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2008-UP-327 - Parker v. Plexico

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

Jason H. Parker, Appellant,

v.

R. David Plexico, Ronald Plexico, and Karl Waschkolup are, Defendants,

Of Whom Ronald Plexico is, Respondent.


Appeal From York County
 S. Jackson Kimball, III, Special Circuit Court Judge


Unpublished Opinion No. 2008-UP-327
Submitted May 1, 2008 – Filed June 27, 2008   


AFFIRMED


Ivan N. Walters, of Rock Hill, for Appellant.

Joshua B. Vann, and Lucy L. McDow, both of Rock Hill, for Respondent.

PER CURIAM: In this trespass action, Jason Parker appeals the trial court’s grant of summary judgment in favor of Ronald Plexico.  Specifically, Parker argues the trial court erred in finding dams Plexico constructed were not a continuing trespass and Parker’s claim was barred by the statute of limitations.  We affirm.[1]

FACTS

Plexico owned property located on Lake Wylie. He observed stream drainage from the neighboring property entering his property.  Over time, the steam drainage caused his land to erode.  He received permission from the owner of the neighboring property to construct two retention ponds and dams (collectively, “the dams”), which were completed by 1990.  Ten years later, Plexico’s son, David, purchased the Lake Wylie property.

In June 2002, Parker acquired the neighboring property as co-tenant with his father.  Parker later acquired his father’s interest and began developing the property.  Parker attempted to obtain permits but halted development because of conflicting positions regarding the dams taken by the Army Corps of Engineers, York County, and Duke Energy Corporation.  Consequently, Parker brought an action against Plexico seeking damages for civil conspiracy and a continuing trespass caused by the dam construction.  In response, Plexico filed a motion for summary judgment asserting: (1) Parker has no claim for trespass because he did not own the property at the time the dams were constructed; (2) Parker is barred from proceeding on his claim under the statute of limitations; and (3) Parker has no evidence of a civil conspiracy to prevent the removal of the dams on his property.

The trial court granted Plexico’s motion, finding the dams “constitute a permanent, one-time alteration of the property, and any injury in regard to them occurred at the time they were constructed.”  The trial court also found Plexico could not have had intent to harm or damage Parker when the dams were constructed because Parker did not own the property at that time.  Further, the trial court concluded Parker’s claim was barred by the statute of limitations.  Thereafter, Parker filed a motion to alter or amend judgment, which the trial court denied.  This appeal followed.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law.  Rule 56(c), SCRCP; Hurst v. E. Coast Hockey League, Inc., 371 S.C. 33, 36, 637 S.E.2d 560, 561 (2006).  On appeal from a grant of summary judgment, the appellate court applies the same standard governing the trial court.  Id.  In determining whether any triable issues of fact exist, the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non-moving party.  Law v. S.C. Dep’t of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006).  “A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner.”  David v. McLeod Reg’l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006).

LAW/ANALYSIS

I.  Continuing Trespass

Parker contends the trial court erred in finding the dams constructed by Plexico were not a continuing trespass.[2]  We disagree.

Trespass is defined as “any intentional invasion of the plaintiff’s interest in the exclusive possession of his property.”  Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 357, 559 S.E.2d 327, 337 (Ct. App. 2001).  Thus, actual or constructive possession by the plaintiff at the time of the trespass is a necessary element to maintain an action for trespass.  Daniels v. Coleman, 253 S.C. 218, 229, 169 S.E.2d 593, 598 (1969).  Accordingly, a purchaser who acquires title after the act of trespass has no action for trespass, unless his title is retrospective in nature and dates back to the time of the trespass.  75 Am. Jur. 2d Trespass § 29 (2007).  However, an exception exists when a trespass is continuing and has not ceased by the time the purchaser acquires title to the property.  Id.

A continuing trespass is intermittent or periodical and occurs so often it is said to be continuing, although it is not necessarily constant or unceasing.  Silvester v. Spring Valley Country Club, 344 S.C. 280, 286, 543 S.E.2d 563, 566 (Ct. App. 2001).  Typically, a trespass is continuing if abatement is reasonably and practically possible.  Id. at 287, 543 S.E.2d at 567.  On the contrary, a permanent trespass “may be expected to continue but is presumed to continue permanently, with no possibility of abatement.”  Id. at 286, 543 S.E.2d at 566-67.  When a permanent trespass has occurred, the injury is fixed and goes to the whole value of the land.  Id., 543 S.E.2d at 567. 

In the present case, Parker misconstrues the nature of the dams constructed by Plexico as a continuing trespass.  Even assuming the dams were wrongfully constructed, the dams represent the damage caused by the trespass, not the trespass itself.[3]  As noted by the trial court, “The dams are not a continuing inference with Parker’s possession; they represent damage to the land of which he now has undisputed exclusive possession.”  Furthermore, removal of the dams would not abate any repeated intrusion upon Parker’s property; rather, removal would simply eliminate the offending condition.[4]  Because the record reflects no new occurrence of injury after Parker’s purchase of the property, Plexico did not commit a continuing trespass.  Accordingly, the trial court did not err in refusing to submit Parker’s continuing trespass cause of action to the jury. 

II.  Statute of Limitations

Parker further maintains the trial court erred in finding his claim was barred by the statute of limitations.  We disagree.

In order to attack Plexico’s statute of limitations defense, Parker seeks to characterize his property damage claim as a continuing trespass.  When a trespass “is permanent and only one cause of action may be brought for damages, the statute of limitations bars the action if it is not brought within the statutory period after the first actionable injury.”  Hedgepath, 348 S.C. at 357, 559 S.E.2d at 337.  However, when the trespass is characterized as continuing, “the expiration of the limitations period after the first actionable injury does not effect a complete bar as each new injury gives rise to a new cause of action and a landowner may at any time recover for an injury to his land which occurred within the statutory period.”  Id. at 358, 559 S.E.2d at 337.

As previously noted, we find the dams constitute a permanent trespass as opposed to a continuing trespass.  Indeed, Parker’s claim is premised entirely on the construction of the dams and not any continued operation, use, or recurring activity by Plexico.  Thus, under settled precedent, the statute of limitations has run as to the trespass of which the dams are a remaining condition.  See S.C. Code Ann. § 15-3-530(3) (2005) (requiring a plaintiff bringing a cause of action for trespass to file suit within three years from when the cause of action arose).  Therefore, the trial court did not err in granting summary judgment to Plexico under the statute of limitations.

CONCLUSION

Based on the foregoing, we find the trial court did not err in granting Plexico’s motion for summary judgment.  Accordingly, the decision of the trial court is

AFFIRMED.

HEARN, C.J., and SHORT and KONDUROS, JJ., concur.


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

[2] Parker asserts the trial court improperly relied on nuisance and inverse condemnation jurisprudence in deciding if the dams were a permanent or continuing trespass.  This court has previously utilized these types of cases in analyzing continuing trespass situations. See Knight v. Waggoner, 359 S.C. 492, 496, 597 S.E.2d 894, 896 (Ct. App. 2004); Whitfield Constr. Co. v. Bank of Tokyo Trust Co., 338 S.C. 207, 218, 525 S.E.2d 888, 894 (Ct. App. 1999).  Accordingly, we find no error in the trial court’s reliance.

[3] Contrary to Parker’s contention, the record does not demonstrate an unauthorized entry upon his property; the only evidence indicates the previous landowner authorized Plexico’s entry onto Parker’s property.

[4] Parker argues this court should treat the abatability of the dams as a factual issue and remand for a jury determination of whether the dams are removable.  However, because Parker failed to raise this argument to the trial court, it is not preserved for our review.  See In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”).