NOTE: See the related story in Tuesday’s issue.
STATE OF SOUTH CAROLINA
COUNTY OF DILLON
IN THE COURT OF COMMON PLEAS
FOURTH JUDICIAL CIRCUIT
C/A No. 2017-CP-17-351
JAMIE CALHOUN ESTES, AS TREASURER OF DILLON COUNTY,
Plaintiff,
v.
RODNEY BERRY, AS ADMINISTRATOR OF DILLON COUNTY AND IN HIS CAPACITY AS THE CHIEF OFFICER OF THE DILLON COUNTY GOVERNMENT; DILLON COUNTY BOARD OF EDUCATION; AND NORTHEASTERN TECHNICAL COLLEGE,
Defendants.
ORDER
This case involves the passage of Dillon County’s 2017-2018 Budget and its inclusion of Local Option Sales Tax (LOST) funds traditionally allocated to the Dillon County Board of Education in that budget.
Plaintiff Jamie Estes, the Dillon County Treasurer, filed this case on July 10, 2017 seeking a declaration as to the procedural and substantive legality of Dillon County’s 2017-2018 budget. Defendant Dillon County Board of Education filed crossclaims against Defendant Rodney Berry (the County Administrator) seeking a declaratory judgment that the County’s 2017-2018 budget wrongfully subsumed the Board’s share of LOST revenues and injunctive relief prohibiting the County from receiving those revenues. A bench trial was held from September 14-15, 2017, where the Court heard the testimony of sixteen witnesses and the legal arguments of the parties.
The questions before the Court are (1) whether the Dillon County’s 2017-2018 budget was passed under improper process, and (2) whether Dillon County could lawfully include a one-half share of LOST fund revenues in its budget that was traditionally allocated to the Defendant Board. The Court finds that the 2017-2018 budget was improperly altered between its second and third readings without recorded amendments; however, the Court holds a “Supplemental” 2017-2018 budget was properly passed. Thus, the ultimate inquiry is whether Dillon County can lawfully include the Board’s historic portion of LOST revenues in its budget. The Court finds it cannot, and that County LOST fund revenues should be split evenly between the County and Board until a superseding referendum is passed.
FINDINGS OF FACT
Dillon County attempted to pass a LOST in 1990 to make building improvements to its County Jail. That referendum failed by a wide margin. County Council minutes reflect that Dillon County decided in the summer of 1995 to attempt another LOST referendum in the 1995 General Election. That summer, Dillon County Councilmembers, members of the Defendant Board, and School and County officials met to discuss working together to pass the LOST referendum and share in the proceeds. Board Chairman Richard Schafer and Superintendent Ray Rogers testified that an agreement was reached whereby the Board would lead the political effort in favor of the LOST referendum and the Board and County would split the County share of revenue dollars thereafter.
Former Councilmember James Webster, called by the Board, and Councilmember Harold Moody, called by Defendant Berry, both testified that the agreement to work with the Board to pass the LOST referendum and halve the monies thereafter was formalized at County Council’s September 1, 1995 meeting. Notes from that meeting corroborate that a unanimous vote in favor of the Board and County’s agreement occurred at the meeting. Contemporaneous newspaper articles, the County’s 1996-1997 audit report, and the Defendant Board’s minutes also corroborate the existence of the agreement. The official meeting minutes. S.C. Code Ann. 4-10-30(B):
Must a one percent sales and use tax be levied in Dillon County for the purpose of allowing a credit against a taxpayer’s county and municipal ad valorem tax liability and for the purpose of allowing a credit against a taxpayer’s county and municipal operations in the Dillon County area.
An advertisement bearing language agreed upon by the Board and County at the September 1, 1995 Meeting ran in the Dillon Herald approximately two weeks before the November General Election and stated:
FACT: THE COUNTY PART OF THE DISTRIBUTION WILL BE DIVIDED EQUALLY BETWEEN THE COUNTY AND THE COUNTY SCHOOL BOARD WITH ALL PROCEEDS BEING USED FOR BUILDING REPLACEMENT OR REPAIR ONLY.
FACT: THE COUNTY AND SCHOOLS WILL USE THE FUNDS FOR BUILDINGS ONLY NOT FOR ADMINISTRATION OR THE GROWTH OF GOVERNMENT.
No witnesses denied the existence of the County and Board’s agreement. Testimony revealed that in accordance with the agreement, school officials encouraged employees, local pastors, and other members of the community to support the LOST Referendum. The referendum passed approximately 75% to 25%. Several witnesses testified that they were aware of the split of LOST revenues between the Board and County when they voted in favor of the LOST Referendum, and that the split in revenues motivated their vote in favor of the Referendum.
The Board, since passage, has received one half of County LOST revenues each year until present. The County is experiencing financial difficulties associated with changes in state retirement law and incentives used to encourage the placement of an Inland Port in Dillon County. The County, rather than cutting costs or increasing revenue, included the share of LOST revenues traditionally allocated to the Board in its 2017-2018 budget. The County’s 2017-2018 budget included an approximate three percent increase from the prior year’s budget, and its budget workshop notes reflect that County officials suggested now was a politically expedient time to divert the Board share of LOST revenues.
The County, by 4-3 vote, approved a second reading of its 2017-2018 fiscal year budget ordinance, wherein the County retained all LOST revenues, on June 9, 2017. A third reading for the 2017-2018 budget was set for June 28, 2017. Several individuals signed up to speak within the public comment section of that meeting. Those speakers complained about the seizure of Board LOST monies, but their time for public comment was capped at three minutes and, within their three minutes, their public comment was cut off on the asserted basis that they were not speaking about the budget. Councilman Stevie Grice, at the June 28, 2017 meeting, moved not to pass the third reading of the 2017-2018 budget on the basis of changes to the budget between the Second and Third Reading; that motion passed by a 4-3 vote. The meeting minutes, regarding that motion and vote, state the following:
Stevie Grice said that he did not feel like the budget should be voted on today. He said that he did not know exactly what was in the budget; he had not seen it since it had been revised and things put in and taken out. Stevie Grice motioned to not pass third reading of the budget. Harold Moody seconded. Voting for the motion were Harold Moody, Stevie Grice, Robbie Coward and TF Finklea. Voting for the motion were Harold Moody, Stevie Grice, Robbie Coward, and TF Finklea. Voting opposed were Archie Scott, James Campbell, and Jack Scott.
A special call meeting was held on June 30, 2017, where Dillon County gave Third Reading to its 2017-2017 budget. There, the County, by two 4-3 votes, removed $150,000.00 in the budget meant to compensate the Board for taking the LOST monies, and then passed the 2017-2017 budget. Although Grice’s comments at the July 28, 2017 Council Meeting reflected multiple changes to the 2017-2018 budget, only one formal amendment was made publically (the removal of $150,000.00 for the Board). The County gave Second and Third Reading to a new “supplemental” 2017-2018 after this lawsuit was filed. That budget placed the traditional county share of LOST revenues in the County’s general fund, but held the remaining Board portion in escrow pending this Court’s ruling.
Board witnesses testified that the Board has used LOST monies for several necessary facility repair and replacement projects over the years. The LOST revenues are currently being used as debt service on a $60,000,000.00 USDA Rural Development Loan for capital projects, which has over 30 years of payment outstanding. Board Finance Director, Doug Broome, testified that the County’s seizure of LOST monies will result in a detriment to the Board. County Auditor Kay McKenzie also testified that the seizure of the Board’s share of LOST revenues may also require a mandatory millage increase.
STANDARD OF REVIEW
“A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue.” Felts v. Richland Cty., 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991) “An issue essentially one at law will not be transformed into one in equity simply because declaratory relief is sought.” Id. “In an action at law tried without a jury, the appellate court will not disturb the trial court’s findings of fact unless there is no evidence to reasonably support them.” Crossman Communities of N. Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 46-47, 717 S.E.2d 589, 592 (2011). “When this court is sitting in equity, and thus viewing evidence for its preponderance, we are to consider the equities of both sides, balancing the two to determine what, if any, relief to give.” Straight v. Goss, 383 S.C. 180, 206, 678, S.E.2d 443, 457 (Ct. App. 2009); citing, Anderson v. Buonforte, 365 S.C. 482, 493, 617 S.E.2d 750, 755 (Ct. App. 2005). “Courts have the inherent power to do all things reasonably necessary to insure that just results are reached to the fullest extent possible.” Ex parte Dibble, 279 S.C. 592, 595, 310 S.E.2d 440, 442 (Ct. App. 1983). “Equality is equity.” Nash v. Gardner, 232 S.C. 215, 222, 101 S.E.2d 283, 286 (1957). “A court of equity abhors forfeitures, and will not lend its aid to enforce them.” Regions Bank v. Wingard Properties, Inc., 394 S.C. 241, 256, 715 S.E.2d 348, 356 (Ct. App. 2011).
LOCAL OPTION SALES TAX
Act 317 of 1990 authorized counties to collect a Local Option Sales Tax (LOST) where approved by voters via a referendum S.C. Code Ann. 4-10-10 at seq. At least seventy-one percent of LOST tax revenues must be devoted to a property tax credit. S.C. Code Ann. 4-10-90(5). The remaining twenty-nine percent is allocated to a County/Municipal Revenue Fund. Id. State law defines the process for LOST approval and requires that a LOST referendum be placed on a General Election ballot that “must read substantially as follows.”
Must a one percent sales and use tax be levied in _________ County for the purpose of allowing a credit against a taxpayer’s county and municipal ad valorem tax liability and for the purpose of funding county and municipal operations in the _________ County area?
Yes
No
S.C. Code Ann. 4-10-30(B). The statute also requires a public notice to taxpayers of the projected tax credit in a newspaper of general circulation two weeks before the referendum. S.C. Code Ann. 4-10-30(D).
DISCUSSION
The court finds that the County 2017-2018 budget was initially passed unlawfully as it did not provide public notice of all amendments. S.C. Code Ann. 4-9-120 (“The council shall take legislative action by ordinance… all ordinances shall be read at three public meetings of council on three separate days with an interval of not less than seven days between the second and third readings.); S.C. Code Ann. 30-4-90(a)(3) (“All public bodies shall keep written minutes of all of their public meetings… [that] include… [t]he substance of all matters proposed, discussed or decided.”). However, the Court also finds that the County’s supplement 2017-2018 budget was valid in its passage. Therefore, the remaining inquiry before the Court is whether the County had legal authority to allocate the Board’s historic share of LOST revenues into its own budget.
The Board, seeking declaratory and injunctive relief, argues that the County cannot take its share of LOST revenues arguing: (1) that those revenues must be divided evenly between the Board and the County in accordance with the will of the voters; (2) that the County’s taking of those funds constitutes a breach of an enforceable contract between the Board and County; and (3) that the Board is entitled to the monies on the basis of the equitable doctrines of quantum merit and equitable estoppels.
1. The Will of the Voters.
A LOST is a tax authorized by the voters, and the Court finds that the County cannot assume the Board’s historic share of LOST revenues without compromising that authorization. See, S.C. Code Ann. 4-10-20. A majority of Dillon County voters approved a local option sales tax in 1995. The record reflects that Dillon County publicized to voters that proceeds from the County Revenue Fund would be split between the County and the Board. Trial testimony also persuades the Court that the split in funds between the County and Board was determinative in the passage of the 1995 LOST Referendum.
Defendant Berry, on behalf of the County, argues that the language of the 1995 LOST Referendum gives the County unencumbered flexibility in using County LOST fund revenues. However, the language used in the referendum was identical to the language “substantially” mandated by the authorizing statute for LOST referenda. S.C. Code Ann. 4-10-30(B). Furthermore, this Court is invited to explore parol evidence of legislative intent given the breadth of susceptible meanings created by the ballots usage of “county and municipal operations in the Dillon County area.” See, Georgia-Carolina Bail Bonds, Inc. v. Cty. of Aiken, 354 S.C. 18, 25, 579 S.E.2d 334, 337-38 (Ct. App. 2003) (“If the language of an act gives rise to doubt or uncertainty as to legislative intent, the construing court may scarch for that intent beyond the borders of the act itself.”); see also, Wade v. Berkeley County, 248 S.C. 224, 229, 559 S.E.2d 586, 588 (2002) (“[W]here a statute is ambiguous, the Court must construe the terms of the statute.”).
“In construing a statute, the court looks to the language as a whole in light of its manifest purpose.” State v. Dawkins, 352 S.C. 162, 573 S.E.2d 783 (2002). The Court views the public advertisement describing a split in tax funds between the Board and County, the County’s September 1, 1995 meeting notes, contemporaneous Dillon Herald articles, and the testimony of firsthand witnesses as indicative that the manifest purpose of the 1995 LOST Referendum was to have County LOST Revenues divided evenly between the Board and County. Therefore, County Council cannot subsume the Board share of LOST revenues without annulling the wishes of its voters.
“A valid agreement as to the disposition of tax funds will be enforced.” 16 McQuillin Mun. Corp. 44:238 (3d ed.). Further a County “violates its ‘contract’ with voters only if it uses tax proceeds as approved by the voters in a way that voters did not approve.” Id. That is,
[w]hen tax is levied for specific purpose, legislative body making levy, after tax shall have been collected, does not thereafter have legislative authority over it for purpose of diverting it so long as purpose for which it was collected exists and administrative officials into whose custody tax is intrusted are without authority to divert it…
Levying of tax for distinctly specified governmental purpose is an appropriation of protected use, and a tax levy so appropriated is beyond power of officials in their discretion to divert it…
West’s ALR Digest 986; citing, City of Newport v. McLane, 256 Ky. 803, 771 S.W.2d 27, 96 A.L.R. 655 (1934)). “The South Carolina Supreme Court has held several times that funds derived from a tax levied for a particular purpose may not be diverted to another use before the original purpose has been accomplished.” Op. S.C. Att’y Gen., 1965 WL 7974 (OP. No. 1811) (March 11, 1965) (citing Edwards v. Osborne, 193 S.C. 158, 173, 7 S.E.2d 526 (1940), citing Southern Railway v. Board of Commissioners, 148 N.C. 220, 61 S.E. 690 (1908)).
LOST proceeds that have been historically paid to the Board cannot now be diverted without contravening the will of the voters. The Court, in Cornelius v. Oconco County, held that where a referendum was passed on the condition that non-tax based financing be used to construct a sewer system, the County could not then deploy its general taxing power to finance an expansion of that sewer system. Cornelius, 369 S.C. 531, 537, 633 S.E. 2d 492, 495 (2006). That is, even though a governmental subdivision ordinarily has the power to spend its tax revenues how it pleases, a governmental entity cannot spend monies in contravention of valid referendum. See, Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13, 15 (1939) (“Perhaps the most frequent ground of application for relief by injunction against municipal corporations is, for the prevention of an illegal or an unauthorized diversion of public funds. The foundation of the relief which is invoked in cases of this nature rests in the doctrine of trusts, and while courts of equity are averse to any interference with the proceedings of municipal officers… they will yet relieve in behalf of citizens and taxpayers against official acts on the part of such bodies, when they move without authority or warrant of law, and in excess of their corporate powers.”).
This ruling, that the County cannot divert the LOST monies at issue, is consistent with similar cases in other jurisdictions. In a similar case, with respect to the issue of a one-half split of revenues between entities, the Alabama Supreme Court affirmed that an agreement between an external auditor to audit tax records to see that all assessments had been appropriately taxed and then to be paid 50% of all revenues received as a result of that audit was enforceable. City of Fairfield v. Haynes, 235 Ala. 194. 195, 178 So. 212, 213 (1938). Likewise, the Supreme Court of Louisiana has held: “once citizens vote for a tax dedicated to one purpose, the tax cannot be used for a purpose other than that approved by the citizens. Any alteration of a prior dedication should also be by vote of the people.” Denham Springs Econ. Dev. Dist. v. All Taxpayers, 894 So. 2d 325, 335 (2005). The County’s argument that information regarding the split of monies between the County and Board was conveyed outside of the referendum at issue (including appearing on an advertisement that displayed the Referendum’s statutorily required notice to tax payers) is undercut by the fact that the statutory language authorizing the referendum required the specific language used. S.C. Code Ann. 4-10-30(B).
The Court finds that the agreement between the two parties that the County’s portion of LOST monies between the Board and County was made expressly known to the voting public who approved the 1995 LOST Referendum. The County, in the absence of a superseding referendum, cannot breach the understanding of its voters with respect to how the LOST funds would be allocated. Therefore, the Court declares as a matter of law that Dillon County’s attempt to allocate LOST funds into its own budget that were historically paid to the Board is unlawful. Furthermore, the Court enjoins the County from future actions inconsistent with this opinion until a superseding or rescinding referendum is approved by the voters.
2. Breach of Contract.
The Court also finds that even if the County could allocate Board LOST monies, without respect to the will of the voters, that such conduct would amount to an unlawful breach of contract with the Board.
A contract is breached when one party to the contract fails ot properly perform the terms of the agreement. The elements of breach of contract are: (1) existence of a contract; (2) breach of the contract; and (3) damages resulting from the breach. Southern Glass & Plastics Co., Inc. v. Kemper, 399 S.C. 483, 491 (Ct. App. 2012); see also, Fuller v. Eastern Fire & Casualty Insurance Co., 240 S.C. 75, 124 S.E.2d. 602, 610 (1962)(burden on plaintiff to prove contract, its breach and damages caused by such a breach). See also, Taylor v. Cummins Atlantic, Inc., 852 F. Supp. 1279, 1286 (D.S.C. 1944) affirmed 48 F.3d 1217 (4th Cir. 1995), cert, denied, 516 U.S. 864, 116 S.Ct. 176, 133 L.Ed.2d 116 (1995)(plaintiff bears burden of proving existence and terms of contract, defendant’s breach of one or more contractual terms, and damages resulting from breach). If a contract is non-ambiguous, it must be construed against the drafter. See, Myrtle Beach Lumber Co. v. Willoughby, 274 S.E.2d 423, 426 (S.C. 1981).
The Court finds, based on the witness testimony and documentary evidence surrounding the September 1, 1995 Dillon County Council meeting, that an unambiguous contract existed between the Board and County to work together in support of the 1995 LOST Referendum and to halve the County revenues thereafter. Defendant Berry, on behalf of the County, does not appear to contest that such an agreement existed. Rather, citing law dealing with the ability of governmental councils to be bound by their predecessor councils, Berry argues that the contract at issue is unenforceable. The Court, finding sufficient business and proprietary advantages to the County and Board’s agreement, is unpersuaded.
Generally, where a county or municipal contract concerns governmental or legislative functions, the contract cannot bind future elected councils; on the other hand, where such a contract concerns business or proprietary functions, future elected councils can be bound. The Board contends that the County had sufficient business and proprietary advantages associated with its agreement with the Board to obtain LOST monies budget at all absent its agreement with the Board and that it reaps business rewards from increased funding for educational facilities because of that agreement. The Court agrees.
Concerning the enforceability of the County and Municipal contracts:
The general rule is that, if the contract involves the exercise of the municipal corporation’s business or proprietary powers, the contract may extend beyond the term of the contracting body and is binding on successor bodies if, at the time the contract was entered into, it was fair and reasonable and necessary or advantageous to the municipality. However, if the contract involves the legislative functions or governmental powers of the municipal corporation, the contract is not binding on successor boards or councils.
Piedmont Pub. Serv. Dist. v. Cowart, 319 S.C. 124, 132, 459 S.E.2d 876, 880 (Ct. App. 1995), aff’d, 324 S.C. 239, 478 S.E.2d 836 (1996). “Unfortunately, the difference between proprietary and governmental functions is often difficult to determine, because, ‘[a]s the scope of ‘governmentality’ expands, the intertwining and overlapping of such functions make it increasingly more difficult to draw any definitive line of separation.’” Piedmont Pub. Serv. Dist. v. Cowart, 319 S.C. 124, 132-33, 459 S.E.2d 876, 881 (Ct. App. 1995), aff’t, 324 S.C. 239, 478 S.E.2d 836 (1996). Here, public policy demands are not impaired by requiring the County to only use its fair share of a revenue stream it would not have had access to in the first place absent its agreement the Board.
Defendant Berry, on behalf of the County, relies on cases concerning long-term public employment and services agreements to support his claim that the instant contract is unenforceable. See, Cunningham v. Anderson Cty., 402 S.C. 434, 438 S.E.2d 545 (Ct. App. 2013), aff’d in part, rev’d in part, 414 S.C. 298, 778 S.E.2d 884 (2015) (long-term employment and severance); Cowart, 478 S.E.2d 836 (1996); Davis v. Greenwood School District 50, 2004 WL 5630573 and Newman v. McCullough, 212 S.C. 17, 46 S.E.2d 252 (1948) (long-term employment agreements); and, City of Beaufort v. Beaufort-Jasper County Water & Sewer Auth., 480 S.E.2d 728, 731 (S.C. 1997) (service agreement). Hiring employees, firing employees, and providing water services are governmental functions which principals of democracy dictate must be within the discretion of elected officials. The Court views this situation differently. Although budget-making is certainly a governing bodies prerogative, the LOST funds at issue are not ordinary revenues. A County does not, by its very existence as a governmental subdivision, receive LOST funding; is explicitly authorized by voters.
The record reflects that the County needed and employed the help of the Board to secure LOST funding, resulting in money (a proprietary asset) the County would not have otherwise had. Such is akin to a business agreement with another entity to secure a new revenue stream. Furthermore, that the County obtains business advantages from improved educational facilities should not be understated. Comptroller of Treasury of Maryland v. Wynne, 135 S. Ct. 1787, 1797, 191 L. Ed. 2d 813 (2015) (“Corporations rely on local schools to educate prospective employees, and the availability of good schools and other government services are features that may aid a corporation in attracting and retaining employees.”); Saine v. State, 210 N.C. App. 594, 595-96, 709 S.E.2d 379, 382 (2011) (“Clearly, the General Assembly sought to increase educational opportunities for North Carolinians in an effort to diversify the skills of the State’s workforce and thereby strengthen the State’s economy.”). The contract at issue remains enforceable, applying the Cowart test to the present case, because: (1) the LOST monies at issue are not ordinary revenues, but were authorized at the discretion of the tax base; (2) the County’s agreement with the Board to acquire the LOST revenue stream was a business-agreement in form and substance; and (3) the County receives business benefits associated with improved schools.
The Board would establish the elements of an enforceable breach of contract claim should the County be enabled to allocate the Board’s share of LOST proceeds. Therefore, the Court declares that such actions by the County are unlawful, and issues a prohibitory injunction enjoining conduct inconsistent with this order unless a superseding referendum is passed.
3. Equitable Remedies.
The Board last argues that, even if it were not entitled to judgment on the above legal grounds, it is entitled to equitable relief under theories of promissory estoppel and quantum merit.
Promissory estoppel arises where the refusal to enforce a promise “would be virtually to sanction fraud or would result in other injustice.” Higgins Construction Co. Inc. v. Southern Bell Telephone & Telegraph Co., 276 S.C. 663, 281, S.E.2d 469, 470 (1981). Promissory estoppel requires: (1) a promise unambiguous in its terms, (2) reasonable reliance on the promise by the plaintiff, (3) the reliance is expected and foreseeable by the party who made the promise, and (4) injury in reliance on the promise. Powers Construction Co., Inc. v. Salem Carpets, Inc., 283 S.C. 302, 322 S.E.2d 698 (Ct. App. 1984). The Court of Appeals has held that a county cannot escape liability for authorized representations of its officials on the basis of a technicality. See, Oswald v. Aiken Cty., 281 S.C. 298, 303, 315 S.E.2d 146, 150 (Ct. App. 1984)(“The County cannot escape liability to Oswald under a policy it had the general power to implement because the administrator was not technically authorized to approve payment for compensatory time.”).
Here, Dillon County made an unambiguous promise to the Board, through authorized representatives (its Council and Administrator), that if the Board assisted in the passage of the LOST referendum, the Board would share evenly in the proceeds from the LOST. That promise is enforceable. See, swift & Co. v. Callaham, 133 S.C. 353, 368, 131 s.E. 146, 152 (S.C. 1926) ([A] principal is bound by the acts of his agent, acting within the scope of his actual or apparent authority”) citing, Thompson v. Shaw Motor Co., 128 S.C. 171; 122 S.E. 669 (1924). The Board submitted evidence that it reasonably relied on the County’s promise, and legally that reliance was foreseeable. Young v. Tide Craft, Inc., 270 S.C. 453, 462, 242 S.E.2d 671, 675 (1978). (“The standard by which foreseeability is determined is that of looking to the “natural and probable consequences” of the complained of act.”). The Board also presented evidence (its mortgage repayment obligations to the USDA) that it will suffer a detriment if County seizes the Board’s share of LOST monies. Thus, the Board established each element of a valid promissory estoppel claim.
“The elements to recover for unjust enrichment based on quantum meruit, quasi-contract, or implied by law contract, which are equivalent terms for equitable relief, are: ‘(1) a benefit conferred by the plaintiff upon the defendant; (2) realization of that benefit by the defendant; and (3) retention of the benefit by the defendant under circumstances that make it inequitable for him to retain it without paying its value.”’ Wingard Properties, Inc., 715 S.E.2d at 356; quoting Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 341 S.C. 1, 8-9, 532 S.E.2d 868, 872 (2000). The Board put forth evidence that it conferred a benefit on the County by politicking in favor of the LOST. It is undisputed that the County has received the benefit of that bargain with respect to its historic share of LOST proceeds. The County’s retention of the full share of those proceeds without due consideration of the Board would give rise to an actionable claim of Quantum merit.
Therefore, the Board is entitled to a one-half share of LOST proceeds under the equitable theories of promissory estoppel and quantum merit. Furthermore, Defendant Berry, on behalf of the County, is enjoined from future conduct inconsistent with this opinion unless a superseding referendum is passed.
CONCLUSION
The Court finds that the Dillon County’s attempt to budget LOST funds historically allocated to the Dillon County Board of Education was unlawful. The Court declares that the County share of Local Option Sales Tax revenue funds should be distributed in halves between the Board and County. This declaration is made in accordance with the agreement reached in 1995 between the County and the Board that was affirmed by the voters in the 1995 General Election. The Court enjoins the Dillon County from conduct inconsistent with this opinion.
IT IS SO ORDERED.
9-26, 2017
Florence, South Carolina
FOOTNOTES
1Defendants Northeastern Technical College and Berry have settled their disputes regarding a reduction in millage to the College in the 2017-2018 budget.
2The Court need not address whether the original 2017-2018 included an appropriate public comment as the Court finds the budget was improperly altered between its Second and Third Readings. See, Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (where a dispositive question is raised and decided, ancillary issues need not be decided.)
3Defendant Berry has cited to Cornelius as an example that the 1995 Referendum could have been more descript in its intended purpose; this argument is unpersuasive as Cornelius did not concern a Local Option Sales Tax Referendum passed pursuant to S.C. Code Ann. 4-10-10 et seq.
