THE STATE OF SOUTH CAROLINA In The Court of Appeals

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

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

Opinion No. 5684 Heard April 1, 2019 – F iled September 11, 2019

AFFIRMED IN PART, RE VERSED IN PART, AND

REMANDED

Richard B. Fennell, of Jame s, 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 Ro ck 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 Hi ll (the City) as to

her claims for inverse condemna tion and injunctive relief. In addition, Ray argues the circuit court erred in (1) excluding witness testimony rega rding abatability, and (2) granting a directed verdict t o the City as to her claim for trespass. We affirm in part, reverse in part, and re mand to the circuit court.

FACTS

Ray's claims against the City in this action relate to a 24-inc h storm water pipe (the Pipe) located under her property at 330 College Avenue (the Pro perty) in the City. The Pipe begins at a City maint ained catch basin on College Ave nue in front of the Property and channels storm water underneath Ray's home and thr ough the Property. The Property and the Pipe are located at the topogra phical low point of a watershed comprising a pproximately 29 acres.

Ray's predecessors-in-title const ructed a home on the Property in the 1920's. The Pipe was installed on the Prope rty prior to the construction of the home. The

record contains no evidence of w ho originally installed the Pip e, who owns the Pipe, or the existence of any eas ement for piping water across the Property. The

record reveals one of Ray's pred ecessors-in-title was aware of the Pipe and connected a drainage pipe into the Pipe.

Ray acquired the Property in M ay 1985 and acknow ledges a histor y of sinkholes and cave-ins on the Property sin ce the time of her acquisition. In 1992, Ray observed as her gardener fell wa ist deep into a sinkhole behind her home. Ray was also aware of bending and movement in the roof frame of the hom e in 1995 and again in 2007. By 2008, Ray was aware of the existence of the Pipe and was concerned that water leaking fro m the Pipe might be damaging he r 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 Prop erty at least twice and informed Ray that a storm wa ter pipe "ran to ward the steps" of Ray's house.

On November 6, 2012, Ray filed su it against the City and the So uth Carolina Department of Transportation (SCDO T). In her complaint, Ray as serted causes of action for trespass and inverse condemnation; she also sought i njunctive relief and attorney's fees. Ray claimed her home incurred structural dama ge 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 cau ses 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 in verse condemnation, injunctive re lief, and attorney's fees. The judge further held th e collection and discharge of w ater under Ray's home may be considered an affirm ative, intentional act, thus le aving a genuine issue for trial as to Ray's tres pass claim. The judge ruled th e statute of limitations began to run on Ray's trespa ss claim no later than 2008. However, the judge found a genuine issue of fact existed a s to whether the asserted tres pass in this case was abatable. The judge noted that , pursuant to case law, where th e offending conduct is abatable, the statute of lim itations 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 inva sion for the three years prior to November 6, 2009. The City's and Ray's subsequ ent motions to

reconsider were denied.

On September 12, 2016, the first day of trial, the City moved to exclude certain testimony, including opinions exp ected to be offered by Michael Leonard, a structural engineer and Ray's e xpert witness. In deposition te stimony, Leonard opined that the structural dama ge to Ray's home was partially the result of the leaking Pipe. Leonard further t estified that to render a quali fied opinion on the abatability of the flow of wate r to and through the Pipe would require a thorough engineering study. Leonard testif ied he had not performed a hy drology 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 rout ed around the Property.

The circuit court granted the Ci ty's motion, excluding Leonard' s opinion testimony regarding the issue of the aba tability 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 appropria te to enter judgment against m e." In a subsequent order, the circuit court held t hat given the special circuit co urt judge's prior ruling on summary judgment, only an abata ble trespass remained as a vi able cause of action. The court explained that because it had excluded Leona rd's opinion testimony as unreliable concerni ng abatement, Ray's trespass ca use of action was unviable. With no genuine issue of material fact remaining, the court found the City was entitled to judgment as a m atter of law. This appeal followed.LAW/ANALYSIS

I. Summary Judgment

Ray argues the special circuit c ourt judge erred in granting su mmary judgment as

to her claims for inverse conde mnation 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, depositi ons, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that . . . no genuine issue [exist s] as to any material fact an d that the moving party is entitled to a judgment as a ma tter of law." Rule 56(c), SCRCP. "In determining whether any triable issues of f act exist for summary judgment p urposes, 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 s cintilla of evidence in order t o 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 commit s a taking of private property without exercising its formal powers of eminen t domain." Hawkins v. City of Greenville , 358 S.C. 280, 290, 594 S. E.2d 557, 562 (Ct. App. 2004). "To prove an inverse conde mnation, a plaintiff must show: (1) an affirmative, positive, aggressive act on the part of the govern mental 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 channe led 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 Ra y did not allege the construction of any new improvements causing water to flow through the Pipe under her Property, and Ray faile d to cite any case law which w ould categorize

maintenance of the storm water drainage system as a positive, a ggressive act.Ray contends the City's mainten ance in November 2012 of drainag e pipes situated under College Avenue in front of her Property constituted an affirmative act sufficient to give rise to a claim for inverse condemnation. S he maintains the City, after repairing several broke n pipes under College Avenue, reco nnected the subject Pipe to the City's storm water d rainage system against her wish es. 1 Ray asserts the City undertook a permanent public p roject to modernize its infrastructure along College Avenue, and, as a result, it took positive steps to dir ect its storm water system flow directly under her home.

The City asserts there is no ev idence it installed or owned the subject Pipe or that any new construction or improveme nts upstream from the Pipe resulted in an

increase in the amount or flow r ate of water toward Ray's Prope rty. The City

contends its maintenance of the pipes under College Avenue in N ovember 2012 was not to the subject Pipe or t o a pipe directly connected to the Pipe. The City argues summary judgment was proper because Ray was unable to pr oduce any

evidence to attribute the flow o f water through the Pipe to any action by the City.

Although the City asserts its r epair work in 2012 only involved one pipe and did not affect the subject Pipe, we be lieve questions of fact exist as to which pipes were damaged and in need of re pair. On November 13, 2012, Ray' s attorney advised the City that three larg e pipes in front of Ray's Prope rty were damaged during the City's work on Colle ge Avenue and specifically advis ed the City that Ray did not consent to the reconn ection of the Pipe to any of the replacement pipes. Ray submitted photographs o f the damaged pipes in front of her home into evidence. These photos appear to show three large severed pipes and the City's subsequent work to reconnect the pipes and resume the flow of storm water.

This court addressed inverse condemnation and municipal drainage systems in Hawkins v. City of Greenville . Hawkins filed suit agains t the City of Greenville asserting a cause of action for inverse condemnation and allegi ng the City's neglect in designing and maintaining its s tormwater drainage system led to flooding which damaged his property. Hawkins , 358 S.C. at 285-86, 594 S. E.2d at 560. This court found Hawkins failed to allege a ny affirmative, positive, and aggressive acts by the City which damaged his property. Id. at 291, 594 S.E.2d at 562. Specifically, the court found: (1) the acts Hawkins alleged were merely failures to act; and (2) the only affirmative act Hawkins cite d as a basis for his inverse c ondemnation claim

1 On November 13, 2012, Ray's attorney sent a letter to the City instructing them not to reconnect the City's storm wat er drainage system to the Pipe

.was the replacement of a culvert and the installation of material around a nearby

creek. Id. at 291, 594 S.E.2d at 562-63. The court held there was no evi dence in

the record that either of thes e acts caused the flooding on Haw kins's property. Id. at 291, 594 S.E.2d at 563.

We note that while the dissent in the present case finds Hawkins controlling, we

believe Hawkins is distinguishable from the pres ent case. Here, we find a gen uine

issue of material fact exists as to whether the City engaged in an affirmative, positive, and aggressive act in r econnecting City pipes to the Pipe after the City

admitted it did not have an easem ent and Ray told the City not to reconnect. Accordingly, we reverse the sp ecial circuit court judge's grant of summary judgment as to Ray's invers e condemnation claim.

B. Injunctive Relief

"Actions for injunctive relief are equitable in nature." Denman v. City of

Columbia , 387 S.C. 131, 140, 691 S.E.2d 465, 470 (2010). "In equitable actions, an appellate court may review the record and make findings of f act in accordance with its own view of the pre ponderance of the evidence." Id. "To obtain an injunction, a party must demonstr ate irreparable harm, a likeli hood of success on the merits, and the absence of an adequate remedy at law." Id. "An injunction is a drastic remedy issued by the cour t in its discretion to prevent irreparable harm suffered by the plaintiff." Scratch Golf Co. v. Dunes W. Residential Golf Properties, Inc. , 361 S.C. 117, 121, 603 S.E.2d 905, 907 (2004).

The special circuit court judg e found Ray's claim for injunctiv e relief failed as a matter of law because her tresp ass claim provided an adequate r emedy at law. The judge noted Ray "could be made w hole by a damage award on the t respass claim."

Ray argues the City's trespass on the Property is continuing in nature as it recurs

with each rainfall. She contends the judge's finding that a ge nuine issue of fact existed as to whether the trespass was abatable was inconsisten t with its grant of summary judgment to the City as to her claim for injunctive rel ief. Ray asserts that repairing the damage caused by the flow of water through the Pipe beneath her home, while permitting the City t o continue cha nneling water th rough the Pipe, guarantees further damage and litig ation between the parties.

We agree with Ray that an injunc tion is the proper remedy for a continuing

trespass. See Mack v. Edens , 306 S.C. 433, 437, 412 S. E.2d 431, 434 (Ct. App. 1991) ("Injunction is a proper remedy for a continuous trespass to land. Becauseof the permanent and recurring n ature of the injury, which cann ot otherwise be prevented, the courts should enjo in the continuous trespasser t o protect the landowner's property ri ghts from hurt or destruction."). Howev er, as discussed below, we believe the circuit cour t properly granted a directed verdict in favor of the City as to Ray's trespass cl aim. Therefore, our finding be low is dispositive of Ray's argument that t he special circuit court judge erred in granting summary judgment as to her claim for in junctive relief for trespass.

II. Exclusion of Expert Testimony

Ray argues the circuit court erre d in granting the City's motio n to exclude Leonard's expert testimony. We disagree.

"If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a w itness qualified as an expert by knowledge, skill, expe rience, training, or educati on, may testify

thereto in the form of an opini on or otherwise." Rule 702, SCR E.

"Qualification of an expert and the admission or exclusion of h is testimony is a

matter within the sound discreti on of the [circuit] court." Fields v. Reg'l Med. Ctr. Orangeburg , 363 S.C. 19, 25, 609 S.E.2d 506 , 509 (2005). "[T]he trial co urt's decision [to admit or exclude e xpert testimony] will not be dis turbed on appeal

absent an abuse of discretion." Id. "An abuse of discretion occurs when the ruling

is based on an error of law or a factual conclusion that is without evidentiary support." Id. at 26, 609 S.E.2d at 509. "A trial court's ruling on the admi ssibility of an expert's testimony constitut es an abuse of discretion whe n the ruling is manifestly arbitrary, unreasonable, or unfair." Id. "To warrant reversal based on

the admission or exclusion of e vidence, the appellant must prov e both the error of the ruling and the resulting prej udice, i.e., that there is a r easonable probability the jury's verdict was influenced by the challenged evidence or the lack thereof." Id.

"The trial court serves as the gatekeeper in the admission of all evidence presented

at trial . . . ." Watson v. Ford Motor Co. , 389 S.C. 434, 456, 699 S.E.2d 169, 180 (2010). "In determining whethe r to admit expert testimony, the court must make three inquiries." Graves v. CAS Med. Sys., Inc. , 401 S.C. 63, 74, 735 S.E.2d 650, 655 (2012). "First, the [circuit] court must determine whether the subject matter is beyond the ordinary know ledge of the jury, thus requiring an ex pert to explain the matter to the jury." Watson , 389 S.C. at 446, 699 S.E. 2d at 175. Second, the expert must have "acquired th e requisite knowledge and skill to qualify as an expert in the particular subject matter," although he "need not be a specialist in theparticular branch of the field." Id. Finally, the substance of the testimony must be

reliable. Id. It is this final requirement o f reliability which is the cent ral feature of the inquiry. State v. White , 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009).

In analyzing the reliability of proposed expert testimony the c ourt must consider the following factors: "(1) th e publications and peer review o f the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures." Graves , 401 S.C. at 74, 735 S.E.2d at 655 (quoting State v. Council , 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)).

The circuit court ruled Ray may b e able to establish a claim fo r continuing trespass

to the extent she could show int entional collection and dischar ge of water under her home causing damage within the three-year limitations period. The central issue in distinguishing a conti nuing trespass from a permanent trespass is whether abatement of the trespass is rea sonably and practically possibl e. Hedgepath v. Am. Tel. & Tel. Co. , 348 S.C. 340, 357, 559 S.E.2d 327, 337 (Ct. App. 2001). Thus, a material i ssue of fact with respect to Ray 's claim for continuing trespass is whether th e alleged trespass is abatable.

Prior to trial, the City moved to exclude Leonard's expert test imony on the grounds that it was unreliable. The circuit court granted the motion w ith respect to the issue of whether the City's alleged trespass was abatable becau se Leonard "had not done any engineering work on th is issue, and it would not meet [the] criteria of being reliable or assist[ing] the jury." As the court noted in its subsequent order, given the prior ruling on summary judgment, only an abatable tr espass remained as a viable cause of action. The court explained that because it had excluded Leonard's opinion testimony as unr eliable concerning abatement, Ray's trespass

cause of action was unviable.

We find the trial court did not abuse its discretion in grantin g the City's motion to exclude Leonard's testimony. Leonard 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 wate r to or through the Pipe. Leo nard testified he had not analyzed whether an alternativ e drainage line could be plac ed in any particular location to divert water flow; he had not analyzed whether any alternatives would conflict with other existing in frastructure; he had not analyze d the topography of

the watershed area to know if and how an alternative line could reroute the waterflow; and he had not studied or analyzed the feasibility or cos t of any alternatives to routing water flow. Leonard a dmitted that all of these fact ors would have to be studied to properly render an opinion as to the issue of whethe r the flow of water through the Pipe is reasonably and practically abatable. Final ly, Leonard testified that although he belie ved the water flow c ould be rerouted arou nd the Property, he was unable to testify to such with a reasonable degree of engin eering certainty. As gatekeeper for expert testimony , the trial court properly exclu ded Leonard's opinions regarding abatability.

III. Directed Verdict

Ray argues the circuit court erre d in granting a directed verdi ct on her trespass claim. We disagree.

When reviewing the circuit cour t's ruling on a directed verdict motion, this court must apply the same standard as th e circuit court "by viewing t he evidence and all

reasonable inferences in the li ght most favorable to the nonmov ing party." Elam v.

S.C. Dep't of Transp. , 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004). An appellate

court will reverse the circuit court's ruling on a directed ver dict motion only when there is no evidence to support the ruling or when the ruling i s controlled by an

error of law. Law v. S.C. Dep't of Corr. , 368 S.C. 424, 434- 35, 629 S.E.2d 642, 648 (2006). " When the evidence yields only one inference, a d irected verdict in favor of the moving pa rty is proper." Wright v. Craft , 372 S.C. 1, 22, 640 S.E.2d 486, 498 (Ct. App. 2006). "On the o ther hand, the [circuit] co urt must deny a

motion for a directed verdict whe n the evidence yields more tha n one inference or

its inference is in doubt." Id. "When considering a directed verdict motion, neither the [circuit] court nor the appell ate court has authority to decide credibility issues

or to resolve conflicts in th e testimony or evidence." Burnett v. Family Kingdom,

Inc. , 387 S.C. 183, 188-89, 691 S.E .2d 170, 173 (Ct. App. 2010).

After granting the City's motion to exclude Leonard's expert te stimony, Ray

conceded a directed verdict was proper in light of the circuit court's exclusion of Leonard's testimony on the issu e of abatability. With no genui ne issue of material fact remaining, the court found the City was entitled to judgme nt as a matter of

law. We find the court did not e rr in granting a directed verd ict. Ray did not offer any evidence on the issue of aba tability other than the propose d testimony of Leonard. After the court excluded Leonard's testimony, there w as no issue of material fact regarding the cr itical element of continuing tres pass. Thus, a directed verdict in favor of the City was proper.CONCLUSION

We reverse the special circuit court judge's grant of summary j udgment as to Ray's

inverse condemnation claim. A dditionally, we affirm the circui t court's exclusion of witness testimony regarding abatability and its grant of a d irected verdict to the City as to Ray's claim for trespass.

AFFIRMED IN PART, REVERSE D IN PART, AND REMANDED.

MCDONALD, J., concurs.

SHORT, J., concurring in part and dissenting in part: Respectfully, I concur in part and dissent in part. I agree with the majority to affirm the exclusion of expert testimony, the directed verdict on the trespass claim, and the injunctive relief.
However, I would also affirm the trial court's grant of summary judgment on the

inverse condemnation claim. "T o establish an inverse condemnat ion, 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 publ ic use; and (4) the taking has some degree of permanence.'" Hawkins v. City of Greenville , 358 S.C. 280, 290, 594 S.E.2d 557, 562 (Ct. App. 2004) (quoting 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)). I agree with the circuit court that Ray has failed to allege an affirmative, positive, aggressive act on the City's part and Hawkins is controlling. The evidence shows the pipes in the middle of College Avenue were broken during a City project, and the City repaired the pipes. I conclude this was maintenance t o an existing system of pipes and not the basis for a claim for inverse condemnation . Thus, I would

affirm.