UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALPINE FORREST PARTNERS, A

California Limited Partnership,

Plaintiff-Appellant,

v.

No. 95-1871

CROWN CENTRAL PETROLEUM

CORPORATION; ATEC ENVIRONMENTAL

CONSULTANTS, a Division of ATEC

Associates, Incorporated,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CA-90-2730-3-0, CA-91-2526-3-0)

Argued: April 4, 1996

Decided: February 6, 1998

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by unpublished per curiam opinion. Judge Hall wrote an

opinion dissenting in part.

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COUNSEL

ARGUED: Deborah R.J. Shupe, BERRY, ADAMS, QUACKENBUSH & DUNBAR, P.A., Columbia, South Carolina, for Appellant.

James Lynn Werner, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, L.L.P., Columbia, South Carolina, for Appellee Crown

Central; Charles E. Carpenter, Jr., RICHARDSON, PLOWDEN,

GRIER & HOWSER, P.A., Columbia, South Carolina, for Appellee

ATEC. ON BRIEF: Theodore von Keller, BERRY, ADAMS,

QUACKENBUSH & DUNBAR, P.A., Columbia, South Carolina, for

Appellant. Cheryl L. Behymer, OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, L.L.P., Columbia, South Carolina, for

Appellee Crown Central; Francis M. Mack, RICHARDSON, PLOWDEN, GRIER & HOWSER, P.A., Columbia, South Carolina, for

Appellee ATEC.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Alpine Forrest Partners, a limited partnership, appeals from a judgment entered on a jury verdict in favor of defendants Crown Central

Petroleum Corporation and ATEC Associates, Inc., in Alpine Forrest's suit alleging property damage from a trespassing (and leaking)

underground gasoline storage tank. We affirm the judgment of the

district court.

I.

In 1987, Crown Central Petroleum purchased a convenience store

on Alpine Road in Columbia, South Carolina, which it operated under

the name "Fast Fare." The Fast Fare store sold gasoline. Next door

was the Alpine Forrest Mobile Home Park.

In the late eighties, there was a flurry of regulatory interest in the

old and often shoddy underground storage tanks used by gasoline stations. In June, 1989, Crown Central hired defendant ATEC Associates, Inc., to install monitoring wells at the Alpine Road Fast Fare.

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ATEC discovered a leak on August 28, 1989, and the leak was

promptly reported to state authorities. A faulty pipe was found and

quickly repaired. A small amount of gasoline has migrated under the

driveway leading into Alpine Forrest, though it has caused no harm

aside from its presence.1

In October 1989, Urban Assets, Inc., a company that buys and

operates mobile home parks, approached the owners of Alpine Forrest

about a potential sale. Lou Frasco was Urban Assets' founder and

prime mover. Frasco hired ATEC, through its ATEC Environmental

Consultants division, to prepare a "Phase I environmental survey" of

the property. ATEC agreed to do the survey for a $2,500 fee. As its

proposal states, "Particular emphasis will be placed on any aboveground drums or tanks, the possibility of underground storage tanks

(USTs), stained areas, past dumping or disposal of debris, any areas

showing evidence of vegetative stress, on-site transformers, and a cursory inspection for potential asbestos containing building materials

(ACBMs)."

Frasco testified that he told Davies Batterton of ATEC that the purchaser of the property would be a limited partnership of investors to

be organized by Urban Assets. Batterton did not recall this alleged

comment, though he admitted that such arrangements are common in

the business, that ATEC often performs work for one party knowing

that a different legal entity will actually purchase the subject property,

and that ATEC is aware that the ultimate purchaser will rely on its

assessment.

On December 8, 1989, ATEC provided the survey to Urban Assets.

It reported no problems on or near the property, except for a leaking

electrical transformer, which was replaced. Full payment was then

tendered to ATEC by plaintiff Alpine Forrest Partners, a limited partnership newly formed by Urban Assets to hold title to the mobile

home park.2 ATEC accepted the payment.

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1 The tanks were removed in December, 1991.

2 Frasco explained that Urban Assets serves simply as a real estate

agent for various groups of investors, and he always forms a limited partnership of those investors to be the legal owner of a property. Urban

Assets had previously paid half of ATEC's fee, so Alpine Forrest's tender of the full $2,500 resulted in an overpayment to ATEC.

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On January 12, 1990, Alpine Forrest Partners purchased the property for $1,400,000, and it has operated the park at full or nearly full

capacity.3 It has been able to raise rents. The market value of the

property, though, is quite a bit less than Alpine Forrest paid. The

source of this deficit is the main issue here.

Just a few days after his purchase, Frasco inspected the property.

He noticed a fence that he believed encroached on his property, as

well as Crown Central's monitoring wells. The surveyor employed for

closing had not reported any encroachments.4 A new survey showed

that Frasco was right; Crown Central's tanks, fence, and some contaminated ground were on Alpine Forrest's side of the line.

Frasco immediately approached Crown Central with a proposal to

deed the parcel on which the tanks encroached to Crown Central if

it would purchase and convey to him an adjoining $45,000 parcel on

which he already held an option. Crown Central rejected the offer. In

a phone call and letter, its general counsel asserted that Crown Central

owned the land on which the encroachments stood by adverse possession. In the letter, counsel stated:

The tanks have been located on the property for well over

the [statutory period]. Second, the area in question has been

enclosed by a chain link fence. Third, the area is maintained

by Fast Fare, Inc.: the grass is cut periodically and concrete

pads have been constructed in the area surrounding the tank

fills. These pads and fill caps are clearly visible.

On October 8, 1990, Alpine Forrest filed separate suits in state

court against Crown Central and ATEC. The suit against Crown Central alleged claims of nuisance and trespass. ATEC was charged with

professional negligence and breach of contract. The suits were

removed to district court. After a long period of discovery, the cases

were consolidated for trial. A jury trial was held from April 4-8, 1994.

At the close of the evidence, Alpine Forrest was permitted to amend

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3 We were informed at argument that the property has recently been

sold.

4 The surveyor has been sued in a separate case.

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its pleadings to assert a negligence claim against Crown Central, and

Alpine Forrest voluntarily dismissed its claim for professional negligence against ATEC.

The jury returned a defense verdict on all counts. Alpine Forrest's

motion for judgment notwithstanding the verdict or for a new trial

was denied. Alpine Forrest appeals.

II.

The suits against Crown Central and ATEC were filed separately.

Much of the discovery overlapped, though, as did the underlying

nucleus of fact and many of the witnesses. Shortly before the trial, the

district court granted ATEC's motion to consolidate the cases for

trial. Alpine Forrest opposed consolidation and now asserts error. The

district courts have broad discretion to consolidate related actions

pending in their districts, A/S J. Ludwig Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928, 933 (4th Cir. 1977), and we

review only for abuse of that discretion.

Though Alpine Forrest alleges repeatedly in its brief that it was

"unduly prejudiced" by the consolidation, and that there was a "very

real possibility and likelihood of jury confusion," it has not explained

to our satisfaction when or how these ill effects occurred. We see no

abuse of discretion.

III.

We now turn to Alpine Forrest's attacks on the judgment for

Crown Central. We must affirm the denial of judgment n.o.v. if there

is substantial evidence to support the verdict. White v. County of

Newberry, 985 F.2d 168, 172-173 (4th Cir. 1993). The district court

may grant a new trial if the verdict is clearly against the weight of the

evidence, and we review its decision for abuse of discretion. Bristol

Steel & Iron Works, Inc. v. Bethlehem Steel Corp. , 41 F.3d 182, 186

(4th Cir. 1994).

In South Carolina, violation of a statute is negligence. This "doctrine" has its own name -- "negligence per se" -- and the name is

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unfortunately misleading, inasmuch as it suggests something akin to

strict liability. Instead, all the statute does is to define the applicable

duty of care.

South Carolina has a statute that prohibits the direct or indirect discharge of pollutants into the environment without a permit.5 S.C.

Code Ann. § 48-1-90. Alpine Forrest would take the indisputable fact

that there was a gas leak and convert it into liability. There are several

problems with this theory.

First, there was evidence from which the jury could find that the

discharge had completely ended before Alpine Forrest bought the

property.6 The right to sue on account of a completed tort is not conveyed sub silentio in a deed of realty. It is a chose in action, which

is a personal right that must be specifically assigned. See generally

63A Am.Jur.2d Property §§ 25-26; Restatement (Second) of Torts

§ 162.

Moreover, because Alpine Forrest asserts damages measured by

permanent diminution in the land's value, it must show permanent

damage. Gray v. Southern Facilities, Inc., 256 S.C. 558, 183 S.E.2d

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5 In relevant part, the statute reads:

(a) It shall be unlawful for any person, directly or indirectly, to

throw, drain, run, allow to seep or otherwise discharge into the

environment of the State organic or inorganic matter, including

sewage, industrial wastes and other wastes, except as in compliance with a permit issued by the Department.

It if were read literally, the statute would be nonsensical, inasmuch as all

matter is either "organic or inorganic." However, the examples given

show that "matter" is limited to substances with a potential to cause environmental harm. Noscitur a sociis. See also S.C. Code Ann. § 48-1-10,

defining, among others, "sewage," "industrial waste," "other wastes," and

"pollution," but not "matter").

6 Only the discharge violates the cited statute. The resulting condition

of pollution does not. Carolina Chemicals, Inc. v. South Carolina Dep't

of Health and Environmental Control, 290 S.C. 498, 351 S.E.2d 575, 577

(App. 1986). Alpine Forrest did present circumstantial evidence from

which the jury could have found that the tank leaked after 1989, but the

jury could rationally have rejected it.

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438, 443 (1971). Gasoline is made of hydrocarbons-- the building

blocks of life -- and it is consequently biodegradable. Crown Central

presented expert testimony that the plume of gasoline has already

ceased to spread, because bacterial degeneration has begun to occur

at the fringes. Crown Central has given Alpine Forrest an unconditional promise of indemnity should any additional measures be

needed. There was no evidence presented of diminished rental value,

of other current expenses to Alpine Forrest, or of a permanent diminution that would outlast remediation of the leak. 7

Next, the jury could have found that the "diminution" was no diminution at all. Alpine Forrest paid $1.4 million for property assessed

for taxes at $785,400. The park may never have been worth more than

the $900,000 "after leak" value claimed by Alpine Forrest at trial.

Finally, "negligence per se" ordinarily requires a knowing violation

of the statute from which the duty of care is imputed. E.g., Niver v.

So. Carolina Dep't of Highways, 302 S.C. 461, 395 S.E.2d 728 (App.

1990) (plaintiff was not contributorily negligent for violating a statute

prohibiting passing near intersections, because the plaintiff did not

know he was approaching an intersection). The jury could certainly

have found that Crown Central did not knowingly discharge the gasoline.

IV.

Alpine Forrest's trespass claim is stronger, but we find no reversible error.

In South Carolina, trespass is an intentional tort. Snow v. City of

Columbia, 409 S.E.2d 797, 802 (S.C. App. 1991).

Although neither deliberation, purpose, motive, nor malice

are necessary elements of intent, the defendant must intend

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7 Alpine Forrest was required to discontinue use of a water well and

hook up to city water, at considerable expense, but not on account of the

spilled gasoline; instead, new state water quality monitoring regulations

had recently gone into effect, rendering continued use of the well prohibitively expensive.

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the act which in law constitutes the invasion of the plaintiff's right. Trespass is an intentional tort; and while the trespasser, to be liable, need not intend or expect the damaging

consequence of his entry, he must intend the act which constitutes the unwarranted entry on another's land.

Id. To prove Crown Central's intent, Alpine Forrest attempted to

introduce an oral statement and, on rebuttal, a letter from Crown Central's counsel asserting that the company owned the parcel by adverse

possession and making allegations of particular facts in support of

that contention. The district court excluded this evidence, as well as

any mention that Crown Central had initially asserted an adverse possession defense in its answer.

At least as regards the statement of and letter from Crown Central's

general counsel, we are troubled by this ruling."Adverse" possession

is open occupation of the land, hostile to the true owner's rights.

Intent to do the act that invades the true owner's rights is surely subsumed in the concept of hostility. Crown Central's assertions therefore admit intent to trespass.

It is true, as Crown Central notes, that alternative pleadings cannot

be used as admissions, and neither, generally, can bare legal conclusions. However, the letter by the general counsel was not a pleading;

it was written long before litigation commenced. Moreover, though

"adverse possession" is itself a "legal" term, in the context of the letter

it encompasses the assertions of fact (primarily"hostility") that are its

elements. Indeed, the letter contains statements of pure fact (e.g.,

Crown Central fenced the area and mows it) that go to Crown Central's intent. Exclusion of these statements was likely error.

Any error, however, was rendered harmless by Alpine Forrest's

failure to prove actual damage resulting from the trespass of the tanks.

As we have noted, Alpine Forrest has measured its damage by the

permanent diminution of the value of its property. The tanks are gone,

and were gone long before the trial. Their mere memory does not

have a legally cognizable effect on the value of a mobile home park.

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Cf. Gray, 183 S.E.2d at 443-444 (rejecting as "speculative" evidence

that a completed tort had injured the "reputation" of the land).8

V.

We next turn to Alpine Forrest's claim against ATEC for breach

of contract. In a special interrogatory, the jury found that Alpine Forrest was not an intended direct beneficiary of the contract between

ATEC and Urban Assets. The special interrogatory read:

Do you find that the contracting parties, Urban Assets, Inc.,

and ATEC Environmental Consultants, intended to create a

direct, rather than an incidental or consequential, benefit to

the plaintiff, Alpine Forrest Partners?

The jury answered "No" to this interrogatory. 9 Alpine Forrest had

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8 It is, of course, among the most ancient of common law doctrines that

damage is presumed from a trespass to land. Snow, 409 S.E.2d at 802

(citing Lee v. Stewart, 10 S.E.2d 804 (N.C. 1940)). If the presence of the

tanks were a trespass, Alpine Forrest was entitled to an award of nominal

damages notwithstanding its failure to prove actual damages. If we were

a state court, we could enforce this hoary formality by granting a new

trial nisi additur awarding Alpine Forrest one dollar, which Crown Central would doubtless accept. However, the Seventh Amendment precludes us from conditioning a new trial on the defendant's unilateral

acceptance of an additur. Dimick v. Schiedt, 293 U.S. 474 (1935). In

these circumstances, we must simply affirm or reverse. The question

before us, then, is whether an error that, at most, deprived Alpine Forrest

of nominal damages is an error that affects its substantial rights. Fed. R.

Civ. P. 61. It surely is not.

Alpine Forrest's other potential trespass claim involves the continued

presence of the gasoline, even though the initial discharge is not actionable because of its accidental nature. See Ravan v. Greenville County,

434 S.E.2d 296, 306-307 (S.C. App. 1993). Again, though, the jury could

rationally have found that the mobile home park suffered no permanent

diminution in value because of the nonpermanence of gasoline, Crown

Central's unequivocal guarantee to bear the costs of any remediation, or

both.

9 The form of the special verdict mentioned above was agreed to by

Alpine Forrest. The case was also submitted to the jury by way of

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agreed to the interrogatory which obviously was taken verbatim from

the law as stated by the South Carolina Supreme Court:

For the [third party beneficiary] rule to apply to a contract

not required by public law or regulation, it must appear that

the result of it was intended by the contracting parties, that

is that they intended (contrary to the presumption) to create

a direct, not incidental or consequential, benefit to the third

party, a stranger to the contract.

Cothran v. Rock Hill, 43 S.E.2d 615, 616-617 (S.C. 1947) (emphasis

added). That very language has since been followed at least twice in

South Carolina in Touchberry v. City of Florence , 367 S.E.2d 149,

150 (S.C. 1988), and Bob Hammond Construction Co., Inc. v. Banks

Construction Co., 440 S.E.2d 890, 891 (S.C. App. 1994).

The evidence presented at trial was sufficient for the jury to find

that there was no intention by ATEC to benefit directly anyone other

than Urban Assets and that any benefit to a third party was incidental

or consequential. Frasco contacted ATEC on behalf of Urban Assets.

The proposed contract from ATEC was addressed directly to Frasco

and Urban Assets without reference to Alpine Forrest or any other

party. Urban Assets responded to the proposed contract stating that it

enclosed a check for $2,500 for services without reference to any

other party, and ATEC's report was made directly to Frasco at Urban

Assets. While Frasco testified that he advised Batterton of ATEC that

he was acting in the name of a limited partnership, that testimony was

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another agreed to form of special verdict, as well as a general verdict,

both of which were returned in favor of ATEC as follows:

We the jury unanimously find for the plaintiff as to the following

cause of action: Breach of contract?

A: No.

We the jury unanimously find for the defendant, this Eighth Day

of April, 1994. 

/s/ Leslie Johnson

Foreperson

Columbia, South Carolina

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refuted by Batterton who testified that there was no mention of a limited partnership during his initial conversation with Frasco or at any

time prior to Urban Assets' acceptance of ATEC's proposal. There

was no reference to any other parties than Urban Assets in the proposal or acceptance letters. ATEC's final report was dated December

8, 1989 and was directed to and received by Urban Assets and Frasco

in December. Frasco testified that there was, in fact, no limited partnership established at the time of his contracting with ATEC and that

Alpine Forrest Partners, the plaintiff limited partnership, was not

established until January 9, 1990, just prior to closing on the purchase

of the property.

The jury's verdict that ATEC and Urban Assets did not intend to

create a direct, rather than an incidental or consequential, benefit to

the yet unformed limited partnership, which is now the plaintiff, is

quite supported by the evidence. Thus the district court did not abuse

its discretion in denying ATEC's motion to set aside the verdict.

The judgment of the district court is accordingly

AFFIRMED.

HALL, Circuit Judge, dissenting in part:

I concur in Parts I through IV of the majority opinion, but I cannot

agree with Part V. The verdict for ATEC is clearly against the weight

of the evidence, and I would grant Alpine Forrest a new trial on its

contract claim.

ATEC contracted to survey the property with "particular emphasis"

on underground storage tanks. By doing so, it implicitly warranted the

suitability of its services for the purpose at hand, i.e. helping the prospective purchaser to evaluate the property. Hill v. Polar Pantries,

219 S.C. 263, 64 S.E.2d 885, 888 (1951). Though it had corporate

knowledge of the leak at the Fast Fare, and the monitoring wells

invited careful investigation, ATEC failed to discover the encroachments or contamination. A reasonable jury could find that ATEC fell

short of its contractual obligations.

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ATEC performed the work at the instance of Frasco, whom it knew

was considering the purchase of the property. There is not any indication that the specific legal identity of the ultimate purchaser had anything to do with ATEC's contractual duties. It contracted with a

Frasco-organized corporation (Urban Assets) and accepted payment

from a Frasco-organized partnership (Alpine Forrest). Alpine Forrest

was not just an intended beneficiary of the contract; it was the only

one. Cf. Kennedy v. Columbia Lumber & Manufacturing Co., 299

S.C. 335, 384 S.E.2d 730, 736 (1989) (strict privity of contract unnecessary in action to enforce an implied warranty); JKT Co. v.

Hardwick, 274 S.C. 413, 265 S.E.2d 510, 512 (Ct.App. 1980) (South

Carolina is "in the vanguard in permitting a plaintiff to recover economic loss from a seller with whom he did not deal and who made

no express warranties to him") (overruled in part on other grounds,

Town of Winnsboro v. Wiedeman-Singleton, Inc., 303 S.C. 52, 398

S.E.2d 500 (Ct.App. 1990), aff'd, 307 S.C. 128, 414 S.E.2d 118 (1992)).1

Because the jury's finding is so clearly against the weight of the evidence, I believe that the district court abused its discretion in denying

a new trial.2

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1 I suspect that the law of third-party beneficiaries is not the best fitted

to Alpine Forrest's case. Urban Assets' rights in the sales transaction and

ATEC contract were surely, even if informally, transferred to Alpine

Forrest. ATEC received notice of this transfer when it received Alpine

Forrest's check, to which it consented through acceptance. An assignment of contractual rights can establish the privity required for a firstparty claim. Professional Bankers Corp. v. Floyd , 285 S.C. 607, 331

S.E.2d 362, 364-365 (Ct.App. 1985).

2 ATEC also argues that the general verdict cures any possible error on

the third-party beneficiary issue. I disagree. Where a general verdict may

rest on an erroneous ground, and there is no way to discern otherwise,

the verdict must be set aside. Sunkist Growers, Inc. v. Winckler & Smith

Citrus Products Co., 370 U.S. 19, 29-30 (1962). Here, there is positive

evidence -- the special interrogatory -- that the jury rested its general

verdict on the third-party beneficiary issue, so the Sunkist rule applies

with full force.

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