Ray v. City of Rock Hill

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Lucille H. Ray, Respondent,
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 Petitioner.
Appellate Case No. 2019-002074
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from York County
D. Garrison Hill, Circuit Court Judge
S. Jackson Kimball III, Special Circuit Court Judge
Opinion No. 28045
Heard January 12, 2021 – Filed August 4, 2021
AFFIRMED AS MODIFIED
W. Mark White and Jeremy D. Melville, of Spencer &
Spencer, P.A., of Rock Hill, for Petitioner.
Richard B. Fennell, of James McElroy & Diehl, P.A., of
Charlotte, NC, and Charles S. Bradford, of Bradford
Espinoza, P.A., of York, for Respondent.
JUSTICE JAMES: Lucille Ray sued the City of Rock Hill (the City) for inverse
condemnation, claiming her property was taken as a result of stormwater flowing
through pipes under City streets and into a terra cotta pipe that runs underneath and
behind her property. The circuit court granted summary judgment to the City, and
the court of appeals reversed, holding a genuine issue of material fact exists as to
whether the City engaged in an affirmative, positive, aggressive act sufficient to
support Ray's claim. Ray v. City of Rock Hill, 428 S.C. 358, 834 S.E.2d 464 (Ct.
App. 2019). We affirm the court of appeals as modified.
Background
Ray purchased a house and lot on College Avenue (the Property) in Rock Hill
in 1985. The house was built by one of Ray's predecessors-in-title in the 1920s.
Before the house was built, someone—there is no evidence in the record as to who—
installed a 24-inch underground terra cotta pipe (the Pipe) under the Property.
The Property and the Pipe are located at the topographical low point of a 29-
acre watershed. Three stormwater pipes installed and owned by the City collect
stormwater and transport it under various streets in the neighborhood. Stormwater
runs through the pipes to a catch basin situate under College Avenue directly in front
of the Property. The Pipe is in turn connected to the catch basin, and when water
reaches the catch basin, it is channeled through the Pipe, under Ray's house, and to
the back of the Property. The Pipe has been channeling stormwater in this fashion
for roughly 100 years. The record contains no evidence of an easement for piping
water under the Property.
Ray acknowledges a history of sinking and settling on the Property. In 1992,
Ray saw her gardener fall waist-deep into a sinkhole ten to twelve feet from the back
of her home. Ray was aware of bending and movement in the roof frame of her
home in 1995 and again in 2007. Ray hired a contractor to fix the damage to her
home on both occasions. In 2008—and this is critical to our discussion of the City's
statute of limitations defense—Ray noticed the steps on the front porch of her home
were sinking. That year, Ray contacted the City, and City employees told her of the
Pipe running underground from College Avenue toward those steps.
On November 6, 2012, Ray commenced this action against the City alleging
causes of action for inverse condemnation and trespass; she also sought injunctive
relief and attorney's fees.1 Ray alleged foundational shifting of her home was caused
by water running through the century-old Pipe, which she claimed was deteriorating.
Sometime around the date Ray filed her lawsuit, the City began maintenance work
on a sewer line beneath College Avenue (the Sewer Project). The sewer line was
underneath the three City stormwater pipes that run into the catch basin in front of
the Property. To get to the sewer line, the City had to dig up part of College Avenue
in front of the Property and had to sever the three City stormwater pipes from the
catch basin. This temporarily stopped the flow of water into the catch basin and
through the Pipe. The Sewer Project was completely unrelated to the transport of
water through the stormwater pipes to the catch basin. The City did not disturb the
Pipe or the catch basin during the Sewer Project, and the Pipe remained connected
to the catch basin.
On November 13, 2012, shortly after the City severed its three City pipes from
the catch basin and one week after this suit was filed, Ray's attorney sent a letter to
the City demanding that it not reconnect the three stormwater pipes to the catch
basin, as that would resume the flow of water into the catch basin and through the
Pipe. Shortly thereafter, the City reconnected the three stormwater pipes, resuming
the flow of water into the catch basin and through the Pipe. As the basis of her
inverse condemnation claim, Ray alleges the City's reconnection of its three pipes to
the catch basin was an affirmative, positive, aggressive act.2
The City moved for summary judgment. After a hearing, the circuit court
granted partial summary judgment to the City, dismissing Ray's claims for inverse
condemnation, injunctive relief, and attorney's fees but allowing Ray's trespass claim
to go forward.3 The circuit court ruled Ray's inverse condemnation claim failed
because the City committed no affirmative, positive, aggressive act. In a 2-1
decision, the court of appeals reversed the grant of summary judgment on Ray's
inverse condemnation claim. Ray v. City of Rock Hill, 428 S.C. 358, 834 S.E.2d 464(Ct. App. 2019). The majority held a genuine issue of material fact existed as to
1
Ray also sued the South Carolina Department of Transportation, but that claim is
not relevant to this appeal.
2
Ray did not mention the City's reconnection of its pipes in her amended complaint;
however, it is clear the City has consented to the consideration of this issue by the
circuit court, the court of appeals, and this Court. We appreciate the City's
commonsense approach to the amendment of Ray's complaint.
3
Ray's trespass, injunctive relief, and attorney's fees claims are irrelevant to this
appeal, but all have been dismissed.
whether the City engaged in an affirmative, positive, aggressive act. The dissent
concluded the City's actions during the Sewer Project were mere "maintenance to an
existing system" and did not support an inverse condemnation claim. Id. at 373, 834
S.E.2d at 472 (Short, J., concurring in part and dissenting in part). This Court
granted the City's petition for a writ of certiorari to review the court of appeals'
decision.
Standard of Review
"An appellate court reviews a grant of summary judgment under the same
standard applied by the trial 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
there is no genuine issue 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, the evidence and all inferences which can be
reasonably drawn therefrom must be viewed in the light most favorable to the
nonmoving party." Lanham, 349 S.C. at 361-62, 563 S.E.2d at 333. "Summary
judgment is not appropriate where further inquiry into the facts of the case is
desirable to clarify the application of the law." Id. at 362, 563 S.E.2d at 333.
Discussion
"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 establish 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 public use; and (4) the taking has some degree of
permanence.'" Id. (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); Gray v. S.C. Dep't of Highways
& Pub. Transp., 311 S.C. 144, 149, 427 S.E.2d 899, 902 (Ct. App. 1992), overruled
on other grounds by Hardin v. S.C. Dep't of Transp., 371 S.C. 598, 641 S.E.2d 437(2007)).
"Whether the plaintiff has established a claim for inverse condemnation is a
matter for the court to determine." WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C.
30, 32, 630 S.E.2d 479, 481 (2006); Cobb v. S.C. Dep't of Transp., 365 S.C. 360,
365, 618 S.E.2d 299, 301 (2005) ("[I]n an inverse condemnation case, the trial judge
will determine whether a claim has been established; the issue of compensation may
then be submitted to a jury at either party's request."). Even though the trial court
must decide the threshold question of whether a government entity's actions amount
to an affirmative, positive, aggressive act, the question is one of fact, not law. If a
genuine issue of material fact exists as to whether the government entity committed
an affirmative, positive, aggressive act causing damage to private property, summary
judgment is not proper. See Rule 56(c), SCRCP.
The court of appeals cited two grounds in support of its holding that a genuine
issue of material fact existed as to whether the City engaged in an affirmative,
positive, aggressive act by reconnecting its stormwater pipes and resuming the flow
of water through the Pipe. First, the court of appeals held "questions of fact exist as
to which pipes were damaged and in need of repair [during the Sewer Project]." Ray,
428 S.C. at 367, 834 S.E.2d at 469. Second, the court of appeals held a genuine
issue of material fact existed as to whether the City engaged in an affirmative,
positive, aggressive act "in reconnecting City pipes to the Pipe after the City
admitted it did not have an easement and Ray told the City not to reconnect." Id.
We will discuss these holdings below.
I. The Sewer Project
At the court of appeals, there was some confusion as to the number of
stormwater pipes the City severed in order to get to the sewer line below. Ray argued
the City committed an affirmative, positive, aggressive act during the Sewer Project
when it "disconnected several pipes as part of a construction project on College
Avenue, including the pipe running beneath Ray's house," and later reconnected
those pipes over her objection. During oral argument before the court of appeals,
the City maintained that it severed only one of the three City pipes running into the
catch basin. The City mistakenly contended that the flow of water into the Pipe did
not cease during the Sewer Project because the other two City stormwater pipes
remained connected to the catch basin. The court of appeals held there was a genuine
issue of material fact as to which of the City's stormwater pipes "were damaged and
in need of repair." Id. The court of appeals also held there was a genuine issue of
material fact as to how many of the City's three stormwater pipes remained
connected to the catch basin during the Sewer Project. The court of appeals held
these two questions in turn created a genuine issue of material fact as to whether the
City committed an affirmative, positive, aggressive act when it reconnected its
pipe(s) to the catch basin.
The City now confirms that during the Sewer Project, it severed all three pipes
running into the catch basin. The City also acknowledges the flow of stormwater
from the catch basin through the Pipe ceased during the Sewer Project, and the City
acknowledges stormwater flow into the Pipe resumed when it reconnected its three
pipes to its catch basin. Since there is now no dispute all three City pipes were
severed and reconnected, the only question pertinent to our review of the grant of
summary judgment is whether there is a genuine issue of material fact as to whether
the City's reconnection of the City's three pipes to the catch basin—which allowed
water to resume flowing through the Pipe—constituted an affirmative, positive,
aggressive act by the City resulting in damage to the Property.
II. Affirmative, Positive, Aggressive Act
As noted above, a plaintiff in an inverse condemnation proceeding must prove
(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. Hawkins, 358 S.C. at 290, 594 S.E.2d at 562. In WRB, we noted that
to prevail in an inverse condemnation action, "a plaintiff must prove 'an affirmative,
aggressive, and positive act' by the government entity that caused the alleged damage
to the plaintiff's property." 369 S.C. at 32, 630 S.E.2d at 481 (quoting Berry's On
Main, Inc. v. City of Columbia, 277 S.C. 14, 16, 281 S.E.2d 796, 797 (1981); Kline
v. City of Columbia, 249 S.C. 532, 536, 155 S.E.2d 597, 599 (1967)). "Allegations
of mere failure to act are insufficient." Hawkins, 358 S.C. at 291, 594 S.E.2d at 563.
In Hawkins, the court of appeals discussed the affirmative, positive,
aggressive act requirement in detail. In that case, Hawkins brought an inverse
condemnation action against the City after his property was damaged by floodwater.
The lower court granted summary judgment to the City, and the court of appeals
affirmed, holding Hawkins "failed to allege any affirmative acts by the City which
damaged the . . . property or otherwise diminished his rights in the property." Id. at
291, 594 S.E.2d at 562. The court of appeals explained most of the acts Hawkins
alleged were mere "failures to act," such as his claim the City improperly allowed
the development of neighboring parcels without replacing drainage pipes in the area.
Id. at 291, 594 S.E.2d at 562-63. However, the court of appeals recognized Hawkins
alleged two affirmative acts as the basis for his inverse condemnation claim: the
City's replacement of a double-box culvert with a large arched pipe in a drainage
creek near his property, and the City's installation of riprap material along the banks
of the creek. Despite recognizing these two projects as "affirmative acts" rather than
mere failures to act, the court of appeals held neither act amounted to an affirmative,
positive, aggressive act because Hawkins failed to prove either act caused the
flooding on his property. Id. at 291, 594 S.E.2d at 563.
The City argues that under Hawkins, its refusal to comply with Ray's demand
that it not reconnect the three pipes to its catch basin in November 2012 was, as a
matter of law, merely a "failure to act," not an affirmative, positive, aggressive act.
We disagree. When the City reconnected its three pipes to the catch basin, it directed
water into the catch basin and through the Pipe. This is sufficient evidence to
overcome summary judgment on the issue of whether the City merely "failed to act"
with respect to the water flowing through the Pipe. We also conclude Ray has
presented sufficient evidence that the City's reconnection of its three pipes to the
catch basin and the resumption of the flow of water through the Pipe caused damage
to her property. See WRB Ltd. P'ship, 369 S.C. at 32, 630 S.E.2d at 481 (noting an
inverse condemnation plaintiff must prove the affirmative, positive, aggressive act
"caused the alleged damage to the plaintiff's property").4
Under the unique facts and procedural history of this case, this is where the
City's statute of limitations defense comes into play. While the City argued the
three-year statute of limitations in its brief to the court of appeals and in its petition
for rehearing, the court of appeals did not rule upon the issue. Ray does not dispute
she became aware she might have a claim against the City as early as 2008 when she
noticed her front porch steps were sagging. That year, she contacted the City, and
City employees told her of the Pipe running underground from College Avenue
toward those steps. Ray's right of action against the City for inverse condemnation
is limited to three years from the date she discovered, or by the exercise of reasonable
diligence should have discovered, she might have a claim against the City. See S.C.
Code Ann. § 15-3-530(3) (2005); 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.").
Ray did not commence this action until November 2012, so her claim for damages
occurring more than three years prior to that date is barred by the statute of
limitations. Ray conceded this point during oral argument before this Court. There
is also no evidence that any damage occurring during the three years before this
action was commenced was any greater than the damage that occurred before that
time. The twist in this case is that within days or a few weeks after Ray commenced
this action, the City severed its three stormwater pipes from the catch basin in front
of the Property as part of the Sewer Project, and at some point thereafter, reconnected
the pipes. Ray agrees that any claim for damages for inverse condemnation is limited
4
The City also argues the circuit court properly granted summary judgment because
there is no evidence the City installed the Pipe or originally caused stormwater to
flow under the Property via the Pipe. Though the City is correct no evidence in the
record suggests the City installed the Pipe, the City has been transporting water into
the Pipe via its stormwater pipes and catch basin beneath College Avenue for
decades.
to damage to the Property occurring as a result of the City's reconnection of its three
severed pipes to its catch basin.
The City argues Ray has not presented any evidence of damage to the Property
attributable to the City's November 2012 reconnection of the three pipes to the catch
basin. We disagree. Ray submitted the affidavit of Michael Leonard, a structural
engineer, in opposition to the City's motion for summary judgment. Attached as an
exhibit to Leonard's affidavit was a "supplemental report" Leonard prepared while
the Sewer Project was ongoing. In his supplemental report, Leonard opined there
would be increased water flow through the Pipe after the City reconnected its three
pipes to the catch basin, which Leonard claimed would create a risk of increased
structural damage to Ray's home. Viewed in the light most favorable to Ray,
Leonard's report creates a genuine issue of material fact as to whether the City's
reconnection of its pipes in November 2012 caused damage to the Property distinct
from the damage caused by the flow of water through the Pipe up until that time. Of
course, the circuit court will make the final determination whether Ray is able to
carry her burden of proof on this issue at trial.
Conclusion
We affirm the court of appeals as modified. We remand this matter to the
circuit court for a determination on the merits as to whether the City's reconnection
of its three stormwater pipes to the catch basin and the resumed flow of water
through the Pipe constituted an affirmative, positive, aggressive act causing damage
to the Property over and above any damage that had occurred before the three pipes
were severed and reconnected. Given the posture of this case and the above
discussion, Ray cannot recover for any damage to the Property caused by the flow
of water though the Pipe before the City reconnected its three pipes to the catch basin
in November 2012.
AFFIRMED AS MODIFIED.
BEATTY, C.J., KITTREDGE and HEARN, JJ., concur. FEW, J., dissenting
in a separate opinion.
JUSTICE FEW: I write separately to make two points. First, the City of Rock
Hill should not be piping storm water under the plaintiff's house. It is wrong.
It does not matter to me who built the pipe or whose fault it is the plaintiff's
house is sinking because of the water. The City should do the right thing and
fix this problem.
Second, not all wrongs are subject to redress in our civil courts. The plaintiff's
theory for inverse condemnation is the storm water running under her house
constitutes a taking. To the extent that theory is valid, the taking occurred
many years ago, either when the pipes were first installed or when the
deterioration of the pipes began to harm her property. Under no circumstances
did that taking occur later than 2008. As the majority concludes, therefore, the
plaintiff failed to bring her action within the applicable limitations period. It
makes no difference the City reconnected the pipes in 2012. The effect of that
act was to continue to run storm water under property the plaintiff claims had
already been taken. Whether it is correct to call this act "maintenance," as
Judge Short did at the court of appeals, does not matter. There is simply no
right of action available to this plaintiff under an inverse condemnation theory.
It is my opinion, therefore, the circuit court correctly dismissed the inverse
condemnation claim.