Ray v. City of Rock Hill, S.C.

• Decision Date: 11 September 2019
• Docket Number: Opinion No. 5684,Appellate Case No. 2016-002118
• Citation: Ray v. City of Rock Hill, S.C., 428 S.C. 358, 834 S.E.2d 464 (S.C. App. 2019)
• Parties: Lucille H. RAY, Appellant, v. CITY OF ROCK HILL, South Carolina, a Municipal Corporation, and South Carolina Department of Transportation, an agency of the State of South Carolina, Defendants, Of which City of Rock Hill is the Respondent.
• Court: South Carolina Court of Appeals

428 S.C. 358

834 S.E.2d 464

Lucille H. RAY, Appellant,

v.CITY OF ROCK HILL, South Carolina, a Municipal Corporation, and South Carolina Department of Transportation, an agency of the State of South Carolina, Defendants,Of which City of Rock Hill is the Respondent.

Appellate Case No. 2016-002118

Opinion No. 5684

Court of Appeals of South Carolina.

Heard April 1, 2019

Filed September 11, 2019

Rehearing Denied November 22, 2019

Richard B. Fennell, of James, McElroy & Diehl, P.A., of Charlotte, NC, and Charles S. Bradford, of Charles S. Bradford, P.A., of York, for Appellant.

W. Mark White and Jeremy D. Melville, both of Spencer & Spencer, P.A., of Rock Hill, for Respondent.

LOCKEMY, C.J.:

In this action, Lucille Ray asserts the special circuit court judge erred in granting summary judgment to the City of Rock Hill (the City) as to her claims for inverse condemnation and injunctive relief. In addition, Ray argues the circuit court erred in (1) excluding witness testimony regarding abatability, and (2) granting a directed verdict to the City as to her claim for trespass. We affirm in part, reverse in part, and remand to the circuit court.

FACTS

Ray's claims against the City in this action relate to a 24-inch storm water pipe (the Pipe) located under her property at 330 College Avenue (the Property) in the City. The Pipe begins at a City maintained catch basin on College Avenue in front of the Property and channels storm water underneath Ray's home and through the Property. The Property and the Pipe are located at the topographical low point of a watershed comprising approximately 29 acres.

Ray's predecessors-in-title constructed a home on the Property in the 1920's. The Pipe was installed on the Property prior to the construction of the home. The record contains no evidence of who originally installed the Pipe, who owns the Pipe, or the existence of any easement for piping water across the Property. The record reveals one of Ray's predecessors-in-title was aware of the Pipe and connected a drainage pipe into the Pipe.

Ray acquired the Property in May 1985 and acknowledges a history of sinkholes and cave-ins on the Property since the time of her acquisition. In 1992, Ray observed as her gardener fell waist deep into a sinkhole behind her home. Ray was also aware of bending and movement in the roof frame of the home in 1995 and again in 2007. By 2008, Ray was aware of the existence of the Pipe and was concerned that water leaking from the Pipe might be damaging her home. Ray noticed the front steps of her home appeared to be sinking and requested the City investigate the Pipe. In 2008, City employees came to the Property at least twice and informed Ray that a storm water pipe "ran toward the steps" of Ray's house.

On November 6, 2012, Ray filed suit against the City and the South Carolina Department of Transportation (SCDOT).

In her complaint, Ray asserted causes of action for trespass and inverse condemnation; she also sought injunctive relief and attorney's fees. Ray claimed her home incurred structural damage due to foundation movement as a result of water leaking from the Pipe.

On March 24, 2014, SCDOT filed a motion for summary judgment on each of Ray's claims. The circuit court granted the motion and all causes of action asserted against SCDOT were dismissed.

On May 19, 2014, the City filed a motion for summary judgment. Following a hearing, the special circuit court judge granted the City partial summary judgment, dismissing Ray's claims for inverse condemnation, injunctive relief, and attorney's fees. The judge further held the collection and discharge of water under Ray's home may be considered an affirmative, intentional act, thus leaving a genuine issue for trial as to Ray's trespass claim. The judge ruled the statute of limitations began to run on Ray's trespass claim no later than 2008. However, the judge found a genuine issue of fact existed as to whether the asserted trespass in this case was abatable. The judge noted that, pursuant to case law, where the offending conduct is abatable, the statute of limitations begins to run with each new invasion of a plaintiff's property. Therefore, since abatability is an issue of fact, the judge found Ray's remaining claim for trespass survived as to each new invasion for the three years prior to November 6, 2009. The City's and Ray's subsequent motions to reconsider were denied.

On September 12, 2016, the first day of trial, the City moved to exclude certain testimony, including opinions expected to be offered by Michael Leonard, a structural engineer and Ray's expert witness. In deposition testimony, Leonard opined that the structural damage to Ray's home was partially the result of the leaking Pipe. Leonard further testified that to render a qualified opinion on the abatability of the flow of water to and through the Pipe would require a thorough engineering study. Leonard testified he had not performed a hydrology study or studied the flow of water to or through the Pipe. Leonard testified he was unable to testify to a reasonable degree of engineering certainty that the flow of water could be reasonably routed around the Property.

The circuit court granted the City's motion, excluding Leonard's opinion testimony regarding the issue of the abatability of the alleged trespass. Thereafter, Ray acknowledged she could not meet her burden of proof in light of the court's ruling and stated "it would be appropriate to enter judgment against me." In a subsequent order, the circuit court held that given the special circuit court judge's prior ruling on summary judgment, only an abatable trespass remained as a viable cause of action. The court explained that because it had excluded Leonard's opinion testimony as unreliable concerning abatement, Ray's trespass cause of action was unviable. With no genuine issue of material fact remaining, the court found the City was entitled to judgment as a matter of law. This appeal followed.

LAW/ANALYSIS

I. Summary Judgment

Ray argues the special circuit court judge erred in granting summary judgment as to her claims for inverse condemnation and injunctive relief.

"An appellate court reviews a grant of summary judgment under the same standard applied by the [circuit] court pursuant to Rule 56, SCRCP." Lanham v. Blue Cross & Blue Shield of S.C., Inc. , 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that ... no genuine issue [exists] as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all the inferences [that] can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party ... [who] is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment." Hancock v. Mid-S. Mgmt. , 381 S.C. 326, 329-31, 673 S.E.2d 801, 802-03 (2009).

A. Inverse Condemnation

"An inverse condemnation occurs when a government agency commits a taking of private property without exercising its formal powers of eminent domain." Hawkins v. City of Greenville , 358 S.C. 280, 290, 594 S.E.2d 557, 562 (Ct. App. 2004). "To prove an inverse condemnation, a plaintiff must show: (1) an affirmative, positive, aggressive act on the part of the governmental agency; (2) a taking; (3) the taking is for a public use; and (4) the taking has some degree of permanence." Marietta Garage, Inc. v. S.C. Dep't of Pub. Safety , 352 S.C. 95, 101, 572 S.E.2d 306, 308 (Ct. App. 2002).

The special circuit court judge determined Ray's claim that the City collected water into its storm water drainage system and channeled it under her home did not support her claim of inverse condemnation. The judge found no positive, aggressive acts were committed by the City. The judge noted Ray did not allege the construction of any new improvements causing water to flow through the Pipe under her Property, and Ray failed to cite any case law which would categorize maintenance of the storm water drainage system as a positive, aggressive act.

Ray contends the City's maintenance in November 2012 of drainage pipes situated under College Avenue in front of her Property constituted an affirmative act sufficient to give rise to a claim for inverse condemnation. She maintains the City, after repairing several broken pipes under College Avenue, reconnected the subject Pipe to the City's storm water drainage system against her wishes.¹

Ray asserts the City undertook a permanent public project to modernize its infrastructure along College Avenue, and, as a result, it took positive steps to direct its storm water system flow directly under her home.

The City asserts there is no evidence it installed or owned the subject Pipe or that any new construction or improvements upstream from the Pipe resulted in an increase in the amount or flow rate of water toward Ray's Property. The City contends its maintenance of the pipes under College Avenue in November 2012 was not to the subject Pipe or to a pipe directly connected to the Pipe. The City argues summary judgment was proper because Ray was unable to produce any evidence to attribute the flow of water through the Pipe to any action by the City.

Although the City asserts its repair work in 2012 only involved one pipe and did not affect the subject Pipe, we believe questions of fact exist as to which pipes were damaged and in need of repair. On November 13, 2012, Ray's attorney advised the City that three large pipes in front of Ray's Property were damaged during the City's work on College Avenue and specifically advised the City that Ray did not consent to the reconnection of the Pipe to any of the replacement pipes. Ray submitted photographs of the damaged pipes in front of her...