THE STATE OF SOUTH CAROLINA In The Supreme Court

Skydive Myrtle Beach, Inc., Petitioner,

v.

Horry County, Respondent.

Appellate Case No. 2018-001910

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Horry County Larry B. Hyman Jr., Ci rcuit Court Judge,

Opinion No. 27930 Heard September 24, 2019 – Filed November 20, 2019

REVERSED

Robert Bratton Varnado, Brow n & Varnado, LLC, of Mt. Pleasant, for Petitioner.

Michael Warner Battle, Bat tle Law Firm, LLC, of Conway, for Respondent.

JUSTICE FEW: Horry County filed an action in magistrates court to eject Skydive Myrtle Beach, Inc., from a hangar at the Grand Strand Airport in North Myrtle Beach, South Carolina. The magistrates court fo und Skydive did not have any right to occupy the hangar, and ejecte d Skydive. The circuit court affirmed. Skydive appealed to the court of appeals, which dismissed the appeal on the groundit was moot. We granted Skydive's petition for a writ of certiorari. We reverse the court of appeals because we hold the appeal is not moot. On the merits, we agree with the magistrates court a nd the circuit court that Skydi ve has no right to occupy the hangar. Thus, we a ffirm the circuit court.

I. Facts and Procedural History

Horry County owns Grand Strand Airport. Until 2013, the County leased the airport to Grand Strand Aviation, which operated under the name Ramp 66. On May 10, 2012, Ramp 66 entered into an agreement w ith Skydive allowing Skydive to use "a minimum of" 2,500 square feet of what is commonly called the "bird hangar" to operate its skydiving business. The agr eement provided, "This agreement remains in effect through Grand Strand Aviation's lease with Horry County Department of Airports through July 2020 unless both par ties agree to any changes in writing."

Horry County terminated its lease with Ramp 66 in August 2013 and began its own management of the airport. On Sept ember 13, 2013, Horry County and Skydive entered into a new agreement entitled "Spa ce Use Permit." The new agreement was designed to allow Skydive to continue operations at the bird hangar while it negotiated a longer-term lease directly with the County. The Space Use Permit granted Skydive the right to "occupy and us e" a much larger portion of the bird hangar—6,800 square feet—than Skydive o ccupied under the May 2012 agreement. It also granted Skydive the right to use the hangar at night, a right Skydive did not have under the May 2012 agreement. The Sp ace Use Permit stated "it shall continue in force and effect until January 31, 2014," and "either party may terminate [it] for any reason by giving at least thirty da ys written notice to the other party."

Skydive continued to occupy the bird hangar and to operate its skydiving business after January 31, but it did not enter into a new lease. On February 19, Horry County wrote Skydive listing numerous safety-relate d concerns about S kydive's operations. The County's letter advised Skydive the Space Use Permit had expired and "you are currently occupying County prope rty without any right or authorization." The letter explained that in light of what the Count y perceived to be Skydive's poor safety record and other concerns, "Horry County is unwilling to offer Skydive a leasehold interest." Instead, the letter offered "a ne w, short-term Space Use Permit" that would allow Skydive to continue occupying the hangar until July 31, 2014. This new Space Use Permit would have imposed additional safety requireme nts that were not in the original Space Use Permit. The letter stat ed that if Skydive did not sign the new Space Use Permit within seventy-two hours, "you will need to vacate the premises immediately." Skydive did not respond to the February 19 letter.On February 28, 2014, Skydive filed a laws uit in circuit court against Horry County, Horry County Department of Airports, and several individu ally named County employees. Skydive alleged the defendants improperly c onspired to remove it from the bird hangar, breached the May 2012 agreement, and otherwise tortiously interfered with Skydive's business. The na ture and progress of that lawsuit—which is still pending—are discussed in Skydive Myrtle Beach, Inc. v. Horry County , 426 S.C. 175, 826 S.E.2d 585 (2019).

Horry County filed this ejectment action on June 5, 2014. Th e magistrates court entered an order ejecting Skyd ive from the bird hangar, a nd Skydive appealed to the circuit court. The magistrates court allo wed Skydive to remain in the bird hangar— pending the circuit court's decision on appeal—by making a monthly bond payment equal to the rent Skydive paid under th e Space Use Permit. The circuit court affirmed the ejectment order. Skydive made a motion for a stay of the order, which

the circuit court denied.

Skydive appealed the circuit court order to the court of appeals on August 24, 2015. Three years later, the court of app eals dismissed the appeal as moot. Skydive Myrtle Beach, Inc. v. Horry Cty. , 424 S.C. 298, 303, 818 S.E.2d 224, 227 (Ct. App. 2018). We granted Skydive's petition for a writ of cer tiorari to review the court of appeals '

decision.

II. Mootness

Skydive argues that when the Space Us e Permit expired on January 31, 2014, Skydive's right to occupy the bird hanga r was once again governed by the May 2012 agreement. Horry County, of course , disagrees. However, if the May 2012 agreement does control, Skydi ve retains the right to o ccupy the bird hangar "through July 2020." If the court of appeals had agreed with Skydive—or if this Court were now to agree—we could order that Skydive may move back into the bird hangar "through July 2020."

A case is moot "when judgment, if rendere d, will have no practi cal legal effect upon existing controversy." Mathis v. S.C. State Highway Dep't , 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973). This case is not moot because a decision to reverse the ejectment order could have th e practical effect of putting Skydive back in possession of the bird hangar.In support of its decision to dismiss the a ppeal as moot, the co urt of appeals relied

on Berry v. Zahler , 220 S.C. 86, 66 S.E.2d 459 (1951). In Berry , a magistrates court issued an order of ejectment against a re sidential tenant. 220 S.C. at 87, 66 S.E.2d at 459. On appeal to this Court, the te nants admitted they voluntarily vacated the premises during the appeal and that they had delivered possession of the residence

to the landlord. 220 S.C. at 87, 66 S.E.2d at 460. We st ated, "In their brief is the

statement that since the tria l before the magistrate they have vacated the premises and delivered possession to the landlord. Under these circumstances, the issue, which was the right to possession of the pr emises, has become m oot, and the appeal

will not be considered." Id. The key fact in Berry that made the tena nt's appeal moot was the tenant vacated the premises voluntarily.

Skydive did not vacate the bird hangar volunt arily. After the circuit court affirmed the ejectment order and denied Skydive's re quest for a stay of the order, ten Horry County sheriff's deputies arrived at the hangar to ensure S kydive vacated the premises by the court-ordered deadline. In contrast to the Berry tenant's voluntary relinquishment of possession, Skydive repeat edly contested all rulings by the courts

in an obvious effort to remain in the bird ha ngar. At oral argument before this Court, counsel for Skydive confirmed his client's intent to resume possession if the magistrates court's ejectment order is reversed.

In its explanation of its dismissal on the grounds of mootness, the court of appeals stated, "Skydive has not possessed the propert y in almost three years." 424 S.C. at 303, 818 S.E.2d at 227. Th e court gave no reason the three-year delay affects whether the appeal is moot. We find nothing in this record to indicate Skydive unnecessarily delayed the resolution of this appeal. While it is unfortunate the court of appeals took three years to resolve the appeal, as we have explained, the court still has the power to grant the relief Skydive seek s. Therefore, the de lay in this case has nothing to do with whether the appeal is moot.

III. Skydive's Right to Occupy the Hangar

Having determined the court of appeals s hould not have dismissed the appeal, we

turn to the merits. 1 Skydive's argument depends on the continued validity of the

1 Initially, the parties briefed to this Court only the issu e of mootness. Though our record contains the parties' briefs to th e court of appeals on the merits, after oral argument, we gave both sides the opportunity to brief the merits directly to this

Court. We later receiv ed supplemental briefs fro m Skydive and Horry County addressing the merits of whether Skydive re tains any right to occupy the bird hangar.May 2012 agreement after the execution of th e Space Use Permit. Under the terms of the May 2012 agreement, Skydive conte nds, it remains entitled to occupy the bird hangar through July 2020. The May 2012 ag reement is the only basis on which Skydive claims it has any right to occupy the hangar.

We agree with the magist rates court and the circu it court that the May 2012 agreement is no longer in effect. The Space Use Permit provides in clear and unambiguous terms it "constitutes the complete agreement of the pa rties with respect to" occupancy of the hangar and "supersedes all previous agreements." In response to this point, Skydive argues the May 2012 agreement provides that it "remains in effect through Grand Strand Aviation's l ease with Horry County Department of Airports through July 2020 unless both par ties agree to any changes in writing." When Horry County terminated its agreemen t with Grand Strand Aviation/Ramp 66, however, Horry County became the party with the right to "agree in writing" to change the relationship. It did precisely that in executing the Space Use Permit, which according to its clear and unambi guous terms expired on January 31, 2014. When the Space Use Permit expired, Skydive retained no right to continue to occupy the hangar.

IV. Conclusion

The appeal is not moot because Skydive di d not voluntarily vacate the bird hangar, and a ruling in favor of Skydive could put it back in possession. However, the Space Use Permit superseded the May 2012 agre ement, and the Space Use Permit is expired. Skydive has no right to occupy the bird hangar. We reverse the court of appeals and affirm the circuit court.

REVERSED.

BEATTY, C.J., KITTREDGE, HE ARN and JAMES, JJ., concur.

Skydive also raised procedural issues to th e court of appeals. To the extent those issues have not been addressed by the cour t of appeals or this Court, we find it unnecessary to do so because our resolution of the merits ends this case. See Futch

v. McAllister Towing of Georgetown, Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an "appellate court need not address remaining issues when disposition of prior issue is dispositive").