THE STATE OF SOUTH CAROLINA

In The Court of Appeals

City of Charleston, Appellant,

v.

City of North Charleston and Millbrook Plantation, LLC, 

Respondents.

AND

Millbrook Plantation, LLC, Plaintiff,

v.

City of Charleston, Defendant.

AND

City of Charleston, Plaintiff,

v.

City of North Charleston and Millbrook Plantation, LLC, 

Defendants.

Appellate Case No. 2019-000903

Appeal From Charleston County

Eugene C. Griffith, Circuit Court Judge

Opinion No. 5966

Heard October 11, 2022 – Filed February 1, 2023

AFFIRMED
Frances Isaac Cantwell, of City of Charleston Legal 

Department; Julia Parker Copeland, of Hinchey Murray 

& Pagliarini, LLC; and Wilbur E. Johnson and Russell 

Grainger Hines, both of Clement Rivers, LLP, all of 

Charleston, all for Appellant.

Bruce E. Miller, of Bruce E. Miller, P.A., of Charleston,

for Respondent Millbrook Plantation, LLC.

Derk Van Raalte, IV, of City of North Charleston Legal 

Department; and J. Brady Hair, of Law Office of J. Brady 

Hair, both of North Charleston, for Respondent City of 

North Charleston.

WILLIAMS, C.J.: This appeal arises from three consolidated actions1

challenging cross-annexations by Appellant City of Charleston (Charleston) and 

Respondent City of North Charleston (North Charleston) of certain real property 

(Parcel 006) owned by Respondent Millbrook Plantation, LLC (Millbrook). 

Charleston argues the circuit court erred in concluding: (1) Charleston lacked 

standing to challenge North Charleston's annexation of Parcel 006 because 

North Charleston's 2017 Ordinance did not annex property previously annexed in 

2005 (Parcel 006-1) and (2) the Supreme Court of South Carolina has declined to 

adopt the "prior jurisdiction doctrine." We affirm. 

FACTS/PROCEDURAL HISTORY

Parcel 006 consists of approximately thirty-one acres of real property located on 

South Carolina Highway 61 in Charleston County. On May 10, 2005, Charleston 

adopted an ordinance (the 2005 Ordinance) annexing the portion of Parcel 006 

located within 100 feet of Highway 61 (Parcel 006-1). On December 19, 2017, 

Charleston began the annexation of the remainder of Parcel 006 (the Charleston 

Ordinance) by accepting an annexation petition under the "75% Annexation 

 

1 These actions are individually designated as Case Nos. 2018-CP-10-0846 

("Millbrook I"); 2018- CP-10-2131 ("Millbrook II"); and 2018-CP-10-2539 

("Millbrook III").
Method" pursuant to subsection 5-3-150(1) of the South Carolina Code (2004) and 

voting to have a public hearing on the petition.

Two days later, North Charleston gave first reading to its petition to annex Parcel 

006 (the 2017 Ordinance) under the "100% Annexation Method" of subsection 

5-3-150(3), which was adopted seven days later. The 2017 Ordinance's property 

description unintentionally included Parcel 006-1, which Charleston previously 

annexed in 2005. Weeks later, on January 23, 2018, Charleston City Council held 

a public hearing and gave first reading to the Charleston Ordinance, which 

attempted to annex the same parcel North Charleston annexed the prior month. 

At the time North Charleston drafted the 2017 Ordinance, Charleston County 

records did not reflect the existence of Parcel 006-1. Therefore, on March 15, 

2018, North Charleston gave first reading to the 2018 Ordinance, purporting to 

clarify the 2017 Ordinance's legal description by discounting any perceived intent 

to annex Parcel 006-1 and reaffirming its intent to annex only the remainder of 

Parcel 006. The 2018 Ordinance states in part:

The City of North Charleston recently annexed Parcel 

TMS #361-00-00-006. The clearly expressed intent of the 

ordinance was to annex only this parcel. Based upon 

then-existing Charleston County TMS mapping data[,]

the map and legal description described Parcel 

361-00-00-006 as extending all the way to Ashley River 

Road. County TMS mapping data has recently been 

corrected to reflect the existence of a sub-parcel. 

361-00-00-006-1. This sub-parcel is a 100' deep strip of 

land along the side of Ashley River Road. Based on 

updated County records[,] it appears that this sub-parcel 

was annexed into the City of Charleston in 2005. 

Obviously, it was North Charleston's intent to annex 

unincorporated parcel 361-00-00-006, not annex property 

already within the jurisdiction of any another City. The 

attached ordinance would amend Ordinance 2017-083 to 

make the boundaries consistent with this intent and 

consistent with the now corrected County data.

On March 22, 2018, North Charleston adopted the 2018 Ordinance. Five days 

later, Charleston filed the summons and complaint in Millbrook I, asserting that the 

2017 Ordinance was invalid because (1) the 2017 Ordinance illegally included 
Parcel 006-1 and (2) Charleston took the first step to annex the remainder of Parcel 

006 before North Charleston, entitling Charleston to proceed with its annexation 

without interference pursuant to the "prior pending jurisdiction rule." Additionally, 

Charleston City Council adopted the Charleston Ordinance on April 10, 2018. 

Shortly thereafter, Millbrook filed the summons and complaint in Millbrook II

challenging the Charleston Ordinance. 

On May 18, 2018, Charleston filed the summons and complaint in Millbrook III

challenging the 2018 Ordinance adopted by North Charleston. Charleston alleged 

in Millbrook III that it obtained prior jurisdiction over Parcel 006 based upon the 

"prior pending proceedings rule . . . by accepting the annexation petition, holding a 

public hearing, and giving first reading to the ordinance annexing [Parcel 006] into 

the City prior to North Charleston's beginning the process of passing [the 2018 

Ordinance]." Further, Charleston alleged the 2018 Ordinance could not cure the 

substantive defect contained in the 2017 Ordinance's legal description

incorporating Parcel 006-1. 

Millbrook moved to dismiss Millbrook I and Millbrook III, arguing Charleston 

lacked standing to challenge a 100% annexation petition. The circuit court granted

Millbrook's motion to dismiss and held Millbrook's annexation into North 

Charleston was complete on December 28, 2017, upon the enactment of the 2017 

Ordinance. The circuit court stated our supreme court has ruled that a municipality 

has no standing to challenge a 100% annexation petition and the only non-statutory 

party that may challenge a municipal annexation is the State through a quo 

warranto action. Charleston acknowledged that the State has not challenged either 

the 2017 or the 2018 Ordinance. Furthermore, the circuit court examined the 

language of the 2017 Ordinance and found it never made any claim to annex Parcel 

006-1 and thus did not attempt to annex it. Lastly, the circuit court held our 

supreme court declined to adopt the prior pending proceedings rule in City of 

Columbia v. Town of Irmo and likewise declined to do so. See 316 S.C. 193, 447 

S.E.2d 855 (1994). As a result, the circuit court found North Charleston's 2017 

Ordinance properly annexed Parcel 006 on December 28, 2017, and Charleston 

had no standing to challenge this annexation. 

ISSUES ON APPEAL 

I. Did the circuit court err in concluding North Charleston's 2017 Ordinance did 

not intend to annex Parcel 006-1?
II. Did the circuit court err in concluding the Supreme Court of South Carolina 

has declined to adopt the prior jurisdiction doctrine?

STANDARD OF REVIEW

"In reviewing the dismissal of a claim for failure to state facts sufficient to 

constitute a cause of action under Rule 12(b)(6), SCRCP, the appellate court 

applies the same standard of review as the trial court." Sloan Constr. Co. v. 

Southco Grassing, Inc., 377 S.C. 108, 112, 659 S.E.2d 158, 161 (2008). 

A ruling on a 12(b)(6) motion to dismiss must be based 

solely upon the allegations set forth on the face of the 

complaint and the motion cannot be sustained if facts 

alleged and inferences reasonably deducible therefrom 

would entitle the plaintiff to any relief on any theory of 

the case. 

Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987). "The question is 

whether, in the light most favorable to the plaintiff, and with every doubt resolved 

in his behalf, the complaint states any valid claim for relief." Plyler v. Burns, 373 

S.C. 637, 645, 647 S.E.2d 188, 192 (2007).

LAW/ANALYSIS

I. Statutory Standing 

Charleston argues it possesses standing to challenge North Charleston's annexation 

of Parcel 006 as the 2017 and 2018 Ordinances infringe upon its "proprietary 

interests or statutory rights" because the 2017 Ordinance included Parcel 006-1, 

which was annexed into Charleston in 2005. Charleston relies on Bostick v. City of 

Beaufort in arguing that the 2017 Ordinance was fatally flawed because the 

inaccuracies in the description of the proposed property to be annexed created a 

substantive defect that could not be corrected through a subsequent ordinance. See 

307 S.C. 347, 350, 415 S.E.2d 389, 391 (1992). We disagree. 

Our supreme court in Bostick held: 

Procedural or technical deficiencies in an ordinance may 

be corrected by a subsequent ordinance, but not 
substantive defects. We conclude that omission of the 

date from two of the petitions constituted a technical flaw 

in Ordinance 0-07-89. This flaw was corrected by 

Ordinance 0-31-89, which effectively ratified the valid 

portion of Ordinance 0-07-89. Conversely, the omission 

of descriptions for the area to be annexed and failure to 

also shade such property on the plat which shows shaded 

the area to be annexed is a substantive defect in the 

petitions. We find that Ordinance 0-07-89 was fatally 

flawed from its inception as to annexation of the 

Bosticks' property.

307 S.C. at 350, 415 S.E.2d at 391. The court specifically referenced the property 

description requirement of subsection 5-3-150(1), which states, "The petition shall 

contain a description of the area to be annexed and there shall be attached to the 

petition a plat of the area to be annexed . . . ." Bostick, 307 S.C. at 349–50, 415 

S.E.2d at 391. Therefore, the court found the omission of the property description 

for the area to be annexed and the failure to show this area on the plat was 

substantive because it was in direct contravention of subsection 5-3-150(1)'s 

statutory requirements. 

Here, the 2017 Ordinance does not omit the property description but inadvertently 

incorporates Parcel 006-1 (a parcel that did not exist at the time North Charleston 

drafted the 2017 Ordinance). Subsection 5-3-150(1) requires that "the petition 

must contain a description of the area to be annexed and there must be attached to 

the petition a plat of the area to be annexed." S.C. Code Ann. § 5-3-150(1) (2004). 

The record demonstrates that North Charleston sufficiently complied with both of 

subsection 5-3-150(1)'s requirements by including a description of the property to 

be annexed and attaching a plat of the area. North Charleston's inadvertent 

inclusion of Parcel 006-1 based upon then existing county information was a 

technical deficiency capable of correction by the 2018 Ordinance. See Bostick, 

307 S.C. at 350, 415 S.E.2d at 391; see also 62 C.J.S. Municipal Corporations § 

102 ("[W]here a statute or ordinance so requires, a map, plan, or plat must be filed 

or recorded and approved by municipal or other authorities. A substantial 

compliance with the statutes is sufficient."); § 8:33 Boundary changes—

Procedures, 1 Local Government Law § 8:33 ("Courts have generally held that a 

description which conforms substantially to the provisions of the pertinent statute 

suffices, allowing leeway for slight or trivial errors . . . ."). Further, South Carolina 

does not require scientific precision when describing property in other property 

disputes. See Hoyler v. State, 428 S.C. 279, 295, 833 S.E.2d 845, 853–54 (Ct. 
App. 2019) ("While a property description need not be perfect, it must allow one 

examining it to identify the property conveyed; otherwise, the conveyance is 

void."). 

We therefore affirm the circuit court's finding that the 2017 Ordinance was lawful 

as it did not attempt to annex Parcel 006-1 but, instead, attempted to clarify its 

intent to annex only Parcel 006. Consequently, Charleston's argument that it 

possesses standing based on infringement of its statutory and proprietary rights is 

moot. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 

S.E.2d 591, 598 (1999) (declining to address remaining issues when a prior issue 

was dispositive); Ex parte State ex rel. Wilson, 391 S.C. 565, 572, 707 S.E.2d 402, 

406 (2011) ("The 100% petition method provides neither an express notice 

provision nor an authorization for third parties to challenge the annexation. . . . 

Rather, '[i]n order to challenge a 100% annexation, the challenger must assert an 

infringement of its own proprietary interests or statutory rights.'" (quoting St. 

Andrews Pub. Serv. Dist. v. City Council of Charleston, 349 S.C. 602, 604, 564 

S.E.2d 647, 648 (2002))); id. at 573–74, 707 S.E.2d at 407 ("The ordinance recites 

that the annexation was achieved using the 100% petition method. If we went 

behind that assertion without a proper plaintiff, we would be inviting a sliding 

scale for standing: the more meritorious a claim appears, the more relaxed the 

standing requirement would be. We rejected such reasoning when we overruled 

Quinn v. City of Columbia."). 

II. Prior jurisdiction doctrine

Charleston argues that before North Charleston gave first reading to either the 

2017 Ordinance or the 2018 Ordinance, Charleston's City Council already accepted 

a petition to annex Parcel 006 and ordered a public hearing on the matter. 

According to Charleston, under the common law "prior jurisdiction doctrine" also 

called the "prior pending proceedings rule," this entitled Charleston to complete the 

annexation without interference. However, our supreme court has previously 

declined to address whether these common law doctrines apply in South Carolina. 

See City of Columbia v. Town of Irmo, 316 S.C. 193, 196, 447 S.E.2d 855, 857 

(1994) ("We decline to reach the issue of whether the 'prior pending proceedings'

rule should be adopted by this Court." (emphases added)). As such, the circuit 

court did not err in holding that Charleston lacks current or existing precedent 

supporting this alternative argument for standing.

Based on the foregoing analysis, the circuit court is
AFFIRMED. 

THOMAS, J., and LOCKEMY, A.J., concur.