The Gulfstream Café v. J. Mark Lawhon

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The Gulfstream Cafe, Inc., Respondent,

v.

J. Mark Lawhon, Individually, and Palmetto Industrial
Development, LLC, Appellants.

Appellate Case No. 2019-001446

Appeal from Georgetown County
Steven H. John, Circuit Court Judge

Opinion No. 5936
Heard March 16, 2022 – Filed August 10, 2022

AFFIRMED

Henrietta U. Golding, of Burr & Forman LLP, of Myrtle
Beach, for Appellants.

George W. Redman, III, of Bellamy, Rutenberg,
Copeland, Epps, Gravely & Bowers, P.A., of Myrtle
Beach; Sean Matthew Foerster, of Rogers Townsend
LLC, of Columbia; and Simon H. Bloom and Adam D.
Nugent, both of Atlanta, Georgia, all for Respondent.

LOCKEMY, A.J.: Palmetto Industrial Development, LLC (Palmetto) and J.
Mark Lawhon (Mark; collectively, Appellants) appeal the circuit court's order
finding them in criminal contempt for parking a golf cart in front of The
Gulfstream Café, Inc.'s (Gulfstream's) delivery gate, which violated a permanent
injunction and impacted Gulfstream's use of a joint, non-exclusive easement. On
appeal, Appellants argue the circuit court erred because (1) parking the golf cart in
a parking spot did not violate the injunction; (2) Appellants presented evidence that
undermined Gulfstream's claimed use of the delivery gate and the circuit court's
finding of a willful violation; (3) the circuit court should not have denied
Appellants' Rule 59(e), SCRCP, motion based on Rule 59(g), SCRCP; and (4) the
circuit court's order was insufficient. We affirm.

FACTS/PROCEDURAL HISTORY
This appeal is another episode in a series of disputes between Appellants and
Gulfstream involving a joint, non-exclusive easement.1 By way of background,
Gulfstream is a restaurant located in Murrells Inlet and is part of the Marlin Quay
Marina Development. Prior to November 2016, a store, a restaurant called the
Marlin Quay Marina Bar & Grill, and a marina were located on the lot adjacent to
Gulfstream. The restaurant was demolished in November 2016. Palmetto owns
the marina, store, parking lot, and property where the restaurant was, and Mark
owns Palmetto. Chris Lawhon (Chris), Mark's son, was the manager of the
marina's restaurant.
Gulfstream possesses four joint, non-exclusive easements that were issued in 1986
and 1990 by Palmetto's predecessor—Marlin Quay Marina Corporation. The 1990
easement intended to clarify Gulfstream's rights. Specifically, Gulfstream retained:

A non-exclusive perpetual easement appurtenant to the
premises of [Gulfstream] hereinafter described for the
full and free right of ingress and egress on, over and
across the following described property of [Marlin Quay
Marina Corporation], together with the rights of
vehicular parking on and vehicular and pedestrian access
to, all in accordance with all governmental rules,
regulations, ordinances or laws, the premises of the
[Marlin Quay Marina Corporation] hereinafter described,
and also for the purpose of maintenance, repair, alteration
and/or improvements to [Gulfstream's] hereinafter
described property. It is anticipated by the parties that
while they will each have joint and non-exclusive use at
all times of the area covered by this easement that the
[Marlin Quay Marina Corporation] will utilize the
premises primarily during the daytime regular business

1
See also App. Case No. 2019-000885.
hours of [Marlin Quay Marina Corporation] and
[Gulfstream] will utilize the premises primarily in the
evening regular business hours of [Gulfstream.]
In 2016, the saga of disputes between Appellants and Gulfstream unfolded over
Appellants' plans to demolish their own building and rebuild a larger building that
would have been on stilts and evidently extended over the parking lot. On
November 16, 2016, Gulfstream filed suit against Appellants, alleging (1)
intentional interference with its easement rights; (2) trespass and nuisance; and (3)
forcible entry, detainer, and waste. Gulfstream obtained a temporary restraining
order and temporary injunction, prohibiting Appellants from "interfering with
[Gulfstream's] perpetual easement rights to use the [p]arking [l]ot." During the
hearing on the temporary injunction, the parties were warned about contempt
because the court believed that one of the parties was "intentionally misleading"
about what was happening.
The relationship between Gulfstream and Appellants continued to sour, and
Gulfstream moved for contempt. In May 2017, Mark was held in criminal
contempt for interfering with Gulfstream's easement rights during a fishing
tournament and for calling law enforcement to remove Gulfstream's window
washers on two occasions. The circuit court ordered Mark to pay a $3,000 fine or
serve thirty days in jail for the incidents with the window washers.

In June 2018, Gulfstream and Appellants proceeded to trial before the circuit court
and a jury. The jury found for Gulfstream based on Appellants' "interference with
[Gulfstream's] easement" and awarded Gulfstream $1,000. On June 12, 2018, the
same day as the jury verdict, the circuit court entered a permanent injunction:
"[Appellants] are enjoined from preventing [Gulfstream] from enjoying the right[s]
granted to it in the recorded nonexclusive joint easement. [Appellants] are
restrained and may not expand the outside boundaries of any new building beyond
those previously used. The [c]ourt is specifically not talking about height, only the
outside boundaries." On June 22, 2018, Gulfstream filed a Rule 59(e) motion to
clarify the injunction, and Appellants responded.
One month later, in July 2018, Gulfstream moved to hold Appellants in criminal
contempt because Chris parked a golf cart in front of Gulfstream's delivery gate on
"at least four (4) separate occasions." 2 Included in the contempt motion were

2
Gulfstream later raised other matters about lights in the parking lot, a delivery
truck, and boat trailers; however, the circuit court did not find Appellants in
contempt on these matters, and we do not discuss them on appeal.
photos of a U.S. Foods truck that was unable to access Gulfstream's delivery gate.
Gulfstream also provided an affidavit from Jef Kirk, a manager for Gulfstream,
and included pictures, text messages, and a statement from a delivery driver to
support Kirk's affidavit. Specifically, Kirk alleged Appellants were "intentionally
and repeatedly interfering with" Gulfstream's easement rights:
(1) on July 11, 2018, Chris parked the golf cart in front of
the delivery gate and did not move the cart until the
evening of July 12, 2018;
(2) on July 13, 2018, the golf cart was back again and
blocked a U.S. Foods' delivery truck; Kirk texted
Chris, asking him to move the cart; and the delivery
driver did the same;
(3) on July 15, 2018, the golf cart was parked in the early
morning to block the delivery gate;
(4) on July 17, 2018, Kirk reviewed security camera
footage and saw that Chris parked the golf cart in
front of the delivery gate and walked in the opposite
direction of Appellants' business; Kirk texted Chris,
asking him to move the cart; and
(5) on July 19, 2018, the golf cart was again blocking the
gate.
According to Kirk, "[e]ach time the . . . golf cart was parked in front of
Gulfstream's delivery gate, there were numerous other parking spaces available."
Kirk emphasized that when the vendors did not use the delivery gate, the process
was "extremely inefficient and cause[d] excess wear and tear to the floors." Kirk
stated he added a sign to the delivery gate on July 18, 2018, asking patrons not to
block the gate from 10:00 a.m. to 4:00 p.m.
On July 27, 2018, the circuit court amended its permanent injunction:

[Appellants] are enjoined from preventing [Gulfstream]
from enjoying the right[s] granted to it in the recorded
nonexclusive joint easement. [Appellants] are restrained
and may not expand the outside boundaries of any new
building beyond those previously used. The outside
boundaries specifically are the outside boundaries of the
old building, which was depicted on the 1985 Plat
recorded at Plat Book 6, Page 214 of the Georgetown
County real property records and was demolished by
[Appellants] in November 2016. The outside boundaries
do not include any outbuildings, fixtures, concrete pads,
dumpsters, or other accessories. As a result, any new
building must be located on the same footprint as the old
building. The [c]ourt is specifically not talking about
height, only the outside boundaries.

On August 6, 2018, Appellants moved to alter or amend the circuit court's July 27,
2018 order, arguing (1) the new order created confusion and uncertainty, (2) an
injunction should not have been granted because the jury awarded monetary relief,
(3) the amended permanent injunction enlarged the easement, and (4) other issues
related to the building's construction.

On August 20, 2018, Appellants filed an opposition to the contempt motion,
arguing Appellants did not violate the court's order when Chris parked the golf cart
in a parking spot in front of the delivery gate. Additionally, Appellants
emphasized Gulfstream's employees and others parked in the same spot and
Gulfstream's vendors did not always use the delivery gate even when the gate was
available. In support of their position, Appellants attached an affidavit from Chris
and photographs. Chris stated (1) Gulfstream's employees park in front of the
delivery gate; (2) he did not receive any communications from Kirk or the vendors
until after July 19, 2018; (3) he did not see Gulfstream's sign about not parking in
the spot; (4) he parked away from the marina in the mornings to allow customers
and captains to park closer to the restaurant and store; and (5) he had not parked in
the spot since Gulfstream filed the contempt motion. Mark also filed an affidavit,
stating Gulfstream allowed vendors to use other access points beyond the delivery
gate and asserted Gulfstream's employees parked in front of the delivery gate as
well.
Gulfstream filed a reply in support of contempt and attached a second affidavit
from Kirk. Kirk noted (1) he previously contacted employees of the marina to ask
Chris to move the golf cart; (2) on July 27, 2018, Mark parked his SUV to block
the delivery gate; (3) Kirk and Gulfstream's staff had started parking in front of the
delivery gate to ensure their cars could be moved for when deliveries arrived; and
(4) some deliveries came through the front door, but the food deliveries generally
came through the delivery gate because there were generally more than 100 boxes
of food. Appellants also filed a second affidavit from Chris.
On November 14, 2018, the circuit court heard Appellants' motion to amend the
July 27, 2018 order, which it denied, 3 and Gulfstream's contempt motion.
According to Appellants' counsel, Chris left the golf cart overnight on one occasion
because it was raining; the time Chris walked away from the marina on the video
footage was to pick up something he dropped; and after the 2018 trial, Chris
blocked Kirk's phone number. The same day, the circuit court issued a Form 4
order, finding Appellants "engaged in criminal contempt of court by deliberate and
intentional acts by placement of a golf cart which interfered with the proper use of
the non-exclusive easement in this matter and was in direct violation of the
[c]ourt's previous order." Thus, the circuit court fined Appellants $5,000.

On November 21, 2018, Appellants filed a Rule 59(e) motion as to the contempt
order. Appellants failed to provide a copy of the Rule 59(e) motion to the circuit
court judge within ten days of filing the motion. On December 13, 2018,
Appellants appealed the circuit court's orders involving the permanent injunction.
See App. Case No. 2018-002213. On February 1, 2019, our court dismissed based
on Appellants' desire to withdraw their appeal. See App Case No. 2018-002213.
Thereafter, on June 10, 2019, the circuit court instructed the parties to provide it
with briefs on whether to consider Appellants' motion to reconsider its contempt
order. The parties provided briefs to the circuit court.

The circuit court denied Appellants' Rule 59(e) motion because (1) the circuit court
was not given the motion pursuant to Rule 59(g) and (2) on the merits, the circuit
court found it properly ruled. This appeal followed.
ISSUES ON APPEAL

1. Did the injunction prohibit Appellants from parking a golf cart in a designated
parking spot when the easement was joint and non-exclusive?

2. Did the evidence presented demonstrate beyond a reasonable doubt that
Appellants violated the prior order?

3. Did the circuit court wrongly deny the motion to reconsider as untimely?
4. Did the circuit court's order provide a sufficient explanation for its decision?

STANDARD OF REVIEW

3
The July 27, 2018 order is not on appeal before this court.
"A determination of contempt ordinarily resides in the sound discretion of the
[circuit] court." Rhoad v. State, 372 S.C. 100, 104, 641 S.E.2d 35, 37 (Ct. App.
2007). "On appeal, a decision regarding contempt should be reversed only if it is
without evidentiary support or the [circuit court] has abused [its] discretion." Stone
v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840, 840 (1988). "An abuse of
discretion occurs when the ruling is based on an error of law or a factual
conclusion without evidentiary support." Historic Charleston Holdings, LLC v.
Mallon, 381 S.C. 417, 434, 673 S.E.2d 448, 457 (2009).
LAW/ANALYSIS

Appellants argue the circuit court erred by finding them in criminal contempt.
First, Appellants aver the injunction was not specific as to prohibiting them from
using any space in their joint, non-exclusive easement, Chris's conduct was
permissible, and Chris's "motivation for parking the golf cart near the delivery gate
[wa]s irrelevant." Second, Appellants contend they presented evidence that
undermined the need to use the delivery gate because vendors used other access
points. Appellants further argue that when Chris parked the cart and walked away
on one occasion, he was picking something up, and this did not constitute a willful
violation. Third, Appellants assert that when the circuit court instructed the parties
to brief their issues, the court's actions were "tantamount to forgiving any" Rule
59(g) violation. Finally, Appellants argue the circuit court's order was insufficient.
We disagree.
"Contempt results from the willful disobedience of an order of the court." Miller v.
Miller, 375 S.C. 443, 454, 652 S.E.2d 754, 759 (Ct. App. 2007) (quoting Bigham v.
Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); see also S.C. Code Ann.
§ 14-5-320 (2017) ("The circuit court may punish by fine or imprisonment, at the
discretion of the court, all contempts of authority in any cause or hearing before the
same."). "A willful act is one which is 'done voluntarily and intentionally with the
specific intent to do something the law forbids, or with the specific intent to fail to
do something the law requires to be done; that is to say, with bad purpose either to
disobey or disregard the law.'" Miller, 375 S.C. at 454, 652 S.E.2d at 759-60
(quoting Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 705 (Ct. App.
2001)).

"In a proceeding for contempt for violation of a court order, the moving party must
show the existence of a court order and the facts establishing the respondent's
noncompliance with the order." Id. at 454, 652 S.E.2d at 760 (quoting Hawkins v.
Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct. App. 2004). "[B]efore a
court may find a person in contempt, the record must clearly and specifically
reflect the contemptuous conduct." Id. (alteration in original) (quoting Widman,
348 S.C. at 119, 557 S.E.2d at 705). "Once the moving party has made out a prima
facie case, the burden then shifts to the respondent to establish his or her defense
and inability to comply with the order." Id. (quoting Widman, 348 S.C. at 120, 557
S.E.2d at 705).
"It is within the [circuit] court's discretion to punish by fine or imprisonment all
contempts of authority before the court." Id. (quoting Brandt v. Gooding, 368 S.C.
618, 628, 630 S.E.2d 259, 264 (2006)). "In addition, courts have the inherent
power to punish for offenses that are calculated to obstruct, degrade, and
undermine the administration of justice." Id. at 455, 652 S.E.2d at 760 (quoting
Brandt, 368 S.C. at 628, 630 S.E.2d at 264). "The primary purposes of criminal
contempt are to preserve the court's authority and to punish for disobedience of its
orders." Id. at 456, 652 S.E.2d at 761 (quoting Floyd v. Floyd, 365 S.C. 56, 75,
615 S.E.2d 465, 475 (Ct. App. 2005). "In a criminal contempt proceeding, the
burden of proof is beyond a reasonable doubt." Id. at 457, 652 S.E.2d at 761.
"Intent for purposes of criminal contempt is subjective, not objective, and must
necessarily be ascertained from all the acts, words, and circumstances surrounding
the occurrence." Id.

The circuit court did not abuse its discretion in finding Appellants in criminal
contempt. See Stone, 295 S.C. at 516, 369 S.E.2d at 840 ("On appeal, a decision
regarding contempt should be reversed only if it is without evidentiary support or
the [circuit court] has abused [its] discretion."); Miller, 375 S.C. at 457, 652 S.E.2d
at 761 ("Intent for purposes of criminal contempt is subjective, not objective, and
must necessarily be ascertained from all the acts, words, and circumstances
surrounding the occurrence."); id. ("In a criminal contempt proceeding, the burden
of proof is beyond a reasonable doubt.").
Here, the circuit court issued a permanent injunction after the 2018 trial—later
clarified to reference a plat—prohibiting Appellants from interfering with
Gulfstream's joint, non-exclusive easement rights. The 1990 easement expressly
provided that Gulfstream had an easement "for the full and free right of ingress and
egress on, over and across" the property. We acknowledge the easement was joint
and non-exclusive, but based on Kirk's affidavits and supporting exhibits, we find
Chris's conduct was calculated to undermine the circuit court's injunction that
permitted Gulfstream to use its easement. See Miller, 652 S.E.2d at 455, 652
S.E.2d at 760 ("[C]ourts have the inherent power to punish for offenses that are
calculated to obstruct, degrade, and undermine the administration of justice."
(quoting Brandt, 368 S.C. at 628, 630 S.E.2d at 264)); id. at 456, 652 S.E.2d at 761
("The primary purposes of criminal contempt are to preserve the court's authority
and to punish for disobedience of its orders." (quoting Floyd, 365 S.C. at 75, 502
S.E.2d at 475)). Additionally, it would be illogical to accept Appellants' implicit
argument that they could park and block the delivery gate as much as they wanted
to because Gulfstream only had a joint, non-exclusive easement.

Further, we acknowledge Appellants and Chris contend they were not intentionally
violating the circuit court's order and Chris was simply using a parking spot.
However, this was a factual determination the circuit court had to confront. Thus,
even if we disagreed with the circuit court's ruling, we would still be bound by our
standard of review, and there is sufficient evidence in the record to support the
circuit court's finding. See Stone, 295 S.C. at 516, 369 S.E.2d at 840 ("On appeal,
a decision regarding contempt should be reversed only if it is without evidentiary
support or the [circuit court] has abused [its] discretion."); Rhoad, 372 S.C. at 104,
641 S.E.2d at 37 ("A determination of contempt ordinarily resides in the sound
discretion of the [circuit] court.").4 We also understand how the circuit court likely
discounted Appellants' contention that vendors did not always use the delivery
gate; it is reasonable that the type of delivery would govern whether the vendors
used the stairs or the delivery gate that is functionally a shipping dock.

Moreover, we disagree with Appellants' assertion that the circuit court's order was
insufficient because we do not know why the circuit court discredited their versions
of events. The circuit court plainly stated in its first contempt order—which was
later turned into a formal order—that Appellants "engaged in criminal contempt of
court by deliberate and intentional acts by placement of a golf cart which interfered
with the proper use of the non-exclusive easement in this matter and was in direct
violation of the [c]ourt's previous order." After reviewing all of the materials, we
come to the same conclusion that the circuit did and would also find Appellants in
contempt. Accordingly, we affirm the circuit court's order.5

Because we find the circuit court properly ruled on the merits, we need not address
Appellants' arguments regarding Rule 59(g) and law of the case. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598

4
Appellants suggest we should not defer to the circuit court's implicit credibility
findings because at the contempt hearing, only the attorneys argued and affidavits
were submitted. However, we give little weight to this argument. After all, the
circuit court judge who ruled on the contempt action was the same judge who sat
through the 2018 trial; thus, the circuit court was very familiar with these parties.
5
At oral arguments, the parties informed our court that they were again going to
trial the Monday after oral arguments.
(1999) (declining to address remaining issues when disposition of a prior issue is
dispositive).

CONCLUSION

Based on the foregoing, we affirm the circuit court's finding of contempt.

AFFIRMED.

GEATHERS and HILL, JJ., concur.