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2007-UP-151 - Lamar Florida v. Li’l Cricket

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 Court of Appeals


Lamar Florida, Inc., successor in interest to Lamar Advertising of Mobile, Inc., d/b/a Lamar Advertising of Columbia, Appellant,

v.

Li’l Cricket, LLC, Respondent.


Appeal From Richland County
 Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No. 2007-UP-151
Submitted April 2, 2007 – Filed April 4, 2007
Withdrawn, Substituted and Refiled July 2, 2007  


AFFIRMED


Joseph Gregory Studemeyer, of Columbia, for Appellant.

Edward D. Barnhill, Jr. and Zoe Sanders Nettles, of Columbia, for Respondent.

PER CURIAM:  Lamar Florida, Inc. appeals the trial court’s grant of summary judgment against Lamar’s claim that Li’l Cricket, L.L.C. trespassed on its real property by removing Lamar’s billboard from property leased to Lamar but owned by Li’l Cricket.  Lamar argues its failure to pay rent did not deprive Lamar of exclusive possession of the land and its failure to record the lease did not prevent Li’l Cricket from having notice of Lamar’s interest.  We affirm.[1]

I.

On September 29, 1995, Alvin Miller leased property in Columbia (“the property”) to Outdoor East, predecessor in interest to Lamar, for a period of 5 years for $700 per year.  The property was the size necessary to support a billboard, and the lease was entered for the purpose of construction and maintenance of a billboard by Outdoor East.  The lease agreement does not contain a provision regarding failure to pay rent.  As admitted by Lamar, the lease was never recorded. 

On December 11, 1996, Lamar purchased the billboard and the lease interest in the property from Outdoor East.  In early 1997, Lamar placed nameplates on the billboard.  Alvin Miller sold the property to John Miller.  On November 21, 1997, Li’l Cricket purchased the property from John Miller. 

Lamar never paid rent to Li’l Cricket for the property.  In a letter sent via fax to Lamar’s attorney on or about August 19, 1999, Li’l Cricket instructed Lamar to remove the billboard.  Li’l Cricket sent another letter to Lamar dated August 24, 1999 insisting Lamar remove the billboard by August 31, 1999.  On or about August 24, 1999, the Jones Sign Company attempted to remove the billboard per Li’l Cricket’s request.  Lamar prevented the Jones Sign Company from fully removing the billboard.  In a letter dated August 26, 1999, Lamar responded to Li’l Cricket’s action and argued it had a valid lease.  Lamar attached the lease to the letter.  Lamar also sent two letters dated September 1, 1999 and September 3, 1999 stating Lamar has a valid lease and Columbia regulations allow Li’l Cricket to erect its own sign without removing Lamar’s billboard. 

In a letter dated September 3, 1999, Li’l Cricket provided second notice to Lamar that the billboard must be removed immediately.  On or about October 1, 1999, Li’l Cricket wrote the Jones Sign Company instructing them to take down the billboard.  The Jones Sign Company took down the billboard.

Lamar brought suit against Li’l Cricket claiming breach of contract, conversion, and a violation of the Unfair Trade Practices Act (UTPA).  The trial court granted summary judgment on the claims for conversion and a violation of UTPA, which was affirmed by this court and Lamar’s petition for certiorari was denied on September 9, 2004.[2]  

Lamar moved to amend its complaint to include claims against Li’l Cricket for trespass to real property and trespass to personal property.  The trial court first denied Lamar’s motion, but the trial court later granted Lamar’s motion to alter or amend, thereby allowing Lamar to amend its complaint to include claims for trespass to real and personal property.  Subsequently, the trial court granted Li’l Cricket’s motion for summary judgment regarding Lamar’s claim for trespass to real property.  This appeal followed.

II.

“An appellate court reviews the grant of summary judgment under the same standard applied by the trial court.”  Houck v. State Farm Fire & Cas. Ins. Co., 366 S.C. 7, 11, 620 S.E.2d 326, 329 (2005).  Summary judgment is only appropriate when clearly no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.  Rule 56(c), SCRCP; Cafe Assocs., Ltd. v. Gerngross, 305 S.C. 6, 9, 406 S.E.2d 162, 164 (1991).  However, summary judgment is not appropriate if further inquiry into the case’s facts is desirable for the application of the law.  Brockbank v. Best Capital Corp., 341 S.C. 372, 378, 534 S.E.2d 688, 692 (2000).  Conversely, “when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted.”  Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 355, 559 S.E.2d 327, 336 (Ct. App. 2001).

III.

A. Trespass

Lamar argues the trial court erred by granting summary judgment to Li’l Cricket on Lamar’s claim for trespass to real property after the trial court found Lamar’s claim lacked two key elements: Li’l Cricket’s intentional invasion and Lamar’s exclusive possession.  We disagree.

“[T]respass is any intentional invasion of the plaintiff’s interest in the exclusive possession of his property . . . .”  Hawkins v. City of Greenville, 358 S.C. 280, 296, 594 S.E.2d 557, 565 (Ct. App. 2004) (quoting Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 356, 559 S.E.2d 327, 337 (Ct. App. 2001)).  The trial court held summary judgment for trespass to real property was appropriate because the unrecorded lease provided no notice preventing Li’l Cricket from intentionally invading the property and Lamar’s failure to pay rent prohibited Lamar from having exclusive possession of the property. 

1.      Intentional Invasion

Lamar contends the trial court erred by holding Li’l Cricket did not intentionally invade Lamar’s interest because Li’l Cricket lacked notice of the lease agreement between Outdoor East and Miller, Lamar and Li’l Cricket’s predecessors of title.  We disagree.

Section 30-7-10 of the South Carolina Code (2007) requires leases for more than twelve months to be recorded in order to affect the rights of subsequent purchasers without notice.  Additionally, section 30-7-90 of the South Carolina Code (2007) provides:

No possession of real property described in any instrument of writing required by law to be recorded shall operate as notice of such instrument. Actual notice shall be deemed and held sufficient to supply the place of registration only when such notice is of the instrument itself or of its nature and purport.

The lease, originally between Outdoor East and Miller, was for five years.  Lamar admits the lease was never recorded.  Further, possession of the property and Lamar’s use of name plates on the billboard did not qualify as actual notice under section 30-7-90.  Thus, Li’l Cricket did not have notice of Lamar’s interest and accordingly, Li’l Cricket could not intentionally invade Lamar’s interest. 

2. Exclusive Possession

Lamar argues the trial court erred in granting summary judgment to Li’l Cricket for Lamar’s claim of trespass to real property because Lamar lacked exclusive possession of the property.  We disagree.

Exclusive possession is defined as “the exercise of exclusive dominion over property, including the use and benefit of the property.”  Black’s Law Dictionary 1184 (7th ed. 1999).  Section 27-35-140 of the South Carolina Code (2007) states, “[f]ailure to pay the rent agreed upon when due, or a reasonable rent for use and occupation when demanded, shall terminate all tenancies for a term, for years, from month to month and at will and the tenant shall forthwith vacate the premises without notice.”  We know of no reason, and Appellant cites none, why this statutory provision does not control the disposition of this case, particularly because the lease is silent on the consequences of a failure to pay rent.

Appellant points to Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994), and Litchfield Co. of South Carolina, Inc. v. Kiriakides, 290 S.C. 220, 349 S.E.2d 344 (Ct. App. 1986), to argue failure to pay rent does not automatically result in the termination of a lease.  However, Kiriakides prevents forfeiture by landlords for trivial breaches.  312 S.C. at 275-76, 349 S.E.2d at 366.  This case is easily distinguishable because the complete failure to pay rent under the circumstances presented is not a trivial breach.  Litchfield is also distinguishable.  In Litchfield, the method of terminating the tenancy was clearly set forth by the lease.  290 S.C. at 225-26, 349 S.E.2d at 347-48.  In the case before us, as previously noted, the lease does not contain a provision regarding the failure to pay rent.

The lease agreement requires payment of $700 annually.  Lamar admitted it did not make any rental payments to Li’l Cricket.  Li’l Cricket purchased the property on November 21, 1997.  The billboard was taken down around October 1, 1999.  Lamar argues only one rent payment was missed over the time period.  The evidence provided at trial, however, shows Li’l Cricket owned the property for almost two years without receiving any payment from Lamar.  Therefore, Lamar’s breach of the lease agreement was material as a matter of law, and it surrendered its exclusive possession of the property.  Accordingly, Li’l Cricket did not trespass on Lamar’s real property because Lamar did not have exclusive possession of the property.

B. Prior Opinion by Court of Appeals

Lamar argues the trial court erred in relying on an unpublished opinion of this court related to additional causes of action brought by Lamar against Li’l Cricket arising from the same facts.  While there may be merit to this argument, we find that any error was harmless because the trial court’s reliance on these statements was inconsequential.

“An error not shown to be prejudicial does not constitute grounds for reversal.”  Brown v. Pearson, 326 S.C. 409, 417, 483 S.E.2d 477, 481 (Ct. App. 1997).  “An error is not reversible unless it is material and prejudicial to the substantial rights of the appellant.”  Visual Graphics Leasing Corp., Inc. v. Lucia, 311 S.C. 484, 489, 429 S.E.2d 839, 841 (Ct. App. 1993). 

In its order, the trial court stated:

The record reflects that Li’l Cricket had neither actual notice of the instrument itself nor of its nature and purport.  The Court of Appeal’s decision affirming summary judgment as to conversion provided: “[W]hen Li’l Cricket purchased the property, it lacked knowledge of the lease between Lamar and Al Miller.  At no time did Li’l Cricket receive rent for the sign.  Lamar Adver. of Mobile, Inc. d/b/a Lamar Adver. of Columbia v. Li’l Cricket LLC, Ct. App. Op. 2003-UP-483.  The Court of Appeals further stated [t]he lease was never recorded.”  Id.  Additionally, the deposition testimony of Al Miller, the owner of the property from whom Li’l Cricket purchased the property and the person with whom Lamar had the alleged lease, shows Li’l Cricket had no notice of the lease when it purchased the property.

Though the trial court did reference this court’s prior unpublished opinion, the record otherwise provides an ample basis to support the finding that Li’l Cricket lacked knowledge of the lease between Lamar and Al Miller.  Thus, any error was harmless error.

IV.

The entry of summary judgment in favor of Li’l Cricket is

AFFIRMED.

ANDERSON, KITTREDGE, and SHORT, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] See Lamar Adver. v. Li’l Cricket, LLC, Op. No. 2003-UP-483 (S.C. Ct. App. filed Aug. 20, 2003).