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Ray v. City of Rock Hill

Court of Appeals of South Carolina

September 11, 2019

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

          Heard April 1, 2019

          Appeal From York County D. Garrison Hill, Circuit Court Judge S. Jackson Kimball, III, Special Circuit Court Judge

          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.

         LA ...


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