to subsection (C)(2).  Instead, Appellants contend that this post-seizure hearing requirement language in subsection (C)(2) also applies to subsection (C)(1).  In maintaining this position, Appellants blithely ignore that subsections subsection (C)(1) and subsection (C)(2) are separated by the word “or,” which is a conjunction that has the ordinary meaning “either” in the sense that it indicates an alternative.  U.S. Fidelity & Guaranty Co. v. Security Fire & Indem. Co., 248 S.C. 307, 314, 149 S.E.2d 647, 650 (1966) (explaining the meaning of the word “or” in a statute to mean “either one or the other”).  The express language of the statute plainly states that subsections (C)(1) and (C)(2) are alternative options available to applicants seeking orders from the magistrate relating to ill-treated animals.[5]

Appellants’ next error is to argue that because subsection (C)(2) mentions a hearing “to be set within twenty-four hours after the date of seizure of the animal,” that the requirement in subsection (C)(2) for a hearing must also apply to subsection (C)(1) because only subsection (C)(1) provides for a seizure.  Appellants make a fundamental error here.  Both subsection (C)(1) and subsection (C)(2) provide for seizures, albeit different types of seizures.  Subsection (C)(1) provides for a custodial seizure, while subsection (C)(2) provides for an on-site seizure.  A complete reading of the statutory framework supports the circuit court’s finding and recognizes the on-site seizure the Code provides in (C)(2).  For example, § 47-1-150(E) recognizes that a seizure occurs even in the circumstance where a court orders the animals to remain in the care or custody of the accused owner, stating “[i]f any seized animal held by court order at the owner's premises . . .” S.C. Code Ann. § 47-1-150(E).  Appellants’ effort to ignore the plain meaning of this language, divorce it from the other subsections of § 47-1-150, and ignore the entirety of the statute should not be allowed. 

Once the underlying flaws in Appellants’ reasoning are revealed, their theory collapses upon itself.  As acknowledged by section 47-1-150(E), subsection (C)(2) authorizes an order granting an on-site seizure.  Therefore, there is no longer a need to contort the language of the statute to reach the illogical conclusion that the post-seizure hearing requirement in subsection (C)(2) must also apply to subsection (C)(1).  It does not.  These subsections outline two distinct alternative measures, and a plain reading of the statute does not support the notion that language solely in subsection (C)(2) should be transposed to subsection (C)(1). 

Moreover, the plain language of the statute makes perfect sense.  It is reasonable to only require a post-seizure hearing “to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal” when operating under an order pursuant to subsection (C)(2) that the owner of the neglected animal provide care to the animal “at the owner’s expense without removal of the animal from its present location.”  S.C. Code Ann. § 47-1-150(C)(2).  The hearing is necessary when the owner retains custody of the animals during the seizure in order to provide adequate protection and care for the animals during the pendency of the criminal charges.  Otherwise, there would be no safeguard for the court to ensure that the alleged abuse or neglect is stopped while the accused awaits trial.

Likewise, it makes no sense to conduct a hearing “to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal” when the applicant has lawfully taken custody of a neglected animal by removing the animal from its present location to prevent further suffering or ill-treatment, as authorized in subsection (C)(1).  Again, Appellants’ argument fails.

The issue is whether the Appellants were entitled to a hearing pursuant to S.C. Code Ann. § 47-1-150 (C)(1).  It is undisputed that the horses were not seized under subsection (C)(2).  Thus, subsection (C)(2) does not apply because Respondent was not requesting that the animals remain on the Appellants’ property or that the court order the owner to provide certain care at the owner’s expense.  S.C. Code Ann. § 47-1-150(C)(1) does not contain a hearing requirement in its text, and it is separated by the word “or” from S.C. Code Ann. § 47-1-150 (C)(2).

V.  Appellants Are Not Entitled to the Return of Any of the Subject Horses Unless (1) The Court Adjudges Them Able to Adequately Provide for, and Have Custody, of Them, and (2) They Pay Restitution and Satisfy the Lien for the Costs Incurred in the Care of the Horses

A.  Costs Related to the Horses as to Which Appellants Were Convicted of a Violation of Chapter 1 of Title 47.

Chapter 1 of Title 47 of the South Carolina Code outlines two separate sets of procedures regarding forfeiture of animals seized pursuant to this chapter, depending on whether or not the owner was convicted of a violation of this chapter in regard the particular animal.  If the owner is convicted of a violation of this chapter with regard to an animal, the owner forfeits ownership of that animal.  Also, at the discretion of the court, the owner must be ordered to pay costs incurred to care for the animal and related expenses.  Section 47-1-170, which addresses this situation, provides that an owner

who is convicted of any violation of this chapter forfeits ownership, charge, or custody of the animal and at the discretion of the court, the person who is charged with or convicted of a violation of this chapter must be ordered to pay costs incurred to care for the animal and related expenses.

S.C. Code Ann. § 47-1-170.

As to the counts on which Appellants were found guilty, a plain reading of § 47-1-170 requires an automatic forfeiture of these animals.  The court has no discretion regarding the forfeiture of those animals.  Additionally, “at the discretion of the court, the person who is charged with or convicted of a violation of this chapter must be ordered to pay costs incurred to care for the animal and related expenses.”  S.C. Code Ann. § 47-1-170.  A plain reading of this section gives the Court the discretion to require payment for the cost of care for animals which are automatically forfeited. 

B.  The Issue of the Return of the Horses Was Not Decided in the Order of the Circuit Court from Which this Appeal Was Taken, and Is Thus Not Properly Before this Court.

As outlined herein, Appellants failed to obtain a ruling from the court below on the issue of whether the horses should be returned.  The plain language of the order from which Appellants take this appeal demonstrates Appellants’ failure in this regard.  However, Appellants have thrust their unseasonable request for the return of the horses into the briefing before the court.  As a result, Respondents have set forth below the additional reasons why Appellants are not entitled to the return the horses unless and until this case is remanded to the circuit court for an evidentiary hearing analyzing the issues set forth below.

C.  Costs Related to the Horses as to Which Appellants Were Not Convicted of a Violation of Chapter 1 of Title 47.

As to the remaining animals which were seized as to which Appellants were not convicted, S.C. Code Ann. § 47-1-150(F) outlines the conditions under which animals seized under § 47-1-150 shall be returned to the owner, or turned over to the appropriate person for humane disposition.  Section 47-1-150(F) provides as follows:

The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either:         

(1) The owner is adjudged by the court to be able to provide adequately for, and have custody of the animal, in which case the animal shall be returned to the owner upon payment for the care and provision of the animal while in the agent’s or officer’s custody; or

(2) The animal is turned over to the officer or agent as provided in Section 47-1-170 and a humane disposition of the animal is made.

S.C. Code Ann. § 47-1-150(F).

A plain reading of § 47-1-150(F)(1) shows that the subject horses seized under this statute may not be returned to Appellants until a court goes through a two-tiered analysis.  First, the court must find that Appellants are able to “provide adequately for, and have custody of, the animal.”  If, and only if, the court finds this requirement has been satisfied, then the court must turn to the second step in this process—return of the animals to the owner only “upon payment for the care and provision of the animal while in the agent’s or officer’s custody.” S.C. Code Ann. § 47-1-150(F)(1) (emphasis added).  Unlike section 47-1-170, the language in section 47-1-150(F) is not discretionary, and the costs must be paid before the animals upon which no conviction resulted can be lawfully returned to the owner.

As outlined herein, the statutory scheme out of which the current appeal arises is designed to enable Respondent or an organization dedicated to the prevention of animal cruelty to provide for adequate care for animals that are suspected of being abused or neglected during the disposition of criminal charges.  See Bogart v. Chappell, 396 F.3d 548 (4th Cir. 2005) (explaining that Respondent or the non-profit acting on its behalf is charged with the nondiscretionary duty to care for an accused animal abuser’s animals pending the outcome of the criminal proceeding).  As a result, the General Assembly has enacted a system and outlined procedural safeguards to enable Respondent, an animal care agency acting for Respondent, or the owner of the animals to properly care for the animals during the pendency of criminal charges stemming from allegations of abuse or neglect.  These safeguards include Respondent’s ability to seize the animals, take them into custody, and the Court’s ability to order the owner to provide “certain” and adequate care for the animals while the owner is awaiting criminal trial. 

Significantly, all of the procedures and issues related to seizure and custody occur prior to the criminal proceedings based upon the charges of suspected abuse or neglect.  S.C. Code Ann. § 47-1-150(A) (providing that “an animal seized pursuant to this section . . . may be held pending criminal disposition of the case at a facility maintained or contracted by that agency” (emphasis added)).  The applicable language in the statute also provides that at the time of the arrest Respondent or a society incorporated for the prevention of cruelty to animals “may take charge of the animal and deposit the animal in a safe place of custody . . . and all necessary expense incurred in taking charge of the animal shall be a lien thereon.”  S.C. Code Ann. § 47-1-120 (emphasis added).

As outlined in section V, in light of the conclusion of the criminal proceeding, a court must now address whether Appellants are capable of properly caring for the animals.  Following this determination, the Appellants must then pay for the costs of care of the animals incurred during the pendency of the criminal charges.  See S.C. Code Ann. § 47-1-150(F) (providing for the return of the animals in custody by requiring a court to adjudge the owner capable of providing adequate care and upon payment for the cost of care of the animals in custody (emphasis added)).

Therefore, notwithstanding Appellants assertions otherwise, the horses cannot be “immediately returned,” as Appellants argue, for the numerous reasons set forth in this brief.  But ultimately, the statutory framework prevents the return of the animals until such time that the lien provided for in § 47-1-150(F) is satisfied.  As a result, all other hurdles aside, the horses cannot be returned until this lien is paid.[6] 

D.  Other Jurisdictions Having Statutes Similar to § 47-1-150 Agree with Respondent’s Reading of § 47-1-150.

Although there are no reported decisions interpreting this statute in South Carolina, a number of other states have statutes substantially similar to the provisions to the South Carolina statute at issue here, and they uniformly have been applied according to their plain meaning.  Florida has adopted a statute which is nearly identical to the S.C. Code Ann. § 47-1-150(F).  Fla. Stat. Ann. §828.073(4)(a) reads as follows:

The officer or agent of any county or of any society or association for the prevention of cruelty to animals taking charge of an animal is provided for in this section shall provide for the animal until either: 1. The owner is adjudged by the court to be able to provide adequately for, and have custody of, the animal in which case the animal shall be returned to the owner upon payment for the care and provision for the animal while in the agent’s or officer’s custody; or 2. The animal is turned over to the officer or agent as provided in paragraph (c) and a humane disposition of the animal is made.

Fla. Stat. Ann. §828.07394)(a) (1997).

In Pet Fair, Inc. v. Humane Society of Greater Miami, a Florida District Court of Appeals held that under § 828.073(4)(a)(1), which is identical to the South Carolina statute, “an owner which has successfully shown its ability to care for its animals may get them back, if it pays for the expenses duly incurred during their retention by the authorities.”  Pet Fair, Inc., 583 So. 2d 407, 408 (Fla. 3d Dist. Ct. App. 1991).  In Pet Fair, the owners were found to have adequately cared for the animals and were entitled to have them returned upon the payment for their care. 

In State v. Webb, 130 S.W.3d 799, 838 (Tenn. Ct. App 2003), the court held that “the trial court was within its authority in ordering the forfeiture of the dogs which were the subjects of not guilty verdicts.”  In Webb, appellants were charged with 101 counts of cruelty to animals.  Appellants were convicted of forty-seven counts and sentenced to concurrent sentences of eleven months and twenty-nine days with sixty days incarceration on each count.  The Appellants were also ordered to pay $39,978.85 in restitution and prohibited from owning animals for ten years.  The trial judge made the determination based on the evidence presented that the appellants were not able to adequately care for the animals, and he ordered the animals that were the subjects of not guilty verdicts forfeited. Appellants appealed on a number of issues including the forfeiture of the animals that were the subjects of not guilty verdicts and the ten-year ban on owning animals.  The Court of Criminal Appeals of Tennessee affirmed the decision of the trial judge on all issues and noted,  “[t]he court observed that a dog “is not a car that we can set in the law enforcement lot and leave it for a year and half while the appeal goes forward.”  The court found that “the Appellants failed unreasonably to provide necessary food, water, care or shelter for all of the animals in their custody.”  State v. Webb, 130 S.W. 3d at 838.  The interpretation of similar statutes in the cases cited above supports Respondent’s position that under § 47-1-150(F)(1) the subject horses seized under this statute may not be returned to Appellants unless the circuit court, on remand, were to hold an evidentiary hearing and find (1) whether Appellants are able to provide adequately for, and have custody of, the animal; and (2) if the court finds this requirement has been satisfied, whether the owner can make payment for the care and provision of the animal while in S.C.A.R.E.’s custody.

VI.  Equitable Reasons Also Preclude the Return of the Subject Horses to Appellants.

While S.C. Code Ann. 47-1-150(F)(1) and (2) prevent the return of the horses, in addition to the many other reasons set forth herein, equitable principles also prevent the return of the horses to Appellants.

A.  The Doctrine of Unclean Hands Bars Appellants from Gaining Custody of the Horses.

If a party has unclean hands, it is precluded from recovering in equity.  A party will be found to have unclean hands where the party behaves “unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.”  Ingram v. Kasey's Assoc’s., 340 S.C. 98, 107, 531 S.E.2d 287, 292 (2000).

In the criminal trial, Appellants were found to have neglected and cruelly treated the subject horses and were convicted on four counts of Ill-treatment Animals, Second offense cruelty.  Furthermore, as considered at the sentencing hearing before the Honorable G. Thomas Cooper, Appellants have a long history of failing to provide adequate care to their horses.  (R. p. 266, line 12-p. 267, line 25).  Little Buddy is a repeat offender, having a prior conviction of Ill-treatment of Animals in 2000, also involving a horse.  (R. p. 266, lines 12-18; R. p. 267, lines 8-16).  Big Buddy has two convictions from 1997 for violating § 47-13-1370 relating to proper transport of horses.  (R. p. 266, line 20-p. 267, line 16).  See also Trial Testimony of Steve Stephenson, Humane Society Investigator.  (R. pp. 295-360).  As a result of their convictions and past criminal behavior, Appellants come before this court with unclean hands.  Respondent has also been prejudiced by Appellants’ behavior by having to provide the proper care to the horses that Appellants, as former owners of these horses, did not provide.  Therefore, equity will not allow the return of the horses despite Appellants’ efforts to convince the court otherwise.

B.  A Court Cannot Allow a Party to Profit from a Crime.

This Court cannot allow Appellants to profit from their crime.  See Smith v. Todd, 155 S.C. 323, 334, 152 S.E. 506, 510 (1930) (recognizing that a defendant cannot receive the insurance proceeds for a person that they murdered when the defendant is the beneficiary on the victim’s policy).  There is no dispute that Appellants were convicted of the crime of Ill-treatment of Animals, second offense.  But, during the pendency of the criminal charges stemming from allegations of abuse and neglect, the horses in this case were placed in the care of S.C.A.R.E.  The adequate care S.C.A.R.E. provided has greatly improved the health and well-being of the animals.  Appellants now seek to profit from the significant efforts of S.C.A.R.E.  (See Appls.’ Initial Br. at 5 n.10 and R. p. 3).[7]  This Court cannot return the horses as Appellants contend because to do so would allow Appellants to gain great benefits from their crimes.

C.  Unjust Enrichment Bars the Return of the Horses.

Appellants would be unjustly enriched if the horses are returned.  To demonstrate that an unjust enrichment would result, a party need only show that it conferred a benefit on another and that allowing the other party to retain that benefit would result in a loss for the party that did the work.  See Player v. Chandler, 299 S.C. 101, 107, 382 S.E.2d 891, 895 (1989).

As the record reflects, the horses in this case were mistreated, in an unhealthy state, and malnourished.  See Trial Testimony of Dr. Patricia Panno, Steve Stephenson, Lieutenant Jim Berlin, Dr. Gywnn Hardee, Jan Carter, and Karen Zajicek Metze.  (R. pp. 295-607).  Due to the subsequent efforts of S.C.A.R.E. in providing adequate care, the horses have been revived and have flourished.  To allow Appellants to regain custody of the horses that they failed to care for would allow them to benefit from all the hard work S.C.A.R.E. dedicated to ensuring the horses survived the terrible conditions to which they were subjected by their owners.

In conjunction with this, the possibility of an unfair result is the logic behind the General Assembly including a provision allowing for restitution.  It is well recognized that “[r]estitution 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).  Therefore, pursuant to S.C. Code Ann. § 47-1-150(F), the horses cannot be returned to Appellants.  Any holding otherwise transfers all of the benefits S.C.A.R.E. directed to the neglected horses to the Appellants—a result that is manifestly unfair.

CONCLUSION

For the reasons described above, the decision of the circuit court should be affirmed.  In the alternative, this Court should only grant a remand to the circuit court for the purpose of determining whether Appellants are capable of providing proper care as required by § 47-1-150(F)(1) and should issue an order requiring Appellants to pay for the cost of caring for the animals during the pendency of this proceeding.

[SIGNATURE PAGE ATTACHED] Respectfully submitted,

NELSON MULLINS RILEY & SCARBOROUGH LLP

By:____________________________ 
John F. Kuppens (SC Bar No. 012948)
A. Mattison Bogan (SC Bar No. 72629)
1320 Main Street / 17th Floor
Post Office Box 11070 (29211-1070
Columbia, SC  29201
(803) 799-2000

OF COUNSEL:
Jill C. Andrews (SC Bar No. )
Assistant Solicitor
Fifth Circuit Solicitor’s Office
PO Box 192
1701 Main Street
Columbia, SC 29202
(803) 576-1861
1701 Main Street

Attorneys for Respondent The State of South Carolina

Columbia, South Carolina
January            , 2008

[1] S.C.A.R.E.’s mission is to “provide public awareness and education concerning the welfare of equines, and to work with county Humane Society Chapters, Animal Control Offices, and Law Enforcement Offices in South Carolina to guarantee the welfare and safety of all equines in the state.  S.C.A.R.E. will assist in the investigation of equine abuse and/or neglect cases in South Carolina and will provide responsible foster/adoptive homes and quality rehabilitative care for equines in need.”  S.C.A.R.E., http://www.scequinerescue.org/scare.htm (last visited Nov. 9, 2007).

[2] A reading of the hearing transcript reveals that, since the criminal matter had been transferred to the Richland County Court of General Sessions, Appellants conceded that any challenges to the search warrants must be made before that court.  (R. pp. 152-154). Appellants never challenged the validity of the search warrants prior to or during their trial in General Sessions Court, and never appealed from same.

[3] Appellants filed no appeal from the criminal trial or subsequent sentencing, and the time for appealing same has expired. 

[4] Respondent was never served with the summons and complaint in the civil action now stayed in circuit court and has not been a formal party to those proceedings.

[5] § 47-1-150(B) further supports the plain reading that subsections (C)(1) and (C)(2) are alternative options available to applicants seeking orders from the magistrate relating to ill-treated animals.  Section 47-1-150(B) states that the purpose of § 47-1-150 is “to provide a means by which a neglected or mistreated animal can be: (1) removed from its present custody, or (2) made the subject of an order to provide care . . . .” § 47-1-150(B) (emphasis added).

[6] Appellants’ argument regarding so-called different types of contraband is nothing more than a red herring.  Appellants’ attempt to label the horses seized in this case as contraband, rather than as the victims of the illegal activity.  Regardless, Appellants’ attempt to analogize the situation involving the subject horses to drug forfeiture laws should be ignored because the issues related to the subject horses are governed by a specific and distinct statute, § 47-1-150.  The court need not look beyond the statutory framework at issue in this appeal for guidance.  This animal cruelty statute is meant to keep the accused owner from continuing the abuse or neglect; it is not analogous to statutes in which property is the instrumentality of the criminal activity.  Appellants’ argument fails to recognize this important distinction.  See Daskalea v. Wash. Humane Soc’y, 480 F. Supp. 2d 16 (D.D.C. 2007) (recognizing the need to protect abused animals).

[7] Appellants’ allegation that S.C.A.R.E. bred Appellants’ horses is unfounded and incorrect.  The only offspring from the seized horses were from mares pregnant at the time of seizure.