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Supreme Court Seal
South Carolina
Judicial Department
2005-UP-414 - Horger v. Orangeburg County


In The Court of Appeals

Michael P. Horger and Stanley V. Kiser,        Appellants,

In Re:  Road Closing

Of whom Orangeburg County Fire Commission, Orangeburg Consolidated School District Three, Doug Shuler, Sr., and Catherine J. Breaker are,        Respondents.

Appeal From Orangeburg County
Olin D. Burgdorf, Master-in-Equity

Unpublished Opinion No. 2005-UP-414
Heard June 7, 2005 – Filed June 27, 2005


Virgin  Johnson, Jr., of Orangeburg and Robert J. Thomas, of Columbia, for Appellants.

D’Anne Haydel, of Orangeburg, David S. Doty and Andrea E. White, both of Columbia and John G. Felder, of St. Matthews, for Respondents.

PER CURIAM:  Michael Horger and Stanley Kiser (Appellants) appeal the master-in-equity’s order denying their request made pursuant to S.C. Code Ann. § 57-9-10 (1991) to close a portion of Vincent Drive that crosses their property in Orangeburg County.  We affirm.

1.  We find there is no evidence to support Appellants’ contention that they entered into an agreement with the Fire District to leave the road open only until a new fire station became available to serve the area in the vicinity of the road.  Appellants assert under this agreement the Fire District agreed to withdraw its objection to the road closing. 

In their brief, Appellants cite to their attorney’s statement during the hearing in this matter that they had entered into such an agreement with the Fire Department.  Appellants do not, however, cite to any evidence in the record containing proof of such an agreement.  See, e.g., Historic Charleston Foundation v. Krawcheck, 313 S.C. 500, 443 S.E.2d 401 (Ct. App. 1994) (stating the arguments of counsel generally cannot be considered as evidence when deciding factual issues); Gilmore v. Ivey, 290 S.C. 53, 348 S.E.2d 180 (Ct. App. 1986) (holding the statements of counsel are not considered factual evidence).  The burden is on an appellant to furnish a sufficient record on appeal from which this Court can make a review.  Germain v. Nichol, 278 S.C. 508, 299 S.E.2d 335 (1983).  Because we do not find any evidence in the record to support Appellants’ contention that an agreement existed, we find no error in this regard.

2.  We next address Appellants’ argument that the School District did not have standing to object to the closure of the road.  Appellants argue all school bus transportation is administered by the South Carolina Department of Education pursuant to section 59-67-410 of the South Carolina Code.  See S.C. Code Ann. § 59-67-410 (2004) (“The control and management of all school bus transportation in the State shall be vested in the State Board of Education.”).  They contend the State of South Carolina, therefore, not the School District, has standing to object to the closing of the road.

Initially, we question whether this issue is preserved for appeal.  Although the parties discussed standing at the hearing and the master orally indicated he believed the School District had standing, the master did not include a specific ruling on the issue of standing in his final, written order, and Appellants did not file a motion to alter or amend the master’s order pursuant to Rule 59(e), SCRCP with regard to this issue.  See Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122 (1991) (holding an issue must be both raised to and ruled on by the court and if the issue is not explicitly addressed in the court’s order, the party should file a motion to alter or amend the judgment to include a ruling on the matter). 

In any event, even assuming the issue is preserved, given the School District’s obligations under the Regulations of the South Carolina Board of Education to supervise school transportation programs and to prepare routes to be approved by the Department of Education, we find the School District has a real, material, or substantial interest in the subject matter of the action and thus has standing to object to the road closing.  See 24 S.C. Code Ann. Regs. 43-80(A) (Supp. 2004) (“The school district board of trustees shall be responsible to the State Board of Education for the supervision of the school transportation program in the district.”); 24 S.C. Code Ann. Regs. 43-80(E) (Supp. 2004) (“Each school district shall prepare route descriptions and maps in accordance with laws and regulations and, upon approval of the district’s board of trustees, shall submit the route descriptions and maps to the designated representative of the State Department of Education by October 15th of each year.”); Sea Pines Ass’n for the Protection of Wildlife, Inc. v. South Carolina Dep’t of Natural Resources, 345 S.C. 594, 600, 550 S.E.2d 287, 291 (2001) (“To have standing, one must have a personal stake in the subject matter of the lawsuit.  In other words, one must be a real party in interest.”); Charleston County Sch. Dist. v. Charleston County Election Comm’n, 336 S.C. 174, 181, 519 S.E.2d 567, 571 (1999) (“A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action.” (citation omitted)). 

3.  We find the issue regarding title to the property underlying the road is not properly before us on appeal.  Appellants did not raise the issue of title to the property in their complaint, nor did they seek to amend their pleadings to include an action to quiet title.  Further, the master specifically states in his order that he was not deciding title in this action, and Appellants did not file a Rule 59(e), SCRCP motion seeking to obtain a ruling on this issue.  Thus, we find it was not properly preserved for our review.  See Life of Ga. Ins. Co. v. Bolton, 333 S.C. 406, 509 S.E.2d 488 (Ct. App. 1998) (stating a matter not ruled upon by a master-in-equity nor addressed in an appropriate post-trial motion was not preserved for appeal); Langehans, 347 S.C. at 353, 554 S.E.2d at 684 (holding an issue must be both raised to and ruled on by the court and if the issue is not addressed in the court’s order, the party should file a motion to alter or amend the judgment to include a ruling on the matter). 

4.  Finally, we find no merit to Appellants’ remaining arguments to support their contention that the master improperly denied their petition to close a portion of Vincent Drive.  Although there is opposing evidence, we conclude there is evidence in the record to support the master’s determination that it was in the best interest of all concerned to deny the petition.  The Fire District’s Director of Fire Services, Clarence Ball, Jr., testified the road closing would adversely affect the ability of the fire protection services and emergency ambulance services to respond to areas in the vicinity of the road due to an increased response time.  The School District’s Transportation Supervisor, Clifford Miller, testified closing the road would necessitate changes in the bus routes for area schools that would increase travel times and raise safety concerns.  Doug Shuler, Sr. and Catherine Breaker, area residents, testified regarding the hardships they would encounter if the road were closed.  Thus, considering all of the evidence, we hold the master did not abuse his discretion in denying Appellants’ petition to close the road.  See S.C. Code Ann. § 57-9-20 (1991) (providing the court may close a road when it determines “that it is to be the best interest of all concerned”); First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992) (stating the court’s decision to grant or deny an application to close a road pursuant to section 57-9-10 will be upheld absent an abuse of discretion); Zabinski v. Bright Acres Assocs., 346 S.C. 580, 601, 553 S.E.2d 110, 121 (2001) (“An abuse of discretion occurs where the trial court is controlled by an error of law or where the trial court’s order is based on factual conclusions without evidentiary support.”).