West/Hobby v. County of Newberry

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

West/Hobby, LLC, Respondent,

v.

County of Newberry, Appellant.

Appellate Case No. 2016-001773

Appeal From Newberry County
Donald B. Hocker, Circuit Court Judge

Unpublished Opinion No. 2019-UP-257
Heard December 4, 2018 – Filed July 17, 2019

AFFIRMED

Patrick John Frawley, of Davis Frawley, LLC, of
Lexington, for Appellant.

James L. Bruner and Benjamin C. Bruner, both of Bruner
Powell Wall & Mullins, LLC, of Columbia, for
Respondent.

PER CURIAM: In this inverse condemnation action, the County of Newberry
(the County) appeals the trial court's rulings that a taking of West/Hobby, LLC's
land had occurred and West/Hobby's claim was not barred by the statute of
limitations or the doctrine of assumption of the risk. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:

1. As to the County's argument on the statute of limitations, we find because the
County failed to challenge the trial court's ruling the statute of limitations was
tolled until 2011, this ruling is the law of the case: Jones v. Lott, 387 S.C. 339, 346,
692 S.E.2d 900, 903 (2010) ("Under the two issue rule, where a decision is based
on more than one ground, the appellate court will affirm unless the appellant
appeals all grounds because the unappealed ground will become the law of the
case."), abrogated on other grounds by Repko v. Cty. of Georgetown, 424 S.C.
494, 818 S.E.2d 743 (2018); McClurg v. Deaton, 395 S.C. 85, 87 n.2, 716 S.E.2d
887, 888 n.2 (2011) ("It is axiomatic that an issue cannot be raised for the first time
in a reply brief."). We further find the County failed to meet its burden of
demonstrating the trial court erred in ruling the statute of limitations had not run
because West/Hobby's injury was abatable: Cutchin v. S.C. Dep't of Highways &
Pub. Transp., 301 S.C. 35, 37, 389 S.E.2d 646, 648 (1990) ("Where . . . the cause
of the injury is abatable, each injury gives rise to a new cause of action which may
be commenced within the applicable limitations period." (citing McCurley v. S.C.
State Highway Dep't, 256 S.C. 332, 335, 182 S.E.2d 299, 300 (1971); Webb v.
Greenwood Cty., 229 S.C. 267, 277, 92 S.E.2d 688, 692 (1956))); Rule 15(b),
SCRCP ("When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been raised
in the pleadings."); McCall v. IKON, 380 S.C. 649, 659-60, 670 S.E.2d 695, 701
(Ct. App. 2008) (stating "an appealed order comes to the appellate court with a
presumption of correctness and the burden is on appellant to demonstrate
reversible error").

2. As to the County's argument concerning the doctrine of assumption of the risk:
Cole v. Raut, 378 S.C. 398, 405 n.2, 663 S.E.2d 30, 33 n.2 (2008) (holding the
affirmative defense of assumption of the risk had been largely subsumed by the
law of comparative negligence (citing Davenport v. Cotton Hope Plantation
Horizontal Prop. Regime, 333 S.C. 71, 88, 508 S.E.2d 565, 574 (1998))); id. at
404-05, 663 S.E.2d at 33 ("In order for the doctrine of assumption of the risk to
apply in a particular case, the injured party must have freely and voluntarily
exposed himself to a known danger which he understood and appreciated." (citing
Faile v. Bycura, 289 S.C. 398, 399, 346 S.E.2d 528, 529 (1986))); Singleton v.
Sherer, 377 S.C. 185, 207, 659 S.E.2d 196, 208 (Ct. App. 2008) ("The doctrine is
predicated on the factual situation of a defendant's acts alone creating the danger
and causing the accident, with the plaintiff's act being that of voluntarily exposing
himself to such an obvious danger with appreciation thereof which resulted in the
injury." (quoting Davenport, 333 S.C. at 79, 508 S.E.2d at 569)).

3. As to whether West/Hobby established a taking occurred: Carolina Chloride,
Inc. v. S.C. Dep't of Transp., 391 S.C. 429, 435, 706 S.E.2d 501, 504 (2011) ("The
elements of an action for an inverse condemnation are: (1) affirmative conduct of a
government entity; (2) the conduct effects a taking; and (3) the taking is for a
public use." (citing Byrd v. City of Hartsville, 365 S.C. 650, 657, 620 S.E.2d 76, 79
(2005))); WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479,
481 (2006) ("Whether the plaintiff has established a claim for inverse
condemnation is a matter for the court to determine." (citing Cobb v. S.C. Dep't of
Transp., 365 S.C. 360, 365, 618 S.E.2d 299, 301 (2005))); id. ("To prevail in such
an 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."
(quoting Berry's On Main, Inc. v. City of Columbia, 277 S.C. 14, 15, 281 S.E.2d
796, 797 (1981); Kline v. City of Columbia, 249 S.C. 532, 536, 155 S.E.2d 597,
599 (1967))); Kline, 249 S.C. at 536, 155 S.E.2d at 599 ("No logical reason is
suggested why the invasion of one's property with a highly inflammable substance,
such as gas, should be considered any less a taking of property than an invasion by
water."); WRB Ltd. P'ship, 369 S.C. at 33, 630 S.E.2d at 481 (holding the capping
of a landfill was an "affirmative, aggressive, positive act").

AFFIRMED.

HUFF, SHORT, and WILLIAMS, JJ., concur.