Shipwatch Condominium v. Carolina Concrete ( 2018 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Shipwatch Condominium Association, Inc., Appellant,
v.
Carolina Concrete Systems, Inc.; Sisnroy Engineering,
LLC; Robert G. Sisnroy, individually; Terrence J.
McKelvey; Glasgow Roofing, Inc.; GlassTec, Inc.;
Spectech, Inc.; Sonneborn, Inc.; Chimney Sweeps, Inc.;
Low Country Chimneys, Inc.; EFCO Corp.; W.C.
Johnston Architectural Sales, Inc.; Charleston Glass
Company, Inc.; First Exteriors, LLC; Acrocrete, Inc.;
BASF Corp.; Gary Freeman Architect, Inc.; Gary
Freeman, individually; Defendants,
Of Which Carolina Concrete Systems, Inc.; Sisnroy
Engineering, LLC; Robert G. Sisnroy, individually;
Terrence J. McKelvey; Glasgow Roofing, Inc.; GlassTec,
Inc.; Sonneborn, Inc.; EFCO Corp.; W.C. Johnston
Architectural Sales, Inc.; Charleston Glass Company,
Inc.; First Exteriors, LLC; Acrocrete, Inc.; BASF Corp.;
Gary Freeman Architect, Inc.; and Gary Freeman,
individually; are the Respondents.
Oscar Mendiondo, individually and as representative of a
class of similarly situated owners of condominium units
in the horizontal property regime known as Shipwatch
Condominiums, Appellants,
v.
Carolina Concrete Systems, Inc.; Sisnroy Engineering,
LLC; Robert G. Sisnroy, individually; Terrence J.
McKelvey; Glasgow Roofing, Inc.; GlassTec, Inc.;
Spectec, Inc.; Sonneborn, Inc.; Chimney Sweeps, Inc.;
Low Country Chimneys, Inc.; EFCO Corp.; W.C.
Johnston Architectural Sales, Inc.; Charleston Glass
Company, Inc.; First Exteriors, LLC; Acrocrete, Inc.;
BASF Corp.; Gary Freeman Architect, Inc.; Gary
Freeman, individually; Defendants,
Of Which Carolina Concrete Systems, Inc.; Sisnroy
Engineering, LLC; Robert G. Sisnroy, individually;
Terrence J. McKelvey; Glasgow Roofing, Inc.; GlassTec,
Inc.; Sonneborn, Inc.; EFCO Corp.; W.C. Johnston
Architectural Sales, Inc.; Charleston Glass Company,
Inc.; First Exteriors, LLC; Acrocrete, Inc.; BASF Corp.;
Gary Freeman Architect, Inc.; and Gary Freeman,
individually; are the Respondents.
Appellate Case No. 2015-001644
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Unpublished Opinion No. 2018-UP-029
Heard October 2, 2017 – Filed January 17, 2018
AFFIRMED
R. Patrick Flynn, of Pope Flynn, LLC, of Charleston, for
Shipwatch Condominium Association, Inc.
Jonathan J. Anderson, of Anderson Reynolds &
Stephens, LLC, of Charleston, for First Exteriors, LLC;
Trent M. Kernodle, of Kernodle Coleman, of James
Island, for Sonneborn, Inc. and BASF Corp.; Suzanne
Cuba Ulmer, of Kernodle Coleman, of James Island, for
BASF Corp.; Erin DuBose Dean and Stacey Patterson
Canaday, both of Tupper, Grimsley, Dean & Canaday,
P.A., of Beaufort, for GlassTec, Inc.; Amanda R.
Maybank, of Maybank Law Firm, LLC, of Charleston,
for Charleston Glass Company, Inc.; Tyler Paul Winton
and Paul Eliot Sperry, both of Carlock Copeland & Stair,
LLP, of Charleston, for Sisnroy Engineering, LLC, and
Robert G. Sisnroy; David Starr Cobb, of Turner Padget
Graham & Laney, PA, of Charleston, for Carolina
Concrete Systems, Inc.; Kenneth Michael Barfield, of
Barnwell Whaley Patterson & Helms, LLC, of
Charleston, for Gary Freeman Architect, Inc., and Gary
Freeman; James H. Elliott, Jr., of Richardson Plowden &
Robinson, PA, of Charleston, for First Exteriors, LLC;
and Russell Britton Kelly, of Kelly Law Firm, LLC, of
Charleston, for EFCO, Corp. and W.C. Johnston
Architectural Sales, Inc.
PER CURIAM: In this construction defect case, the Shipwatch Condominium
Association, Inc. and Oscar Mendiondo (collectively, Shipwatch) 1 appeal the trial
court's grant of partial summary judgment to Carolina Concrete Systems, Inc. 2
(CCS), arguing the trial court erred in granting partial summary judgment (1)
despite the existence of a genuine issue of material fact as to when Shipwatch had
notice of its construction defect claims against CCS and (2) on the statute of
limitations without following applicable precedent of the discovery rule or
considering the applicable doctrine regarding the equitable tolling of the statute of
limitations. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:
1
Shipwatch and Mendiondo, the representative of the proposed class of 104 unit
owners at Shipwatch, each filed separate lawsuits against Carolina Concrete
Systems, Inc. and other Respondents for negligent repair work performed at
Shipwatch. This court consolidated the two actions for appeal.
2
Other Respondents include: Sisnroy Engineering, LLC; Robert G. Sisnroy,
individually; Terrence J. McKelvey; GlassTec, Inc.; Sonneborn, Inc.; EFCO Corp.;
W.C. Johnston Architectural Sales, Inc.; Charleston Glass Company, Inc.; First
Exteriors, LLC; BASF Corp.; Gary Freeman Architect, Inc.; and Gary Freeman,
individually.
1. As to whether the trial court erred in granting partial summary judgment:
See S.C. Code Ann. § 15-3-530 (2005) (establishing three years as the limitation
for filing an action on a contract, obligation, or liability, except those provided for
in section 15-3-520); S.C. Code Ann. § 15-3-20 (2005) (providing the statute of
limitations starts to run when the "cause of action shall have accrued"); Brown v.
Sandwood Dev. Corp., 277 S.C. 581, 583, 291 S.E.2d 375, 376 (1982) (adopting
the "discovery rule" to determine when a cause of action accrues); Dean v. Ruscon
Corp., 321 S.C. 360, 363, 468 S.E.2d 645, 647 (1996) ("According to the
discovery rule, the statute of limitations begins to run when a cause of action
reasonably ought to have been discovered," and "[t]he statute runs from the date
the injured party either knows or should have known by the exercise of reasonable
diligence that a cause of action arises from the wrongful conduct."); Dorman v.
Campbell, 331 S.C. 179, 184, 500 S.E.2d 786, 789 (Ct. App. 1998) ("The statute of
limitations begins to run from this point, and not when advice of counsel is sought
or a full-blown theory of recovery developed."); Dean v. Ruscon Corp., 321 S.C.
360, 363-64, 468 S.E.2d 645, 647 (1996) ("We have interpreted the 'exercise of
reasonable diligence' to mean that the injured party must act with some promptness
where the facts and circumstances of an injury place a reasonable person of
common knowledge and experience on notice that a claim against another party
might exist." (quoting Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 303,
278 S.E.2d 333, 334 (1981))); Dorman, 331 S.C. at 185, 500 S.E.2d at 789 ("[T]he
fact that the injured party may not comprehend the full extent of the damage is
immaterial.").
2. As to whether the trial court erred in granting partial summary judgment on
the statute of limitations: See S.C. Code Ann. § 15-3-530 (2005) (establishing three
years as the limitation for filing an action on a contract, obligation, or liability,
except those provided for in section 15-3-520); Hooper v. Ebenezer Senior Servs.
& Rehab. Ctr., 386 S.C. 108, 115, 687 S.E.2d 29, 32 (2009) ("Equitable tolling is
judicially created; it stems from the judiciary's inherent power to formulate rules of
procedure where justice demands it."); id. at 115-17, 687 S.E.2d at 32-33 ("Where
a statute sets a limitation period for action, courts have invoked the equitable
tolling doctrine to suspend or extend the statutory period to ensure fundamental
practicality and fairness. The party claiming the statute of limitations should be
tolled bears the burden of establishing sufficient facts to justify its use. It has been
observed that equitable tolling typically applies in cases where a litigant was
prevented from filing suit because of an extraordinary event beyond his or her
control. . . . The equitable power of a court is not bound by cast-iron rules but
exists to do fairness and is flexible and adaptable to particular exigencies so that
relief will be granted when, in view of all the circumstances, to deny it would
permit one party to suffer a gross wrong at the hands of the other. Equitable tolling
may be applied where it is justified under all the circumstances. We agree,
however, that equitable tolling is a doctrine that should be used sparingly and only
when the interests of justice compel its use." (citations, footnotes, and quotation
marks omitted)).
AFFIRMED.
SHORT, WILLIAMS, and GEATHERS, JJ., concur.