Blank v. Timmons

Decision Date30 November 2022
Docket Number2022-UP-425,Appellate Case 2019-001555
PartiesMichele Blank, Appellant, v. Patricia Timmons, Trustee of the Gordon H. Timmons Exempt Family Trust, Respondent.
CourtCourt of Appeals of South Carolina

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard September 12, 2022

Appeal From Charleston County William P. Keesley, Circuit Court Judge

Edward A. Bertele, of Charleston, for Appellant.

Mark A. Mason, of The Mason Law Firm, PA, of Mt. Pleasant, for Respondent.

PER CURIAM

In this property boundary dispute, Michele Blank sued her neighbor the Gordon H. Timmons Exempt Family Trust (the Trust), for contempt of court, slander of title, nuisance, and a declaratory judgment. After a bench trial, the court ruled Blank owns the disputed property, finding the Form 4 dismissal of a previous action filed by the Trust against Blank operated as res judicata. The court then dismissed Blank's claims for contempt, slander of title, and nuisance. Blank appeals, asserting the court erred in dismissing her claims for slander of title and nuisance. We affirm.

I. Facts

After purchasing a vacant lot in the Copahee View Subdivision in Mount Pleasant, the Trust commissioned a survey of the lot in order to build a residential home. As a result, the Trust came to believe its neighbor, Blank, had built her home and artist studio on top of their shared property line, and therefore, Blank's home and studio encroached on the Trust's land. In May 2015, the Trust filed a trespass to try title case against Blank, requesting Blank move her home off the Trust's land. Blank asserted she owned the land under her house and studio, and the Trust's survey had been executed incorrectly. The Trust offered (as it had before filing the lawsuit) to resolve the dispute by quitclaiming the contested area to Blank, but Blank rejected the offer for reasons not apparent from the record or the circumstances. On the day trial was set to begin in June 2016, the Trust agreed to dismiss its case against Blank with prejudice. The Form 4 order from the dismissal stated in its entirety: "[The Trust] states in open court on record they are dismissing their case with prejudice. [Blank] consents."

Within days of the dismissal, the Trust recorded a plat of its lot (Exhibit P-17), depicting a "quitclaim area" that included Blank's home and studio plus a five-foot setback. The Trust then entered a contract to sell its lot and newly built home to a third party. The sale was set to close in September 2016. On August 9, 2016, Blank filed: 1) a Lis Pendens with Charleston County, asserting she owned the quitclaim area shown on Exhibit P-17, plus additional land depicted on the plat, and 2) a complaint to enforce judgment against the Trust, asserting the Trust was violating the dismissal order of its trespass case by claiming it owned land that was Blank's. In response to Blank's Lis Pendens, the Trust recorded a revised plat of its lot (Exhibit P-18)-this time depicting a quitclaim area that encompassed all of the property Blank claimed was hers during the earlier trespass case.

The Trust renegotiated the contract with its buyer, placed a silt fence on the boundary of the quitclaim area depicted on Exhibit P-18, and quitclaimed the disputed area to the Trust. As a result of the smaller remaining lot size, the Trust reduced the purchase price of its property to the buyer by $15,000. The Trust filed a motion to cancel or amend the Lis Pendens so the sale could proceed. On September 14, 2016, the court granted the Trust's motion to amend Blank's Lis Pendens to allow the sale of the portion of the Trust's lot that was not in dispute. Accordingly, the Lis Pendens remained only on the quitclaimed area depicted on Exhibit P-18.

In September 2016, Blank amended her complaint against the Trust, this time adding claims for slander of title and private nuisance. Blank alleged the Trust's recording of Exhibit P-17 was a "false statement" derogatory to Blank's title. Blank additionally alleged rainwater had begun flooding her property due to the Trust's installation of a driveway, which was "constructed so as to drain substantially all such volume of water upon [Blank's] property." On October 6, 2016, Hurricane Matthew barreled through Charleston, flooding Blank's artist studio with up to six inches of water.

A bench trial was held in 2019. In support of her claims, Blank called David Franklin, the engineer and surveyor who created the site plan for Blank's home in 2005. Franklin confirmed he chose the site for Blank's home because most of Blank's property was wetlands and not suitable for building a home. Franklin testified Blank's home was built on stilts to avoid tidal flooding. He also testified in his capacity as an expert in storm-water management, opining that Blank's studio was flooding after heavy rainfall because the Trust had not constructed a swale next to its new driveway.

Blank testified her home was built on stilts but she had enclosed a portion of the ground floor to create her studio. She testified her property never flooded before the Trust installed the new driveway but now flooded after heavy rainfall, causing ponding and the proliferation of mosquitoes. In support of the slander of title claim, Blank's real estate attorney, Jennifer Smith, testified that, as a result of the Trust's recording of Exhibit P-17, Blank no longer enjoyed marketable title to her property, and in order to clear title, the Trust would need to convey the quitclaim area to Blank.

In response, the Trust called its contractor, Mark Strong, to testify. Blank objected to Strong's testimony, asserting Strong was not disclosed on the pre-trial witness list. The court agreed to hear a proffer of Strong's testimony and sustained the objection. In his proffer, Strong testified he requested to build a swale on the disputed property at the time of the driveway installation, but Blank refused to allow the removal of trees necessary to build the swale. Strong testified that, as a result of Blank's refusal, he re-graded the driveway to drain towards the street. Strong testified he personally observed rainfall draining toward the street.

Over Blank's objection, Gordon Timmons also testified that, as a result of Blank's refusal to remove the trees, the driveway was re-graded to drain towards the street. Blank argued Timmons should only be permitted to testify regarding Blank's home's encroachment on the Trust's land, and he could not testify regarding rainfall or the driveway's drainage issues because he was not disclosed in discovery as a witness regarding those topics. The court overruled this objection.

After the trial, the court issued an order ruling that, under theories of res judicata and collateral estoppel, the shared boundary between Blank's lot and the Trust's lot was the boundary as claimed by Blank in the trespass to try title case-and also reflected as the boundary of the quitclaim area in Exhibit P-18.

The court dismissed Blank's claims against the Trust for contempt and slander of title, finding the Form 4 order from the Trust's trespass to try title case was nonspecific, and, because the court in that case "did not follow up on the dismissal with a more specific order or transfer documents," the Form 4 order left the status boundary between the neighboring lots "confusing." The court ruled Blank's slander of title claim failed because the Trust's act of recording Exhibit P-17 with Charleston County was not "malicious, unreasonable, or unjustified." Finally, the court found Blank did not prove her nuisance claim. Blank filed a Rule 59(e), SCRCP motion, asking the court to reconsider its rulings regarding the dismissal of her slander of title and nuisance claims, which the court denied.

II. Discussion

"An action in tort for damages is an action at law." Longshore v. Saber Sec. Servs., Inc., 365 S.C. 554, 560, 619 S.E.2d 5, 9 (Ct. App. 2005). On appeal of an action at law tried without a jury, an appellate court can correct errors of law but "will not disturb the trial court's findings of fact unless no evidence reasonably supports the findings." Jordan v. Judy, 413 S.C. 341, 347-48, 776 S.E.2d 96, 100 (Ct. App. 2015).

Slander of Title

"[T]o maintain a claim for slander of title, the plaintiff must establish (1) the publication (2) with malice (3) of a false statement (4) that is derogatory to plaintiff's title and (5) causes special damages (6) as a result of diminished value of the property in the eyes of third parties." Solley v. Navy Fed. Credit Union, Inc., 397 S.C. 192, 204, 723 S.E.2d 597, 603 (Ct. App. 2012) (alteration in original) (quoting Huff v. Jennings, 319 S.C. 142, 149, 459 S.E.2d 886, 891 (Ct. App. 1995)). "In slander of title actions, the malice requirement may be satisfied by showing the publication was made in reckless or wanton disregard to the rights of another, or without legal justification." Huff, 319 S.C. at 150, 459 S.E.2d at 891.

Blank alleges the Form 4 order dismissing the Trust's previous lawsuit meant the boundary line from Franklin's 2005 survey became the legal boundary. Consequently, Blank claims the Trust acted without legal justification in recording Exhibit P-17, and the court erred in finding the Trust acted without malice or bad faith. Blank asserts the court's ruling that res judicata bars re-litigating the issue of the boundary between the lots is incompatible with its ruling that the Trust acted justifiably by recording Exhibit P-17.

The record supports the court's ruling Blank did not prove her slander of title claim. First, slander of title is not a strict liability tort; its intent requirement is malice....

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