Foggie v. CSX Transp., Inc.

• Decision Date: 03 June 1992
• Docket Number: No. 23880,23880
• Citation: 431 S.E.2d 587,313 S.C. 98
• Parties: Robert FOGGIE, Respondent-Appellant, v. CSX TRANSPORTATION, INC., Appellant-Respondent. . Heard
• Court: South Carolina Supreme Court

Page 587

431 S.E.2d 587

313 S.C. 98

Robert FOGGIE, Respondent-Appellant, v. CSX TRANSPORTATION, INC., Appellant-Respondent.

No. 23880.

Supreme Court of South Carolina.

Heard June 3, 1992.

Decided June 21, 1993.

Rehearing Denied July 13, 1993.

William P. Simpson and James E. Lady of Haynsworth, Marion, McKay & Guerard, Columbia; and Thomas F. Babb, of Babb & Babb, Laurens, for appellant-respondent.

Jack H. Tedards of Leatherwood, Walker, Todd & Mann; and Henry S. Sullivan of Ashmore, Rabon & Sullivan, Greenville, for respondent-appellant.

FINNEY, Justice:

Appellant-Respondent CSX Transportation, Inc., (CSX) appeals the trial court's denial of its motion to amend its answer; the jury's award of actual and punitive damages to Respondent-Appellant Robert Foggie (Foggie); and confirmation of the punitive damage award by the trial court. Foggie appeals from the order of the trial court requiring him to elect recovery under either his cause of action based upon obstruction of way or for violation of the UTPA. We affirm in part, dismiss in part, and reverse in part.

Charleston Southern Railroad, CSX's predecessor, constructed a portion of its railway on a 200 foot strip of land purchased from H. L. Kennedy, Sr., in 1956. The railroad traversed Kennedy's 103 acre tract of land, dividing it into two parcels of approximately fifty acres each. A railroad crossing was installed to permit ingress and egress between the two Kennedy parcels. The land was transferred to H. L. Kennedy, Jr., in 1976, and he continued to use it primarily for agriculture.

During the course of maintenance in 1989, the crossing was removed and not re-installed due to CSX's concern about crossing accidents. On November 5, 1990, H. L. Kennedy, Jr., instituted this action against CSX, demanding a jury trial on allegations of willful obstruction of way and violation of the Unfair Trade Practices Act (UTPA). The complaint sought nominal, actual, and punitive damages; trebling of actual damages; attorneys' fees; costs; and a declaratory judgment ordering CSX to restore and maintain the crossing. While the action was pending, Foggie acquired the land and was substituted as plaintiff.

CSX's answer dated January 18, 1991, inter alia, asserted fee simple ownership and admitted that a crossing was constructed over the way and used by the landowner until 1989. Thereafter, CSX's counsel located in his files documents which allegedly indicated that the crossing was not pre-existed by a road when the initial tracks were laid. On August 16, 1991, CSX moved to withdraw its admission and deny the existence of a way at the time of the conveyance to the railroad. On August 24, 1991, CSX moved for summary judgment, asserting that no road was in existence prior to construction of the rail line.

After a hearing on August 26, 1991, the court refused to permit amendment of CSX's answer. The trial judge held that Foggie would be prejudiced by the continuing deprivation of the use of his property during the delay resulting from withdrawal of the admission, and that the amendment was not required by justice. The trial court denied CSX's motion for summary judgment, holding that the one piece of circumstantial evidence presented was not determinative of the issue in controversy.

At the trial on August 28, 1991, evidence presented by Foggie included testimony that he intended to establish a mobile home park on the rear portion of the property behind the railroad and construct single family dwellings on the front portion. No evidence was presented by CSX. The trial court submitted the causes of action based upon obstructing a private way and violation of the UTPA to the jury and, sua sponte, reserved to its equity jurisdiction the issue of declaratory judgment.

The jury found for Foggie against CSX on the first and second causes of action for violation of Section 58-17-1330, obstructing a private way, awarded $66,250 actual damages, and $75,000 punitive damages; and returned a verdict of $25,000 actual damages on the third cause of action for violation of the UTPA, with a specific finding of willfulness on the part of CSX. The trial court granted declaratory judgment in favor of Foggie and ordered that CSX reinstall the railroad crossing.

CSX moved to limit actual damages to the minimum established by Section 58-17-3980, and to require Foggie to elect between his causes of action based upon obstructing the way and violation of the UTPA. The trial court ordered Foggie to elect and, preserving his objection, Foggie elected recovery for violation of the statute prohibiting obstructing a private way. Foggie moved for an additur and trebling of actual damages in addition to punitive damages, contending the jury split the damages between the two causes of action and that he was entitled to the total of all actual damages awarded.

On September 26, 1991, the court denied CSX's motion to limit damages, denied Foggie's motion for additur, trebled actual damages, and confirmed the punitive damage award. Asserting that the trial court misstated facts surrounding the case, CSX filed a motion on September 30, 1991, for the court to reconsider its refusal to allow amendment of its answer. On October 7, 1991, CSX moved for a new trial and to amend judgment, based upon the court's denial of the motion to amendment its answer to conform to the evidence, the court's submission of the issue of punitive damages to the jury, and the court's application of Section 58-17-3950 to the case.

On October 10, 1991, the trial court held a hearing on CSX's motion for reconsideration and amendment. Foggie waived the ten-day notice requirement, and the trial court also considered CSX's motion for a new trial and to amend judgment. On November 12, 1991, the court confirmed its earlier denial of CSX's motion to amend its answer, holding that CSX had failed to show that the proposed amendment had substantial merit, had failed to justify its delay in moving to amend, and that CSX was seeking to prevent an adverse judgment through amendment of the pleadings. The court denied the motion for a new trial or to amend judgment based upon its finding that recovery was permitted under both Section 58- 17-3950 and Section 58-17-3980.

Both parties appeal. CSX alleges the trial court erred 1) in denying permission to amend its answer; 2) in submitting to the jury the cause of action under Section 58-17-3980, in violation of Section 58-17-3990; 3) in submitting the cause of action based upon violation of the UTPA to the jury; 4) in submitting the issue of punitive damages under Section 58-17-3950 to the jury; 5) and in awarding punitive and treble actual damages. Foggie asserts the trial judge erred in requiring him to elect between recovery under the railroad statutes or the UTPA.

As to its first issue, CSX asserts that Rule 15, SCRCP, is liberal in permitting amendment of pleadings; that Foggie failed to show the prerequisite prejudice upon which to deny amendment of its answer; and that such denial constituted a gross injustice and abuse of discretion.

The trial court considered affidavits submitted by CSX and plats of other property in Laurens County purchased for the railway. CSX asserted that plats of other property showed a sketch of what was argued to be a private way; that no private way appeared on a plat of Foggie's property; and therefore, none existed in 1956. The record reflects no effort to rescind the admission that the private crossing was constructed by the railway in 1956 and used by the landowner until 1989. Without objection, Foggie submitted an aerial photograph made between 1956 and 1959 and a 1989 plat of his property. The crossing and private way were apparent on the photograph; the private way was not shown on the plat. The trial judge noted that the newly raised evidence had been in the sole possession of CSX and that the trial date was imminent. Based upon the pleadings, evidence, and the state of the record, the trial court concluded that extensive delay would be required to investigate conditions as they existed in 1956, that Foggie would, in effect, be deprived of the use of a substantial portion of his property during the investigation, and that justice did not require the amendment.

Rule 15, SCRCP, provides that a pleading may be amended only by leave of the court or written consent of the adverse party after expiration of thirty days from service, and that leave to amend shall be freely given when justice requires and does not prejudice any other party.

It is well established that a motion to amend is addressed to the sound discretion of the trial judge, and that the party opposing the motion has the burden of establishing prejudice. See Forrester v. Smith & Steele Builders, Inc., 295 S.C. 504, 369 S.E.2d 156 (Ct.App.1988).

In view of the tenuous nature of the assertion sought to be declared, the remaining admissions in CSX's answer, the facts in evidence, and the circumstances surrounding this case, we...