          THE STATE OF SOUTH CAROLINA
              In The Court of Appeals

Lucille H. Ray, Appellant,

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 Respondent.

Appellate Case No. 2016-002118


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


                     Opinion No. 5684
      Heard April 1, 2019 – Filed September 11, 2019


AFFIRMED IN PART, REVERSED IN PART, AND
              REMANDED


Richard B. Fennell, of James, McElroy & Diehl, P.A., of
Charlotte, NC, and Charles S. Bradford, of Charles S.
Bradford, P.A., of York, for Appellant.

W. Mark White and Jeremy D. Melville, both of Spencer
& Spencer, P.A., of Rock Hill, for Respondent.
LOCKEMY, C.J.: In this action, Lucille Ray asserts the special circuit court
judge erred in granting summary judgment to the City of Rock Hill (the City) as to
her claims for inverse condemnation and injunctive relief. In addition, Ray argues
the circuit court erred in (1) excluding witness testimony regarding abatability, and
(2) granting a directed verdict to the City as to her claim for trespass. We affirm in
part, reverse in part, and remand to the circuit court.

FACTS

Ray's claims against the City in this action relate to a 24-inch storm water pipe (the
Pipe) located under her property at 330 College Avenue (the Property) in the City.
The Pipe begins at a City maintained catch basin on College Avenue in front of the
Property and channels storm water underneath Ray's home and through the
Property. The Property and the Pipe are located at the topographical low point of a
watershed comprising approximately 29 acres.

Ray's predecessors-in-title constructed a home on the Property in the 1920's. The
Pipe was installed on the Property prior to the construction of the home. The
record contains no evidence of who originally installed the Pipe, who owns the
Pipe, or the existence of any easement for piping water across the Property. The
record reveals one of Ray's predecessors-in-title was aware of the Pipe and
connected a drainage pipe into the Pipe.

Ray acquired the Property in May 1985 and acknowledges a history of sinkholes
and cave-ins on the Property since the time of her acquisition. In 1992, Ray
observed as her gardener fell waist deep into a sinkhole behind her home. Ray was
also aware of bending and movement in the roof frame of the home in 1995 and
again in 2007. By 2008, Ray was aware of the existence of the Pipe and was
concerned that water leaking from the Pipe might be damaging her home. Ray
noticed the front steps of her home appeared to be sinking and requested the City
investigate the Pipe. In 2008, City employees came to the Property at least twice
and informed Ray that a storm water pipe "ran toward the steps" of Ray's house.

On November 6, 2012, Ray filed suit against the City and the South Carolina
Department of Transportation (SCDOT). In her complaint, Ray asserted causes of
action for trespass and inverse condemnation; she also sought injunctive relief and
attorney's fees. Ray claimed her home incurred structural damage due to
foundation movement as a result of water leaking from the Pipe.
On March 24, 2014, SCDOT filed a motion for summary judgment on each of
Ray's claims. The circuit court granted the motion and all causes of action asserted
against SCDOT were dismissed.

On May 19, 2014, the City filed a motion for summary judgment. Following a
hearing, the special circuit court judge granted the City partial summary judgment,
dismissing Ray's claims for inverse condemnation, injunctive relief, and attorney's
fees. The judge further held the collection and discharge of water under Ray's
home may be considered an affirmative, intentional act, thus leaving a genuine
issue for trial as to Ray's trespass claim. The judge ruled the statute of limitations
began to run on Ray's trespass claim no later than 2008. However, the judge found
a genuine issue of fact existed as to whether the asserted trespass in this case was
abatable. The judge noted that, pursuant to case law, where the offending conduct
is abatable, the statute of limitations begins to run with each new invasion of a
plaintiff's property. Therefore, since abatability is an issue of fact, the judge found
Ray's remaining claim for trespass survived as to each new invasion for the three
years prior to November 6, 2009. The City's and Ray's subsequent motions to
reconsider were denied.

On September 12, 2016, the first day of trial, the City moved to exclude certain
testimony, including opinions expected to be offered by Michael Leonard, a
structural engineer and Ray's expert witness. In deposition testimony, Leonard
opined that the structural damage to Ray's home was partially the result of the
leaking Pipe. Leonard further testified that to render a qualified opinion on the
abatability of the flow of water to and through the Pipe would require a thorough
engineering study. Leonard testified he had not performed a hydrology study or
studied the flow of water to or through the Pipe. Leonard testified he was unable
to testify to a reasonable degree of engineering certainty that the flow of water
could be reasonably routed around the Property.

The circuit court granted the City's motion, excluding Leonard's opinion testimony
regarding the issue of the abatability of the alleged trespass. Thereafter, Ray
acknowledged she could not meet her burden of proof in light of the court's ruling
and stated "it would be appropriate to enter judgment against me." In a subsequent
order, the circuit court held that given the special circuit court judge's prior ruling
on summary judgment, only an abatable trespass remained as a viable cause of
action. The court explained that because it had excluded Leonard's opinion
testimony as unreliable concerning abatement, Ray's trespass cause of action was
unviable. With no genuine issue of material fact remaining, the court found the
City was entitled to judgment as a matter of law. This appeal followed.
LAW/ANALYSIS

I.     Summary Judgment

Ray argues the special circuit court judge erred in granting summary judgment as
to her claims for inverse condemnation and injunctive relief.

"An appellate court reviews a grant of summary judgment under the same standard
applied by the [circuit] 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 . . . no genuine issue [exists] 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 for summary judgment purposes, the
evidence and all the inferences [that] can be reasonably drawn from the evidence
must be viewed in the light most favorable to the nonmoving party. . . [who] is
only required to submit a mere scintilla of evidence in order to withstand a motion
for summary judgment." Hancock v. Mid-S. Mgmt., 381 S.C. 326, 329-31, 673
S.E.2d 801, 802-03 (2009).

     A. Inverse Condemnation

"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 prove 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 a public use; and (4) the taking has some degree of
permanence." 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).

The special circuit court judge determined Ray's claim that the City collected water
into its storm water drainage system and channeled it under her home did not
support her claim of inverse condemnation. The judge found no positive,
aggressive acts were committed by the City. The judge noted Ray did not allege
the construction of any new improvements causing water to flow through the Pipe
under her Property, and Ray failed to cite any case law which would categorize
maintenance of the storm water drainage system as a positive, aggressive act.
Ray contends the City's maintenance in November 2012 of drainage pipes situated
under College Avenue in front of her Property constituted an affirmative act
sufficient to give rise to a claim for inverse condemnation. She maintains the City,
after repairing several broken pipes under College Avenue, reconnected the subject
Pipe to the City's storm water drainage system against her wishes.1 Ray asserts the
City undertook a permanent public project to modernize its infrastructure along
College Avenue, and, as a result, it took positive steps to direct its storm water
system flow directly under her home.

The City asserts there is no evidence it installed or owned the subject Pipe or that
any new construction or improvements upstream from the Pipe resulted in an
increase in the amount or flow rate of water toward Ray's Property. The City
contends its maintenance of the pipes under College Avenue in November 2012
was not to the subject Pipe or to a pipe directly connected to the Pipe. The City
argues summary judgment was proper because Ray was unable to produce any
evidence to attribute the flow of water through the Pipe to any action by the City.

Although the City asserts its repair work in 2012 only involved one pipe and did
not affect the subject Pipe, we believe questions of fact exist as to which pipes
were damaged and in need of repair. On November 13, 2012, Ray's attorney
advised the City that three large pipes in front of Ray's Property were damaged
during the City's work on College Avenue and specifically advised the City that
Ray did not consent to the reconnection of the Pipe to any of the replacement
pipes. Ray submitted photographs of the damaged pipes in front of her home into
evidence. These photos appear to show three large severed pipes and the City's
subsequent work to reconnect the pipes and resume the flow of storm water.

This court addressed inverse condemnation and municipal drainage systems in
Hawkins v. City of Greenville. Hawkins filed suit against the City of Greenville
asserting a cause of action for inverse condemnation and alleging the City's neglect
in designing and maintaining its stormwater drainage system led to flooding which
damaged his property. Hawkins, 358 S.C. at 285-86, 594 S.E.2d at 560. This court
found Hawkins failed to allege any affirmative, positive, and aggressive acts by the
City which damaged his property. Id. at 291, 594 S.E.2d at 562. Specifically, the
court found: (1) the acts Hawkins alleged were merely failures to act; and (2) the
only affirmative act Hawkins cited as a basis for his inverse condemnation claim

1
  On November 13, 2012, Ray's attorney sent a letter to the City instructing them not
to reconnect the City's storm water drainage system to the Pipe.
was the replacement of a culvert and the installation of material around a nearby
creek. Id. at 291, 594 S.E.2d at 562-63. The court held there was no evidence in
the record that either of these acts caused the flooding on Hawkins's property. Id.
at 291, 594 S.E.2d at 563.

We note that while the dissent in the present case finds Hawkins controlling, we
believe Hawkins is distinguishable from the present case. Here, we find a genuine
issue of material fact exists as to whether the City engaged in an affirmative,
positive, and 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.
Accordingly, we reverse the special circuit court judge's grant of summary
judgment as to Ray's inverse condemnation claim.

   B. Injunctive Relief

"Actions for injunctive relief are equitable in nature." Denman v. City of
Columbia, 387 S.C. 131, 140, 691 S.E.2d 465, 470 (2010). "In equitable actions,
an appellate court may review the record and make findings of fact in accordance
with its own view of the preponderance of the evidence." Id. "To obtain an
injunction, a party must demonstrate irreparable harm, a likelihood of success on
the merits, and the absence of an adequate remedy at law." Id. "An injunction is a
drastic remedy issued by the court in its discretion to prevent irreparable harm
suffered by the plaintiff." Scratch Golf Co. v. Dunes W. Residential Golf
Properties, Inc., 361 S.C. 117, 121, 603 S.E.2d 905, 907 (2004).

The special circuit court judge found Ray's claim for injunctive relief failed as a
matter of law because her trespass claim provided an adequate remedy at law. The
judge noted Ray "could be made whole by a damage award on the trespass claim."

Ray argues the City's trespass on the Property is continuing in nature as it recurs
with each rainfall. She contends the judge's finding that a genuine issue of fact
existed as to whether the trespass was abatable was inconsistent with its grant of
summary judgment to the City as to her claim for injunctive relief. Ray asserts that
repairing the damage caused by the flow of water through the Pipe beneath her
home, while permitting the City to continue channeling water through the Pipe,
guarantees further damage and litigation between the parties.

We agree with Ray that an injunction is the proper remedy for a continuing
trespass. See Mack v. Edens, 306 S.C. 433, 437, 412 S.E.2d 431, 434 (Ct. App.
1991) ("Injunction is a proper remedy for a continuous trespass to land. Because
of the permanent and recurring nature of the injury, which cannot otherwise be
prevented, the courts should enjoin the continuous trespasser to protect the
landowner's property rights from hurt or destruction."). However, as discussed
below, we believe the circuit court properly granted a directed verdict in favor of
the City as to Ray's trespass claim. Therefore, our finding below is dispositive of
Ray's argument that the special circuit court judge erred in granting summary
judgment as to her claim for injunctive relief for trespass.

II.   Exclusion of Expert Testimony

Ray argues the circuit court erred in granting the City's motion to exclude
Leonard's expert testimony. We disagree.

"If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise." Rule 702, SCRE.

"Qualification of an expert and the admission or exclusion of his testimony is a
matter within the sound discretion of the [circuit] court." Fields v. Reg'l Med. Ctr.
Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506, 509 (2005). "[T]he trial court's
decision [to admit or exclude expert testimony] will not be disturbed on appeal
absent an abuse of discretion." Id. "An abuse of discretion occurs when the ruling
is based on an error of law or a factual conclusion that is without evidentiary
support." Id. at 26, 609 S.E.2d at 509. "A trial court's ruling on the admissibility
of an expert's testimony constitutes an abuse of discretion when the ruling is
manifestly arbitrary, unreasonable, or unfair." Id. "To warrant reversal based on
the admission or exclusion of evidence, the appellant must prove both the error of
the ruling and the resulting prejudice, i.e., that there is a reasonable probability the
jury's verdict was influenced by the challenged evidence or the lack thereof." Id.

"The trial court serves as the gatekeeper in the admission of all evidence presented
at trial . . . ." Watson v. Ford Motor Co., 389 S.C. 434, 456, 699 S.E.2d 169, 180
(2010). "In determining whether to admit expert testimony, the court must make
three inquiries." Graves v. CAS Med. Sys., Inc., 401 S.C. 63, 74, 735 S.E.2d 650,
655 (2012). "First, the [circuit] court must determine whether the subject matter is
beyond the ordinary knowledge of the jury, thus requiring an expert to explain the
matter to the jury." Watson, 389 S.C. at 446, 699 S.E.2d at 175. Second, the
expert must have "acquired the requisite knowledge and skill to qualify as an
expert in the particular subject matter," although he "need not be a specialist in the
particular branch of the field." Id. Finally, the substance of the testimony must be
reliable. Id. It is this final requirement of reliability which is the central feature of
the inquiry. State v. White, 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009).

In analyzing the reliability of proposed expert testimony the court must consider
the following factors: "(1) the publications and peer review of the technique; (2)
prior application of the method to the type of evidence involved in the case; (3) the
quality control procedures used to ensure reliability; and (4) the consistency of the
method with recognized scientific laws and procedures." Graves, 401 S.C. at 74,
735 S.E.2d at 655 (quoting State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517
(1999)).

The circuit court ruled Ray may be able to establish a claim for continuing trespass
to the extent she could show intentional collection and discharge of water under
her home causing damage within the three-year limitations period. The central
issue in distinguishing a continuing trespass from a permanent trespass is whether
abatement of the trespass is reasonably and practically possible.
Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 357, 559 S.E.2d 327, 337 (Ct.
App. 2001). Thus, a material issue of fact with respect to Ray's claim for
continuing trespass is whether the alleged trespass is abatable.

Prior to trial, the City moved to exclude Leonard's expert testimony on the grounds
that it was unreliable. The circuit court granted the motion with respect to the
issue of whether the City's alleged trespass was abatable because Leonard "had not
done any engineering work on this issue, and it would not meet [the] criteria of
being reliable or assist[ing] the jury." As the court noted in its subsequent order,
given the prior ruling on summary judgment, only an abatable trespass remained as
a viable cause of action. The court explained that because it had excluded
Leonard's opinion testimony as unreliable concerning abatement, Ray's trespass
cause of action was unviable.

We find the trial court did not abuse its discretion in granting the City's motion to
exclude Leonard's testimony. Leonard testified that to render a qualified opinion
on the abatability of the flow of water to and through the Pipe would require a
thorough engineering study. Leonard testified he had not performed a hydrology
study or studied the flow of water to or through the Pipe. Leonard testified he had
not analyzed whether an alternative drainage line could be placed in any particular
location to divert water flow; he had not analyzed whether any alternatives would
conflict with other existing infrastructure; he had not analyzed the topography of
the watershed area to know if and how an alternative line could reroute the water
flow; and he had not studied or analyzed the feasibility or cost of any alternatives
to routing water flow. Leonard admitted that all of these factors would have to be
studied to properly render an opinion as to the issue of whether the flow of water
through the Pipe is reasonably and practically abatable. Finally, Leonard testified
that although he believed the water flow could be rerouted around the Property, he
was unable to testify to such with a reasonable degree of engineering certainty. As
gatekeeper for expert testimony, the trial court properly excluded Leonard's
opinions regarding abatability.

III.   Directed Verdict

Ray argues the circuit court erred in granting a directed verdict on her trespass
claim. We disagree.

When reviewing the circuit court's ruling on a directed verdict motion, this court
must apply the same standard as the circuit court "by viewing the evidence and all
reasonable inferences in the light most favorable to the nonmoving party." Elam v.
S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004). An appellate
court will reverse the circuit court's ruling on a directed verdict motion only when
there is no evidence to support the ruling or when the ruling is controlled by an
error of law. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434-35, 629 S.E.2d 642,
648 (2006). "When the evidence yields only one inference, a directed verdict in
favor of the moving party is proper." Wright v. Craft, 372 S.C. 1, 22, 640 S.E.2d
486, 498 (Ct. App. 2006). "On the other hand, the [circuit] court must deny a
motion for a directed verdict when the evidence yields more than one inference or
its inference is in doubt." Id. "When considering a directed verdict motion, neither
the [circuit] court nor the appellate court has authority to decide credibility issues
or to resolve conflicts in the testimony or evidence." Burnett v. Family Kingdom,
Inc., 387 S.C. 183, 188-89, 691 S.E.2d 170, 173 (Ct. App. 2010).

After granting the City's motion to exclude Leonard's expert testimony, Ray
conceded a directed verdict was proper in light of the circuit court's exclusion of
Leonard's testimony on the issue of abatability. With no genuine issue of material
fact remaining, the court found the City was entitled to judgment as a matter of
law. We find the court did not err in granting a directed verdict. Ray did not offer
any evidence on the issue of abatability other than the proposed testimony of
Leonard. After the court excluded Leonard's testimony, there was no issue of
material fact regarding the critical element of continuing trespass. Thus, a directed
verdict in favor of the City was proper.
CONCLUSION

We reverse the special circuit court judge's grant of summary judgment as to Ray's
inverse condemnation claim. Additionally, we affirm the circuit court's exclusion
of witness testimony regarding abatability and its grant of a directed verdict to the
City as to Ray's claim for trespass.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MCDONALD, J., concurs.

SHORT, J., concurring in part and dissenting in part: Respectfully, I concur in
part and dissent in part. I agree with the majority to affirm the exclusion of expert
testimony, the directed verdict on the trespass claim, and the injunctive relief.
However, I would also affirm the trial court's grant of summary judgment on the
inverse condemnation claim. "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 a public use; and (4) the
taking has some degree of permanence.'" Hawkins v. City of Greenville, 358 S.C.
280, 290, 594 S.E.2d 557, 562 (Ct. App. 2004) (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)).
I agree with the circuit court that Ray has failed to allege an affirmative, positive,
aggressive act on the City's part and Hawkins is controlling. The evidence shows
the pipes in the middle of College Avenue were broken during a City project, and
the City repaired the pipes. I conclude this was maintenance to an existing system
of pipes and not the basis for a claim for inverse condemnation. Thus, I would
affirm.
