Larry Gregg v. Herman Smalls, III

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

Larry Gregg, Appellant,

v.

Herman Smalls, III, Izetta Shaw a/k/a Syvetta Smalls,
John Doe and Jane Doe, as fictitious names for a class of
unknown persons being incompetents, minors, person in
military service to the United States of America,
imprisoned, and/or under any other form of legal
disability, including but not limited to unknown heirs,
devisees, distributes, administrators, or personal
representatives of deceased persons Herman Smalls, Jr.
and Lamont Green and all other persons known or appear
of record to have some right, title, interest in or lien upon
the real estate described in the complaint herein,
Defendants.

Of whom Herman Smalls, III, and Izetta Shaw a/k/a
Syvetta Smalls are Respondents.

Appellate Case No. 2022-000185

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2024-UP-250
Submitted June 1, 2024 – Filed July 10, 2024

AFFIRMED
Karen Marie DeJong, of DeJong Law Firm, LLC, of Mt.
Pleasant, for Appellant.

J. Christopher Lanning, of Brush Law Firm, of
Charleston, for Respondent.

PER CURIAM: Larry Gregg appeals the master-in-equity's order granting
summary judgment in favor of Herman Smalls, III, and Izetta Shaw a/k/a Syvetta
Smalls (collectively, Respondents), finding Gregg was unable to prove the hostility
element for adverse possession of the disputed property because he had permission
to live on the property and he did not satisfy the statutory time period for adverse
possession for the limited time his possession was hostile. On appeal, Gregg
argues the master-in-equity erred in granting summary judgment because (1)
Respondents were not the legal owners of the property until 2022, prior to which
they could not have permitted Gregg to live there, and (2) there was evidence to
support Gregg's adverse possession claim. We affirm pursuant to Rule 220(b),
SCACR.

1. We hold the master-in-equity did not err in granting Respondents' motion for
summary judgment because Respondents were the legal owners of the property;
therefore, Respondents could permit Gregg to live on the property. See S. Glass &
Plastics Co. v. Kemper, 399 S.C. 483, 490, 732 S.E.2d 205, 208-09 (Ct. App.
2012) ("When reviewing the grant of a summary judgment motion, this court
applies the same standard that governs the trial court under Rule 56(c) [of the
South Carolina Rules of Civil Procedure]; summary judgment is proper when there
is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law."); id. at 490, 732 S.E.2d at 209 ("In determining
whether a genuine issue of fact exists, the evidence and all reasonable inferences
drawn from it must be viewed in the light most favorable to the nonmoving
party."). Here, the property in question originally was part of a larger tract of land
owned by Respondents' family members until exclusive ownership of the property
was conveyed to Herman Smalls, Jr. (Smalls)—Respondents' father—in 1985.
Smalls died intestate in 2005, survived by Respondents. Title to the property
vested in Respondents, as Smalls's heirs, immediately upon his death. See Carter
v. Wroten, 187 S.C. 432, 432, 198 S.E. 13, 15 (1938) ("Title to real estate cannot
remain in abeyance; it must be vested in someone."); id. ("When, therefore, a
person seized of real estate dies intestate, the title to such estate vests at once in his
heirs, if he leaves any.").

2. We hold the master-in-equity did not err in finding Gregg failed to satisfy the
hostility element of adverse possession. See Kemper, 399 S.C. at 490, 732 S.E.2d
at 208-09 ("When reviewing the grant of a summary judgment motion, this court
applies the same standard that governs the trial court [and] summary judgment is
proper when there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law."); id. at 490, 732 S.E.2d at 209 ("In
determining whether a genuine issue of fact exists, the evidence and all reasonable
inferences drawn from it must be viewed in the light most favorable to the
nonmoving party."); McDaniel v. Kendrick, 386 S.C. 437, 442, 688 S.E.2d 852,
855 (Ct. App. 2009) ("In order to establish a claim of adverse possession, the
claimant must prove by clear and convincing evidence his possession of the subject
property was continuous, hostile, actual, open, notorious, and exclusive for the
statutory period."); id. at 441, 688 S.E.2d at 854 ("An adverse possession claim is
an action at law."); id. at 441, 688 S.E.2d at 854-55 ("In an action at law tried
without a jury, this court will not disturb the trial court's findings unless they are
wholly unsupported by the record or controlled by an error of law."). In 1986,
Smalls gave Gregg express permission to move his mobile home onto the property.
After Smalls's death in 2005, Respondents continued to allow Gregg to live on the
property. Respondents did not request Gregg vacate the property until 2019, which
he refused to do. At his deposition, Gregg testified he never intended to deprive
Smalls and his heirs of their rights to the property, asserted he did not know who
owned it, and averred that he never paid property taxes on or received a deed to the
lot. See id. at 442, 688 S.E.2d at 855 ("In order to establish a claim of adverse
possession, the claimant must prove by clear and convincing evidence his
possession of the subject property was continuous, hostile, actual, open, notorious,
and exclusive for the statutory period."); Jones v. Leagan, 384 S.C. 1, 10, 681
S.E.2d 6, 11 (Ct. App. 2009) ("In South Carolina, adverse possession may be
established if the elements of the claim are shown to exist for at least ten years.");
Davis v. Monteith, 289 S.C. 176, 180, 345 S.E.2d 724, 726 (1986) (explaining
possession is hostile if the claimant has entered the property without the owner's
permission); McDaniel, 386 S.C. at 442-43, 688 S.E.2d at 855 ("[T]he hostility
requirement is not necessarily predicated upon the claimant's conscience intention
to possess the property against the true owner's wishes. A claimant may establish
adverse possession if he occupies the property under the mistaken belief that it
belongs to him."); id. at 443, 688 S.E.2d at 855 (stating adverse possession requires
a claimant to be on the property without the owner's consent); id. at 444, 688
S.E.2d at 856 (explaining that if a claimant begins using property with the
permission of the owner, it "may begin to satisfy the requirement of hostility upon
a clear disclaimer of the owner's title"); id. at 443-44, 688 S.E.2d at 855-56
(concluding wife failed to establish her actions were hostile for most of the time
she occupied the property, because she entered with the prior owner's—her
husband's—permission, "remained there . . . with [daughter]'s tacit permission,"
and testified: (1) she knew the property was titled solely in husband's name when
she was married to him; (2) she was aware it was titled solely in daughter's name
when it was conveyed to her; and (3) wife knowingly never paid taxes on the entire
lot, only her mobile home).
AFFIRMED. 1

WILLIAMS, C.J., and KONDUROS and TURNER, JJ., concur.

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