ELECTRONICALLY FILED - 2018 Nov 18 7:19 PM - BAMBERG - COMMON PLEAS - CASE#2018CP0500244

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) SECOND JUDICIAL CIRCUIT
COUNTY OF BAMBERG ) CASE NUMBER 2018—CP—05____________

DEANNA MILLER BERRY and )

PATRICK BERRY individually and on )
behalf of those similarly situated,)
)
Plaintiffs ) SUMMONS
)
vs. ) (Class Action)
)
CITY OF DENMARK and CITY OF )
DENMARK PUBLIC WATER SYSTEM )
)
Defendant )
)

TO DEFENDANTS ABOVE NAMED:

YOU ARE HEREBY SUMMONED and required to answer the Complaint herein, a copy of
which is herewith served upon you, and to serve a copy of your Answer to the Complaint upon the
subscriber, at his office at 2000 Sam Rittenberg Blvd., Suite 2001, Charleston, SC 28407 within thirty
(30) days after service hereof, exclusive of the day of such service. If you fail to answer the Complaint
within the time aforesaid, Plaintiff will apply to the Court for relief demanded in the Complaint and a
judgement by default will be rendered against you.
Respectfully Submitted,

HARRELL LAW FIRM, P.A.

s/ John D. Harrell, Sr.

By: _________________________________________
John D. Harrell, Sr., Esquire
2000 Sam Rittenberg Blvd., Suite 2001
Charleston, South Carolina 29407
Phone: (843) 766-4700
Fax: (843) 766- 4784
john@hlfpa.com
Attorneys for Plaintiffs individually
And for the Class Plaintiffs

Charleston, South Carolina

November 18, 2018
 ELECTRONICALLY FILED - 2018 Nov 18 7:19 PM - BAMBERG - COMMON PLEAS - CASE#2018CP0500244
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) SECOND JUDICIAL CIRCUIT
COUNTY OF BAMBERG ) CASE NUMBER 2018—CP—05 ___________

DEANNA MILLER BERRY and )

PATRICK BERRY individually and on )
behalf of those similarly situated,)
)
Plaintiffs ) COMPLAINT
)
vs. ) (Class Action)
)
CITY OF DENMARK and CITY OF )
DENMARK PUBLIC WATER SYSTEM )
)
Defendant )
)

TO DEFENDANTS ABOVE NAMED:

COMES NOW the above named plaintiffs individually and on behalf of all others similarly

situated, The above-named Plaintiff, individually and on behalf of those similarly situated,

complaining of the above-named Defendant alleges and states as follows:

THE PARTIES

1. Deanna Miller Berry is a resident of Denmark, South Carolina and was so at all times material

herein.

2. Patrick Berry is a resident of Denmark, South Carolina and was so at all times material herein.

3. Defendants City of Denmark and City of Denmark Public Water System (herein collectively

referred to as Defendant) is a municipal water and sewer authority established pursuant to

ordinance of the City of Denmark, South Carolina and state law. City of Denmark provides

water and wastewater services to businesses and residents in City of Denmark. City of

Denmark is a local governing body and/or a governmental entity under South Carolina law.

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JURISDICTION AND VENUE

4. Plaintiff and members of the plaintiff class have standing to bring their claims pursuant to

South Carolina law.

5. Plaintiffs, and others similarly situated, have been City of Denmark / City of Denmark Public

Water System customers since on or before 2008, and are Defendant’s residential customers

as of this filing.

6. Jurisdiction and venue are proper in this Honorable Court pursuant to applicable South

Carolina law and procedure.

NATURE OF THE ACTION

7. This case involves Plaintiff's refund claim for highly excessive rate hikes charged by City of

Denmark and City of Denmark Public Water System to its residential customers in City of

Denmark service area.

FACTUAL ALLEGATIONS

8. Pursuant to contract and South Carolina law, City of Denmark and/or City of Denmark Public

Water System charges (Collectively “Defendant”) its residential customers, including

Plaintiffs, monthly excessive rates to traditional water and sewer fees based on metered

(volumetric) usage. According to the Defendant, the excessive rate hikes are designed to

recover debt service, capital costs, operating and maintenance costs, and general administrative

costs.

9. That the water in Denmark is, on information and belief, poisoned with, inter alia, lead, copper

and HaloSan, among other toxic substances, which results in Plaintiff and similarly situated

City of Denmark residential customers actually using far less water and wastewater, if any at

all, on an ongoing monthly basis than their billed usage, resulting customers paying (and City

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of Denmark unlawfully collecting) excessive amounts for poisonous water that is often never

even used.

10. Despite this discrepancy and at all times knowing or having the means to know of Plaintiffs’

actual monthly usage, Defendant relentlessly charged and continues to charge excessive rates

to Plaintiffs and the plaintiffs’ class.

11. Denmark has never adjusted Plaintiffs' or other customers' bills, and in fact demands most of

them pay only in cash, many of said water bills actually amounting to more than the Plaintiffs’

rent payment or mortgage payment each month for the poisonous and often unused water.

12. Plaintiff and the plaintiffs’ class have; been financially damaged by Defendant's collection of

excessive rates for municipal water and sewage.

13. Access to water and sewer services is a fundamental necessity to human health, sanitation, and

welfare as recognized by South Carolina law.

14. Plaintiff and the plaintiffs’ class had no choice but to pay excessive rates for years or risk

service interruption or disconnection.

15. Defendant provides no formal administrative process for resolving the excessive rate

collections at issue in this case.

16. Defendant is a highly regulated governmental utility, which enjoys a monopoly in its service

area.

CLASS ACTION ALLEGATIONS

17. Pursuant to Rule 23, SCRCP, Plaintiffs bring this action on behalf of themselves and the

plaintiff class, initially defined as:

All current and former City of Denmark and City of Denmark Public Water System residential
customers who paid excessive water and sewage rates but whose metered water and
wastewater usage in any month was zero or much less than that customer's actual available
usage under the circumstances especially in light of the presence of any toxicity in the the
water.

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 Excluded from the plaintiffs’ class are:

a. Defendant, its legal representatives, elected officials, officers, directors, assigns,

and successors;

b. The judge, magistrate, and any special master to whom this case is assigned, and
any member of their immediate families; and

c. To the extent the class certification order permits exclusion, all account holders that
timely submit proper requests for exclusion from the plaintiff class by opting out.

18. Upon information and belief, the plaintiff class consists of several hundred or thousands of

Defendant’s residential account holders, making individual joinder impracticable, in

satisfaction of Rule 23(a)(1), SCRCP. The disposition of the claims of the class members in a

single class action will provide substantial benefits to all parties and to the Court.

19. There are questions of law and fact common to Plaintiff and the class, thereby satisfying Rule

23(a)(2), SCRCP. These questions include, but are not limited to, the following:

a. Whether, under the facts and circumstances of this case, state law prohibits the
Defendant’s from imposing and collecting excessive rates for water and sewage.

b. Whether Plaintiffs and the class members have suffered financial damages and
Defendant’s owe refunds associated with its imposing and collecting excessive
rates for water and sewage.

c. Whether Defendant can continue charging excessive rates for water and sewage, as
it has traditionally done.

d. Whether and if so for how much are the Plaintiffs and the class are due a refund for
the gross overcharges under the circumstances particularly.

e. Whether and if the Defendant can charge any amount at alkl for water that has been
objectively tested for poisons, insecticide, and carcinogens.

20. Resolution of these common questions in a single action will eliminate the risk of inconsistent

and varying adjudications, and it will allow class members to present their claims efficiently

and share the costs of litigation, experts, and discovery.

21. Plaintiffs’ claims are typical of the claims of the members of the class, thereby satisfying Rule

23(a)(3), SCRCP. Plaintiffs’ claims arise from the same nucleus of operative facts and are

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intended to correct and prevent the same improper conduct that has impinged identically upon

Plaintiff and members of the class.

22. Plaintiffs will fairly and adequately 'represent and protect the interests of the class as required

by Rule 23(a)(4), SCRCP. Plaintiffs are residents and businesses located within City Of

Denmark and City of Denmark’s Public Water System’s service area that for years unwittingly

paid excessive rates for water and sewage. Plaintiffs and their counsel are committed to

vigorously prosecuting this action on behalf of the plaintiff class, and they have the financial

resources and intellectual wherewithal to do so. Neither Plaintiffs nor their counsel have any

interests adverse to those of the plaintiff class.

23. Plaintiff and the class members have each suffered damages that exceed $100.00 per person as

required by Rule 23(a)(5), SCRCP.

FOR A FIRST CAUSE OF ACTION

(Declaratory Judgment)

24. Plaintiff and the plaintiff class repeat and reallege all of the allegations contained in the

previous paragraphs as if they were repeated verbatim herein.

25. For the purpose of determining a question of actual controversy between the parties,

Plaintiff and the plaintiff class seek a declaration of their rights pursuant to SC Code Ann, §15-

53-30 of the South Carolina Code.

26. Pursuant to §15-53-30, a party whose rights, status, or other legal relations are affected by

contract, state statute, municipal ordinance, or other instrument may have those rights

determined by a declaratory judgment.

27. Plaintiff and the plaintiff class are Defendant’s residential customers that for years unwittingly

paid highly excessive rates for water and sewage that is toxic and non-potable.

28. Plaintiff and the plaintiff class are entitled to refunds, with interest, for the excessive rates for

water and sewage unlawfully collected by Defendant.

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29. Plaintiff and the plaintiff class thus seek a declaration of rights under South Carolina law,

specifically the following declarations:

a. Under the facts and circumstances of this case, state law prohibits the Defendant
from imposing and collecting excessive rates for water and sewage, no provision
is written to allow charges for toxic water.

b. Plaintiff and the class members have suffered financial damages and Defendant
owes refunds associated with its imposing and collecting excessive rates for water
and sewage.

c. The Defendant cannot continue charging excessive rates for water and sewage, as
it has traditionally done.

30. Excessive rates for water and sewage paid by Plaintiffs and the plaintiff class, as outlined

above, violate South Carolina constitutional, statutory, municipal, and case law as follows:

a. They are not paid in return for a particular government service or program made
available to the payer that benefits the payer in some manner different from the
members of the general public not paying the fee;

b. They are neither just nor reasonable;

c. They violate the used and useful doctrine;

d. They constitute an unconstitutional and unlawful tax; and

e. They constitute an unconstitutional and unlawful fee to include, but not be

limited to, user fee and impact fee.

31. Plaintiffs and the class hereby request a declaratory judgment from this Court regarding the

aforementioned matters.

FOR A SECOND CAUSE OF ACTION

(Breach Of Contract)

32. Plaintiffs and the plaintiff class repeat and reallege all of the allegations contained in the

previous paragraphs as if they were repeated verbatim herein.

33. Plaintiffs and each member of the plaintiff class pays for and receives municipal water and

wastewater services from City of Denmark and/or City of Denmark Public Water System

(Defendant) pursuant to contract.

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34. Defendant breached its contracts with Plaintiffs and the plaintiff class by, among other things,

charging excessive rates for water and sewage and maintaining and expending these funds, and

federal grants for the purpose of water, for improper purposes and the perpetuation of toxic

water in violation of South Carolina law.

35. Defendant further breached its implied contractual obligations to Plaintiff and the plaintiff

class by charging excessive rates for water and sewage and maintaining and expending these

funds in violation of South Carolina law.

36. Defendant further breached its covenant of good faith and fair dealing with Plaintiff and the

plaintiff class by charging excessive rates for water and sewage and maintaining and expending

these funds in violation of South Carolina law, and by continually imposing toxic water as

aforementioned upon the Plaintiffs and plaintiff class.

37. To the extent Defendant's contracts with Plaintiff and the plaintiff class called for the payment

of excessive rates for water and sewage, these contractual provisions should be struck as

unconstitutional, violative of South Carolina law, unconscionable, and contrary to public

policy. Plaintiff and the plaintiff class have been damaged because of the these breaches.

38. Plaintiff and the plaintiff class seek a judgment against Defendant for actual, special,

consequential, and other available damages plus pre-judgment and post-judgment interest

associated with the excessive rates for water and sewage unlawfully collected by the

Defendant.

FOR A THIRD CAUSE OF ACTION

(Conversion)

39. Plaintiffs and the plaintiff class repeat and reallege all of the allegations contained in the

previous paragraphs as if they were repeated verbatim herein.

40. Plaintiffs and the plaintiff class have a constitutionally protected property interest in their

money.
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41. Defendant wrongfully appropriated money belonging to the Plaintiff and the plaintiff class in

the form of excessive rates for water and sewage, particularly in charging for both the use and

non use of water that is toxic as aforementioned, all in violation of South Carolina law.

42. Each excessive rates for water and sewage collection constitutes a separate “occurrence” under

the South Carolina Tort Claims Act.

43. Plaintiffs and the plaintiff class seek a judgment against Defendant for actual, special,

consequential, and other available damages pips pre judgment and post-judgment interest

associated with the excessive rates for water and sewage unlawfully collected by Defendant.

FOR A FOURTH CAUSE OF ACTION

(Unjust Enrichment / Money Had And Received)

44. Plaintiffs and the plaintiff class repeat and reallege all of the allegations contained in the

previous paragraphs as if they were repeated verbatim herein.

45. Plaintiffs and the plaintiff class conferred a non-gratuitous benefit on Defendant `in the form

of excessive water and sewage rates.

46. Defendant realized value from said benefit.

47. It would be inequitable for Defendant, to retain the benefit without paying Plaintiff and the

plaintiff class for it.

48. “Equity follows the law.” Defendant charged excessive rates for water and sewage and

expended these funds in violation of South Carolina law. Therefore, regardless of the

circumstances surrounding these collections or what Defendant did with these funds, it is

inequitable for Defendant to retain and continue to charge excessive water and sewage rates..

Simply put, governmental: entities, including municipal utilities, should not be allowed under

any circumstances to impose, collect, and spend wrongful, excessive, and unreasonable fees.

49. Plaintiff and the plaintiff class seek a judgment against Defendant for the fair value of the

benefit wrongfully conferred by Plaintiff and the plaintiff class on Defendant.

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FOR A FIRTH CAUSE OF ACTION
(Constructive Trust)

50. Plaintiffs and the plaintiff class repeat and reallege all of the allegations contained in the

previous paragraphs as if they were repeated verbatim herein.

51. The circumstances under which Defendant acquired from Plaintiff and the plaintiff class the

excessive rates for water and sewage at issue in this case, to wit and inter alia, being the toxicity

of the water and the excessive health issues of the plaintiffs class and the quality of the water

generally being third-world substandard, make it inequitable that Defendant should retain any

money, rate or fees at all from the Plaintiffs and plaintiff class.

52. The constructive trust further arises from the Defendant’s violation of its legal obligations to

Plaintiff and the plaintiff class arising under South Carolina law, the contracts at issue in this

case, and other authorities.

53. Plaintiffs and the plaintiff class seek an order from this Court declaring the excessive rates for

water and sewage unlawfully collected by the Defendant to be a constructive trust for the

benefit of Plaintiff and the plaintiff class. The establishment of said constructive trust shall be

for the payment of the damages sought by Plaintiff and the plaintiff class in this case.

JURY DEMAND

54. Plaintiffs and plaintiffs’ class demand a trial by jury on all causes of action sounding in law.

WHEREFORE, the Plaintiffs demand a trial by jury pursuant to Rule 38(b) of the South Carolina

Rules of Civil Procedure, and further Plaintiffs demand judgment against the Defendant on the various

causes of action, for both for actual, compensatory, consequential, incidental and punitive damages in

an amount to be determined by the jury reasonable attorneys, fees and costs; and on behalf of

themselves and all others similarly situated, prays that the Court enter judgment against the City of

Denmark and award the following relief:

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a. Certification of the proposed class under Rule 23, SCRCP.;
b. Appointment of Plaintiff as class representative;
c. Appointment of the undersigned attorneys as class counsel;
d. Granting the declaratory judgment requests as to the matters set forth above;
e. Granting Plaintiff and each class member a judgment for all damages allowed
by law and equity;
f. Granting the undersigned attorneys a reasonable attorneys' fees and costs;
g. Ordering the establishment of a “common fund” out of which the
aforementioned damages and attorneys' fees shall be paid; and
h. Such other and further judiciary determinations and relief as may be
appropriate in this proceeding.

Respectfully Submitted,

HARRELL LAW FIRM, P.A.

s/ John D. Harrell, Sr.

By: _________________________________________
John D. Harrell, Sr., Esquire
2000 Sam Rittenberg Blvd., Suite 2001
Charleston, South Carolina 29407
Phone: (843) 766-4700
Fax: (843) 766- 4784
john@hlfpa.com
Attorneys for Plaintiffs individually
And for the Class Plaintiffs

Charleston, South Carolina

November 18, 2018

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