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2007-MO-058 - Lucas v. Rawl Family Limited Partnership

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Jimmy Dale Lucas and Brenda Gail Blackstone, as Personal Representatives of the Estate of Franklin D. Lucas, Respondents,

v.

Rawl Family Limited Partnership, and Wayne P. Rawl, Howard N. Rawl, and Mary R. Wingard, Petitioners.


ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS


Appeal From Lexington County
 Clyde N. Davis, Jr., Special Circuit Court Judge


Memorandum Opinion No.  2007-MO-058
Submitted September 18, 2007 – Filed September 24, 2007


REVERSED IN PART; AFFIRMED IN PART


Robert J. Thomas, Rogers Townsend & Thomas, PC, of Columbia, for Petitioners.

Joseph M. Epting, Epting & Gillis, LLC, of Columbia; and Katherine Carruth Link, of West Columbia, for Respondents.


PER CURIAM:            Petitioners have filed a petition for a writ of certiorari to review an order of the Court of Appeals dismissing their appeal.  We grant the petition, dispense with further briefing, reverse in part, and affirm the trial judge’s order. 

FACTS

In the instant action, respondents alleged petitioners created a nuisance after petitioners clear-cut a portion of their land, causing flooding on respondents’ land.  After the parties made cross-motions for summary judgment, the trial judge denied petitioners’ motion for summary judgment, and granted respondents’ motion for partial summary judgment.  In granting respondents’ motion for partial summary judgment, the trial judge ruled petitioners were bound by this Court’s ruling in Lucas v. Rawl Family Ltd. Partn., 359 S.C. 505, 598 S.E.2d 712 (2004) (hereinafter “Lucas I”), wherein the Court held the circuit court correctly denied petitioners’ directed verdict motion because there existed a jury question as to whether petitioners’ actions constituted a nuisance per se and were dangerous to respondents’ property at all times because of the continuing nature of the nuisance.

The trial judge found petitioners were bound by the determination in Lucas I that they created a nuisance per se by altering the flow of surface water, and were precluded from relitigating that issue in the instant trial.  However, the trial judge found the question of whether the nuisance per se caused the flooding and the resulting damage to respondents’ land had not been decided and was an issue for the finder of fact. 

Petitioners appealed both the denial of their motion for summary judgment and the grant of partial summary judgment in favor of respondents.  Petitioners presented two questions in their initial brief to the Court of Appeals.  In Issue 1, petitioners essentially argued the trial judge erred in denying their motion for summary judgment based on the statute of limitations.  In Issue 2, petitioners maintained the trial judge erred in granting respondents’ motion for partial summary judgment by finding petitioners altered the direction of surface water, rather than merely the amount of surface water. 

After petitioners filed their initial brief and designation of matter, respondents moved to dismiss the appeal as interlocutory and not immediately appealable.  As to the appeal of the trial judge’s order denying summary judgment, the Court of Appeals held an order denying summary judgment is not appealable.  As to the appeal of the order granting respondents’ motion for partial summary judgment, the Court of Appeals held the trial judge properly found petitioners are bound by the determination in Lucas I that they created a nuisance per se and are precluded from relitigating the issue.  The Court of Appeals granted respondents’ motion to dismiss the appeal of the trial judge’s order granting partial summary judgment without prejudice to petitioners’ right to refile their notice of appeal after a final judgment.  Petitioners’ petition for rehearing was denied.     

DISCUSSION

Petitioners now argue the Court of Appeals erred in dismissing their appeal as interlocutory and not immediately appealable. 

First, we agree with the Court of Appeals’ dismissal as to Issue 1 because the portion of the trial judge’s order denying summary judgment was not appealable.  As noted by this Court in Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 167-68, 580 S.E.2d 440, 443-44 (2003), an order denying a motion for summary judgment is never appealable because such an order is not a ruling on the merits of the action.  Petitioners may raise the issue later in the proceedings in a motion to reconsider the summary judgment motion or by a motion for a directed verdict.  Ballenger v. Bowen, 313 S.C. 476, 476-78, 443 S.E.2d 379, 380 (1994); Brown v. Pearson, 326 S.C. 409, 416-17, 483 S.E.2d 477, 481 (Ct. App. 1997). 

With regard to Issue 2, the Court of Appeals merely stated it agreed with the trial judge’s ruling that petitioners are bound by the determination in Lucas I that they created a nuisance per se, but failed to address whether an order granting a motion for partial summary judgment is immediately appealable.  An order granting a motion for partial summary judgment is immediately appealable.  See S.C. Code Ann. § 14-3-330 (1976); Nauful v. Milligan, 258 S.C. 139, 143, 187 S.E.2d 511, 513 (1972).  Accordingly, the Court of Appeals erred in dismissing the appeal without addressing the merits of Issue 2.    

As to the merits of Issue 2, petitioners argued the trial judge erred in finding the jury in Lucas I determined petitioners’ actions altered the direction of surface water.  Instead, petitioners argued their actions merely increased the amount of surface water.  Petitioners made the same argument in their Rule 59(e), SCRCP, motion to alter or amend, wherein they stated the “only thing determined by the jury’s verdict, as reinstated by the Supreme Court’s decision, was that [petitioners] had created a nuisance per se when they cleared 40 acres of timber.” 

However, the trial judge did not find petitioners altered the direction of the flow of surface water.  He simply found petitioners had created a nuisance per se by clear-cutting the land adjacent to respondents’ property and altering the flow of surface water onto respondents’ land, which is precisely the holding in Lucas ILucas v. Rawl, id. at 509, 598 S.E.2d at 714 (holding the common enemy rule is subject to a nuisance exception, whereby “an individual may not obstruct or alter the flow of surface water to create a nuisance per se”) (emphasis added).  Accordingly, petitioners’ contention the trial judge erred in finding petitioners altered the direction of surface water in his order granting respondents’ motion for partial summary judgment is simply incorrect.    

CONCLUSION

We reverse that portion of the Court of Appeals’ order dismissing the appeal of the grant of partial summary judgment.  In lieu of remanding to the Court of Appeals for consideration of the merits of petitioners’ argument, in the interest of judicial economy, we have reviewed Issue 2 in petitioners’ initial brief and we affirm the trial judge’s findings.  This matter shall be remanded to the circuit court for further proceedings consistent with this opinion.

REVERSED IN PART; AFFIRMED IN PART.    

TOAL, C.J., MOORE, WALLER and PLEICONES, JJ., concur. BEATTY, J., not participating.