Laughon v. O'BRAITIS, 3858.

• Decision Date: 16 August 2004
• Docket Number: No. 3858.,3858.
• Citation: 602 S.E.2d 108,360 S.C. 520
• Court: South Carolina Court of Appeals
• Parties: Charlotte O'Braitis LAUGHON, Appellant, v. Catheryne Ruth O'BRAITIS, Respondent.

360 S.C. 520

602 S.E.2d 108

Charlotte O'Braitis LAUGHON, Appellant, v. Catheryne Ruth O'BRAITIS, Respondent.

No. 3858.

Court of Appeals of South Carolina.

Heard June 8, 2004.

Decided August 16, 2004.

Rehearing Denied September 22, 2004.

Clinch H. Belser, Jr. and Michael J. Polk, both of Columbia, for Appellant.

Demetri K. Koutrakos, of Columbia, for Respondent.

HEARN, C.J.:

Charlotte O'Braitis brought this action seeking the partition of real property and an accounting for rents and profits against her sister, Catheryne Ruth O'Braitis, alleging Catheryne ousted her from a piece of real property the two parties own. Charlotte appeals the trial court's order granting the partition but denying her request for expenses and rents caused by Catheryne's alleged ouster. We affirm.

FACTS

Charlotte and Catheryne's father passed away on April 19, 1997, and left his home to his four children in equal shares. Two of the siblings gave their share of the property to Catheryne, who had lived in the home assisting her father since 1983. Charlotte, who resides in California, retained her one-quarter share of the property.

Upon learning of her father's death, Charlotte and her domestic partner, Dr. Weissman, visited the subject property for the first time since 1983. The day after her father's funeral, Charlotte and Dr. Weissman began going through the home in order to find Charlotte's personal belongings. While they attempted to find her things, Charlotte testified that her siblings hovered over her and that her brother became verbally abusive and confrontational. Because of her brother's behavior, Charlotte called the sheriff's office. The officer, acting on his own volition and without any instruction from Catheryne, ordered Charlotte and Dr. Weissman off of the property and issued a trespassing warrant under which Charlotte and Dr. Weissman were not allowed on the property for six months.

Approximately one year later, Charlotte and Dr. Weissman visited the property for the purpose of reviewing personal property of her father's estate. Charlotte testified that Catheryne did not welcome her on the property; however, the evidence shows that Catheryne did not deny Charlotte access to the property.¹ In September 1998, Charlotte and Dr. Weissman returned to the property again for the purpose of reviewing personal property of the estate. During this visit, Catheryne hired a Richland County police officer to keep things under control. The officer testified that Charlotte walked into the house without knocking and went through the personal property without supervision.

In April 1999, Charlotte filed an action against her siblings in probate court, seeking an accounting, termination of the appointment of the personal representative, and other relief. In the probate action, Charlotte alleged Catheryne interfered with and obstructed her right to enter the subject property and sought to recoup money she spent on attorney's fees and other expenses incurred during the probate of her father's estate. The parties later entered into an agreement pursuant to section 62-3-912 of the South Carolina code, and the probate court action was then dismissed with prejudice on June 1, 2000, pursuant to an order of dismissal to which all parties consented.

On August 4, 2000, Charlotte brought this action for a partition and an accounting of rents and profits based on Catheryne's ouster of her from the property. Catheryne asserted counterclaims for partition and accounting and alleged Charlotte's claims were barred by res judicata. The case was referred to the master-in-equity. The master issued an order granting partition, denying compensation for ouster, and allowing Catheryne to purchase Charlotte's portion of the property for the net price (after offsets) of $2,264.31. Charlotte filed a motion to reconsider, which the master denied. This appeal followed.

STANDARD OF REVIEW

A partition action, as well as an action for accounting, is an action in equity. In an appeal from an equitable action, this court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Doe v. Clark, 318 S.C. 274, 276, 457 S.E.2d 336, 337 (1995). However, this broad scope of review does not require this court to disregard the findings at trial or ignore the fact that the trial judge was in a better position to assess the credibility of the witnesses. Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct.App.1996).

LAW/ANALYSIS

I. Ouster

Charlotte first argues the master erred in finding that Catheryne was not obligated to pay the expenses she incurred and the rent that she lost during the time she was allegedly ousted from the property. We disagree.

"`Ouster' is the actual turning out or keeping excluded a party entitled to possession of any real property." Freeman v. Freeman, 323 S.C. 95, 99, 473 S.E.2d 467, 470 (Ct.App.1996). "By actual ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title and a denial of the right of the other tenants to participate in the profits." Woods v. Bivens, 292 S.C. 76, 80, 354 S.E.2d 909, 912 (1987). Freeman provides:

The acts relied upon to establish an ouster must be of an unequivocal nature, and so distinctly hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable. Only in rare, extreme cases will the ouster by one cotenant of other cotenants be implied from exclusive possession and dealings with the property, such as collection of rents and improvement of the property.

323 S.C. at 99, 473 S.E.2d at 470 (citation omitted).

Charlotte argues that Catheryne ousted her from the property by (1) refusing to give her a key to the property;² (2) not allowing her unfettered access to the property; and (3) acquiescing in the trespass warrant issued by the police officer. Charlotte contends these actions closely resemble those of the defendant in Parker v. Shecut, 349 S.C. 226, 562 S.E.2d 620 (2002). In Parker, a sister brought suit against her brother alleging he ousted her from a beach house they inherited jointly from their mother. The supreme court found an ouster had occurred based on evidence that the brother changed the locks to the house, refused to give his sister a working key, and otherwise denied his sister access to the property. Id. at 230-31, 562 S.E.2d at 623.

We find the present case differs significantly from Parker. It is uncontested that Catheryne allowed Charlotte access to the property every time she visited. In fact, on all three of Charlotte's visits to the property, she and Dr. Weissman walked freely through the house, looking at and going through personal property. According to the police officer, when Charlotte and Dr. Weissman arrived for the September 1998 visit, "[t]hey came to the front door, just walked straight on in, no knock at all, whatsoever." The officer also stated they "went around the house by themselves" and "were going through every bit of the property." This is hardly a denial of access to the property.

Furthermore, any acquiescence by Catheryne in the trespass warrant of April 1997 is not enough to support a finding of ouster. It is important to note that Charlotte, not Catheryne, was the one who called an officer to the scene when the altercation ensued between Charlotte and her siblings. Because Charlotte enlisted the help of an outside party to settle the dispute, she cannot now attribute the effect of the trespass warrant to Catheryne. Based on all the above, we find Catheryne's actions toward Charlotte do not amount to ouster.

Not only do we hold no ouster occurred, we also hold Charlotte's claim for an accounting is barred by res judicata, or more specifically, issue preclusion. Under the doctrine of issue preclusion, if an issue of fact or law was actually litigated and determined and necessary to a valid and final judgment, the determination is conclusive in a subsequent action on that claim or a different claim. Carman v. S.C. Alcoholic Beverage Control Comm'n, 317 S.C. 1, 6, 451 S.E.2d 383, 386 (1994).

Here, Charlotte filed a petition in probate court seeking an accounting for the attorney's fees and expenses she incurred while traveling between California and South Carolina. Charlotte also alleged in the probate court action that she was entitled to rent from Catheryne because Catheryne interfered with her right to enter the property. Thus, in the probate court action, just as in the present action, Charlotte sought the expenses she incurred and the rent she lost during the time she was allegedly denied access to the property. In fact, Charlotte even admitted while testifying in the present action that she had filed a complaint against Catheryne in probate court raising the same issues that she raises in this action.

The probate court dismissed the action with prejudice pursuant to an order of dismissal to which the parties consented. A dismissal with prejudice acts as an adjudication on the merits and therefore precludes subsequent litigation just as if the action had been tried to a final adjudication. Jones v. City of Folly Beach, 326 S.C. 360, 366, 483 S.E.2d 770, 773 (Ct.App.1997). In...