March 5, 2018
From Horry County Larry B. Hyman, Jr., Circuit Court Judge
Bratton Varnado and Alexis Mills Wimberly, both of Brown
& Varnado, LLC, of Mt. Pleasant, for Appellant.
Michael Warner Battle, of Battle Law Firm, LLC, and Arrigo
Paul Carotti, of Conway, for Respondent.
LOCKEMY, C. JUDGE
appeal from a magistrate's order ejecting Skydive from a
hangar at Grand Strand Airport, Skydive asserts the circuit
court erred by denying its appeal of the ejectment order
because: (1) ejectment was a mandatory counterclaim that
should have been pursued in the pending circuit court case;
(2) Rule 12(b)(8), SCRCP, required the ejectment be brought
with the pending circuit court case; (3) the magistrate
improperly applied its rules of court; (4) and the Space Use
Permit did not supersede the prior eight-year long lease.
Skydive also asserts the circuit court erred in finding its
ruling was not automatically stayed during the appeal. We
dismiss this appeal as moot.
is a skydiving business that operated out of the Grand Strand
Airport (GSA) located in North Myrtle Beach, SC. On May 10,
2012, Skydive entered into an agreement with Ramp 66, the
operator of the GSA, which allowed Skydive to operate its
business at the GSA. Skydive would be allowed usage of a
minimum of 2, 500 square feet in the "bird hangar"
for use during daylight hours, seven days a week. In
exchange, Ramp 66 would collect all ticket fees from
Skydive's customers and keep 14% of the total revenue.
The parties also agreed, "This agreement remains in
effect through [Ramp 66's] lease with Horry County
Department of Airports through July 2020 unless both parties
agree to any changes in writing."
66's lease with Horry County (the County) terminated by
agreement in 2013. On September 13, 2013, Skydive entered
into a Space Use Permit (SUP) with the County. Pursuant to
the SUP, the County agreed to allow Skydive to occupy and use
6, 800 square feet in the bird hangar. In exchange, the
County would receive a flat $1, 200 per month fee. The SUP,
by its terms, expired January 31, 2014. The SUP also
contained a clause indicating: "This Permit constitutes
the entire agreement of the parties with respect to the
subject matter hereof and supersedes all previous agreements,
representations and understandings, concerning the same,
whether written or oral."
signing the SUP, Skydive requested several items at the bird
hangar be repaired. According to Skydive, the County never
responded to those requests. As a result of these and other
actions, the relationship between Skydive and the County
soured. Subsequently, the County provided Skydive with
another SUP in February, 2014, but Skydive refused to sign
it. On February 28, 2014, Skydive filed an action in the
court of common pleas alleging sixteen causes of action
including breach of contract, breach of contract accompanied
by a fraudulent act, and violation of the South Carolina
Unfair Trade Practices Act. The County answered that
complaint on March 18, 2014.
5, 2014, the County filed an application for ejectment in the
magistrate's court. The County asserted, "[t]he term
tenancy or occupancy has ended." On June 13, 2014,
Skydive's attorney filed a motion to remove the case from
the magistrate's court to the circuit court. Skydive
asserted the same facts and issue were pending in the circuit
court action and the case should be removed from the
magistrate's court. On July 2, 2014, the magistrate heard
argument on the motion to remove and denied it. The
magistrate also notified both parties it would hear the rule
to vacate on July 23, 2014.
18, 2014, Skydive sent the magistrate a letter asking the
magistrate to reconsider its ruling on the motion to remove.
Skydive also requested, "[s]hould this [h]onorable
[c]ourt deny [Skydive's] request for reconsideration,
[Skydive] respectfully asks for thirty (30) days within which
to file an Answer and Counterclaim . . . and a jury trial . .
. and reasonable discovery." During the hearing on July
23, the magistrate denied Skydive's motion for
reconsideration, motion for a continuance to file an answer
and counterclaims, and motion for a jury trial. The
magistrate found the request to file an answer and
counterclaims and the request for a jury trial were not
submitted within the proper time periods for them to be
considered. The magistrate then held a hearing on the merits
and found Skydive did not have a legal right to be on the
property and ordered it be ejected.
appealed the magistrate's decision to the circuit court.
On August 1, 2014, the magistrate issued an appellate bond,
allowing Skydive to continue occupying the property and
requiring Skydive to continue paying the County $1, 200 per
month in rent "until the action is heard on appeal and
decided by the [c]ircuit [c]ourt."
circuit court heard Skydive's appeal on May 6, 2015. The
circuit court dismissed Skydive's appeal, finding the
parties modified their previous agreement when the parties
signed the SUP and that the SUP expired by its terms on
January 31, 2014. The circuit court also found the magistrate
properly applied its rules in denying Skydive's requests
for a continuance and for a jury trial as those ...