Maples v. Myers

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals Michael Andrew Maples, Appellant. v. Donald V. Myers and Samuel R. Hubbard, III and Wayne Wilson, Respondents. Appeal From Lexington County Marc H. Westbrook, Circuit Court Judge Unpublished Opinion No. 2004-UP-364 Submitted June 8, 2004 – Filed June 10, 2004 AFFIRMED Michael A. Maples, of West Columbia, for Appellant. Lake E. Summers and Thomas C. R. Legare, Jr., both of Columbia; and Vinton DeVane Lide, of Lexington, for Respondents. PER CURIAM: Michael Andrew Maples (“Appellant”) appeals a circuit court order granting summary judgment in favor of Donald V. Myers, Samuel R. Hubbard, III, and Wayne Wilson (collectively “Respondents”) dismissing all of Appellant’s claims against them. We affirm. FACTS This matter arises from the seizure of Appellant’s 1988 Pontiac Firebird and a number of weapons in connection with his arrest on multiple charges including “Trafficking in Marijuana” and “Trafficking in Marijuana Within Proximity of a School.” On April 22, 1995, respondent Wayne Wilson, then Chief of Police for the town of South Congaree, was informed a citizen had discovered a number of small cups containing plants which he believed were marijuana while walking in a wooded area within town limits. Later that day, a South Carolina Law Enforcement Division (“SLED”) agent accompanied Wilson to the site. On April 25, SLED agents set up a motion activated video camera at the grow site. During this period of video surveillance, Appellant visited the area several times and tended to the marijuana plants. On June 7, one hundred and ninety-four (194) marijuana plants were confiscated from the grow site. During the search of the area, an army duffel bag was found containing an M-1 rifle and ammunition. Following the seizure of the marijuana crop, SLED agents arrested Appellant in West Columbia and transported him to the South Congaree Police Department. After the arrest, other SLED agents took custody of Appellant’s personal vehicle, a 1988 Pontiac Firebird, at his place of work in Richland County and towed it to the South Congaree Police Department. [1] While in custody and after being advised of his rights, Appellant voluntarily executed a detailed written statement. In the statement, Appellant admits he germinated marijuana seeds and hauled the germinated seeds, plant food, and potting soil to the grow site in his Pontiac Firebird. He told Wilson he germinated the marijuana seeds in his bedroom. Appellant also admitted his involvement in three earlier shooting incidents, one in which Appellant fired the weapon found at the grow site seven times into an occupied mobile home. Following the statement, Appellant gave Wilson written consent to search his padlocked bedroom in his mother’s home. In the course of this search, seven loaded weapons were found and seized. On June 8, 1995, Wilson filed an “Initial Report of Seizure” covering the property seized from Appellant’s bedroom. On June 14, he filed a similar report concerning Appellant’s vehicle. The solicitor’s office, however, did not file a final forfeiture complaint against any of this property until May 2000, almost five years after the property’s seizure. Appellant was indicted by the grand jury for “Manufacturing and Possession of Marijuana With Intent to Distribute Within Proximity of a School” and “Trafficking in Marijuana” in violation of South Carolina Code section 44-53-370(e)(1)(b). Although Appellant pled guilty to the proximity charge, the trafficking charge was pled down to “Manufacturing in Marijuana 2nd.” For these offenses, Appellant was sentenced to a total of seven years imprisonment. He later pled guilty to discharging a firearm into a dwelling and three counts of assault with intent to kill, for which he received two consecutive ten-year prison terms. In 1998, Appellant brought a civil action against Wilson, both individually and in his official capacity as chief of the South Congaree Police Department, alleging unlawful conversion of the above mentioned seized property. After several amendments to his original complaint, Appellant served Respondents with the final version of the underlying lawsuit in June 2000. The final complaint, among other claims, added Respondents Donald V. Myers, circuit solicitor, and his assistant, Samuel R. Hubbard, III, as new defendants under a theory of civil conspiracy. The thrust of Appellant’s lawsuit appeared to be that Wilson improperly seized his vehicle and weapons, and, by failing to comply with the forfeiture statutes in a timely manner, Respondents conspired to deprive Appellant of his property and are liable for conversion. In November 2000, Wilson moved for summary judgment on all causes of action. Following a grant of this motion, Appellant filed a motion to alter or amend the judgment. In June 2001, while Appellant’s motion was pending, Myers and Hubbard filed their own motion for summary judgment. Wilson joined this motion, as it pertained to issues raised against him in Appellant’s pending motion to alter or amend. Following a combined hearing on both motions, summary judgment was granted to Myers and Hubbard and Appellant’s motion to alter or amend was dismissed. This appeal follows. STANDARD OF REVIEW The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003); George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment motion, this court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Laurens Emergency Med. Specialists, P.A. v. M.S. Bailey & Sons Bankers, 355 S.C. 104, 108-9, 584 S.E.2d 375, 377 (2003); Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether any triable issue of fact exists, the evidence and all factual inferences drawn from it must be viewed in a light most favorable to the nonmoving party. Sauner v. Public Serv. Auth. of South Carolina, 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003); Hendricks v. Clemson Univ., 353 S.C. 449, 455-56, 578 S.E.2d 711, 714 (2003). DISCUSSION Appellant raises several issues on appeal, all ostensibly pertaining to his underlying claims against Respondents for the illegal conversion of the above mentioned seized property, allegedly perpetuated by civil conspiracy. Conversion is an unlawful act defined as “the unauthorized assumption and exercise of the rights of ownership over goods or personal chattels belonging to another . . . to the exclusion of the owner’s rights.” Powell v. A.K. Brown Motor Co., 200 S.C. 75, 78, 20 S.E.2d 636, 637 (1942); Green v. Waidner, 284 S.C. 35, 37, 324 S.E.2d 331, 333 (Ct. App. 1984) (emphasis added). The tort of conversion, therefore, “cannot spring from the exercise of a legal right.” Steele v. Victory Sav. Bank, 295 S.C. 290, 296, 368 S.E.2d 91, 94 (Ct. App. 1988). Appellant asserts, due to several alleged statutory violations, the seizure and subsequent forfeiture of his property was not a proper exercise of Respondents’ legal rights, and therefore, each is personally liable for the conversion of his property. We disagree. I. Civil Conspiracy Appellant seems to contend that each respondent is individually liable for the acts of the other respondents under a theory of civil conspiracy. We find this theory of imputation without merit. In South Carolina a civil conspiracy requires: (1) a combination of two or more persons; (2) for the purpose of injuring the plaintiff; (3) which cause the plaintiff special damages. Vaught v. Waites, 300 S.C. 201, 208, 387 S.E.2d 91, 95 (Ct. App. 1989). “[I]n order to establish a conspiracy, evidence, direct or circumstantial, must be produced from which a party may reasonably infer the joint assent of the minds of two or more parties.” Island Car Wash, Inc. v. Norris, 292 S.C. 595, 601, 358 S.E.2d 150, 153 (Ct. App. 1987). Appellant failed to provide any evidence from which one could infer a meeting of the minds between Respondents. In fact, the only alleged communication of any kind between Wilson and the Solicitor’s Office is the statutorily required seizure notice. Notwithstanding this court’s standard of review, an argument based on mere suggestion and speculation should not survive a motion for summary judgment when no evidence is presented which creates a material issue of fact on the issue. See Rule 56(e), SCRCP. We therefore agree with the trial court in that, as a matter of law, the conspiracy claim must fail. As such, we address the possible personal liability of Myers and Hubbard (circuit solicitor and assistant solicitor who commenced final forfeiture proceedings against Appellant’s property) separately from that of Wilson (sheriff who initially seized the property). II. Personal Liability of Myers and Hubbard Appellant contends that Myers and Hubbard are personally liable for the value of his seized property because the final proceedings for forfeiture were commenced in an untimely fashion. We disagree. There is no need to address the merits of Appellant’s various assertions that the proper statutory forfeiture procedures were not followed to the letter. It is uncontested that section 44-53-530 grants the solicitor’s office the power to petition the circuit court for the forfeiture of property seized under 44-53-520. S.C. Code Ann. § 44-53-530 (2002) (“(a) Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of . . . the circuit solicitor or his designee”). As such, Myers and Hubbard, when commencing the final forfeiture proceedings, were acting solely in their official, not personal, capacities. Even assuming the efficacy of the alleged statutory violations (namely that Myers and Hubbard purposefully delayed in commencing final forfeiture proceedings against Appellant’s property in violation of section 44-53-520 and various statutes of limitation [2] ), because Myers and Hubbard acted in no way outside their official capacities as prosecutorial agents of the State, they enjoy an absolute immunity from civil suits. See Williams v. Condon, 347 S.C. 227, 553 S.E.2d 496 (Ct. App. 2001) (discussing in great length the history, policy and modern application of prosecutorial immunity from civil liability). While we do not in any way condone the solicitor’s office’s undue delay in bringing final forfeiture proceedings following the property’s seizure, Appellant states no plausible grounds in his pleadings for Myers or Hubbard’s personal liability for the value of Appellant’s property. Appellant seems to assert on appeal, albeit vaguely, that he is statutorily provided a remedy by South Carolina section 44-56-586, which reads as follows: (a) Any innocent owner . . . may apply to court of common pleas for the return of any item seized under the provisions of § 44-53-520. * * * * * (b) The court may return any seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence: (1) in the case of an innocent owner, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture. S.C. Code Ann. § 44-53-586 (2002). Section 44-53-586 lends Appellant no support. First, it would border on frivolity to suggest Appellant qualifies as an “innocent owner.” Second, nothing in this section grants an owner a civil cause of action for damages against state agents for carrying out the forfeiture proceedings on behalf of the State. As such, we conclude the trial court’s grant of summary judgment to respondents Myers and Hubbard was proper. [3] III. Personal Liability of Wilson We first make note that none of Appellant’s issues concerning the final forfeiture proceedings against his property properly apply to Wilson. It is specifically provided in the first sentence of section 44-53-530 that forfeiture proceedings “must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee.” S.C. Code Ann. § 44-53-530 (2002). Accordingly, because Wilson did not have authority to institute forfeiture proceedings, he could not have any duty to do so nor any liability to Appellant for failure to do so in a timely manner. However, as Appellant, again rather vaguely, appears to argue Wilson is liable for conversion and concomitant damages arising from the unlawful seizure of his property, we address legality of that seizure. See Steele, 295 S.C. at 296, 368 S.E.2d at 94 (Ct. App. 1988)(holding that conversion cannot arise from the exercise of a legal right). Appellant contends that the initial seizure of his property was unlawful because: 1) no finding was made as to the weight of the marijuana; 2) there was no probable cause to seize the weapons found in his bedroom; and 3) his vehicle was towed from a location outside of respondent Wilson’s jurisdiction. A. Weight of Marijuana Appellant argues that his vehicle was unlawfully seized because the State failed make a finding as to the weight of the marijuana found at the grow site prior to the vehicle’s seizure. Appellant’s property was seized pursuant to South Carolina Code section 44-53-520(b), which reads: Any property subject to forfeiture under this article may be seized . . . Seizure without process may be made if . . . (4) the department has probable cause to believe that the property was used or is intended to be used in violation of this article. S.C. Code Ann. § 44-53-520(b) (2002). Appellant contends Wilson had no probable cause to seize the vehicle because, without a determination of the marijuana’s weight, the property was not determinatively “used . . . in violation of [the] article.” Appellant erroneously bases this argument on the following language of section 44-53-520, the statute which makes certain property subject to forfeiture to the State when used to facilitate the “production, manufacturing, distribution, sale, importation, exportation, or trafficking” of controlled substances: No motor vehicle may be forfeited to the State under this item unless it is used, intended for use, or in any manner facilitates a violation of Section 44-53-370(a), involving at least one pound or more of marijuana . . . S.C. Code Ann. 44-53-520 (2002). Appellant, however, overlooks the fact that this statute, continues to read “ . . . or unless it is used . . . or in any manner facilitates a violation of Section 44-53-370(e).” Id. (emphasis added) Section 44-53-370(e) defines the offense of “trafficking in marijuana” as the cultivation of “one hundred to one thousand marijuana plants regardless of weight.” S.C. Code Ann. 44-53-370(e)(1)(b) (2002). In his written statement, Appellant confessed to the cultivation of approximately 200 marijuana plants and the specific use of his vehicle in facilitating such. A signed written statement confessing to a charged offense as well as specifically outlining the use of certain property in facilitating that offense certainly provided the police with section 44-53-520’s requisite probable cause for the property’s seizure. Because Appellant’s vehicle was seized pursuant to the forfeiture statute’s reference to 44-53-370(e)(1)(b) and not 370(a) (which is limited to only those offenses involving at least one pound of marijuana), a finding of the plant’s actual weight was unnecessary. B. Probable Cause to Seize the Weapons Found in Appellant’s Bedroom Appellant argues that the seizure of the weapons and other items from his bedroom was unlawful because Wilson lacked probable cause to seize the items. Again, Appellant’s own confession went beyond the threshold of probable cause in regard to the property’s use in facilitating a violation of 44-53-370(e). Appellant admitted in writing to cultivating the marijuana found at the grow site. He stated to Wilson that the germination of the crop, mentioned in the written statement, took place in his bedroom. He also admitted to involvement in three shooting incidents involving firearms located in the bedroom. Furthermore, Appellant agreed in writing to allow a search of the padlocked bedroom (located in his parent’s home). “The mere probability that a crime is being committed [or, as here, that property is being used in furtherance of a crime], rather than a prima facie showing of criminal [use], is the standard probable cause.” State v. Dean, 282 S.C. 136, 139, 317 S.E.2d 744, 745 (1984). The above confession and the location of the weapons in such close proximity to the admitted germinating area of the marijuana crop provided Wilson with requisite probable cause that the items were subject to forfeiture under section 44-53-520, thus, their seizure was proper. C. The Towing of the Vehicle Appellant also argues Wilson personally towed Appellant’s vehicle from an area outside of Wilson’s jurisdiction, thus, he is liable in an individual capacity for the conversion of Appellant’s vehicle. We find this argument without merit. According to Wilson, SLED agents towed Appellant’s vehicle to the South Congaree Police Department, where Wilson later executed a seizure report. Appellant submitted no evidence at the hearing to refute Wilson’s account of the towing. His assertions as to Wilson’s personal actions are, in fact, pure speculation as Appellant was in custody at the time of the towing. Furthermore, Appellant’s argument that Wilson’s alleged behavior gives rise to personal liability is wholly conclusory, as Appellant cites no authority for this position. See Glasscock, Inc. v. U.S. Fidelity & Guar. Co., 348 S.C. 76, 557 S.E.2d 689 (Ct. App. 2001) (“South Carolina law clearly states that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.”) Finally, Appellant’s unlawful jurisdiction theory in regard to Wilson’s alleged towing of the Firebird is raised for the first time on appeal, thus unpreserved for out review. See Fraternal Order of Police v. South Carolina Dep’t of Revenue, 352 S.C. 420, 435, 574 S.E.2d 717, 725 (2002) (“Generally, claims or defenses not presented in the pleadings will not be considered on appeal.”) CONCLUSION The grant of summary judgment in favor of Respondents is AFFIRMED. ANDERSON, HUFF, and KITTREDGE, JJ., concur. [1] Appellant asserts that Wilson, not SLED, personally towed the vehicle. [2] S.C. Code Ann. § 44-53-520 (2002) (“In the event of seizure pursuant to subsection (b), proceedings under § 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time”); see also S.C. Code Ann. § 15-3-550 (Supp. 2003). [3] As our grounds for affirming the trial court are not precisely those raised by Respondents’ briefs, we cite Rule 220(c), SCACR, and I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420-21, 526 S.E.2d 716, 724 (2000), for the proposition that an appellate court any affirm the lower court’s judgment for any reason appearing in the record.