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THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The City of North Myrtle Beach, Appellant,

v.

Norma Lewis-Davis and Nancy Lewis-Worriax, Respondents.

Appeal From Horry County
 Steven H. John, Circuit Court Judge

Opinion No. 3834
Heard June 10, 2004 – Filed June 28, 2004

REVERSED

Charles E. Carpenter, Jr. and S. Elizabeth Brosnan, both of Columbia; and Christopher Paul Noury, of North Myrtle Beach; and Douglas C. Baxter, of Myrtle Beach, for Appellant.

John R. Clarke, of North Myrtle Beach, for Respondents.

ANDERSON, J.: In this condemnation action, the City of North Myrtle Beach appeals the trial court’s order holding landowners Norma Lewis-Davis and Nancy Lewis-Worriax could file a separate action for trespass against Appellant despite the expiration of the statute of limitations.  We reverse.

FACTUAL/PROCEDURAL BACKGROUND

Respondents own lots in the Windy Hill section of North Myrtle Beach.  Appellant sought to obtain a portion of Respondents’ lots for a roadway and sidewalk easement.  Respondents rejected Appellant’s $25,000 tender; therefore, on January 27, 2000, Appellant filed a condemnation notice and tender of payment against Respondents, pursuant to section 28-2-240 of the South Carolina Code.  On March 13, 2000, Respondents counterclaimed, rejecting the $25,000 tender and seeking $500,000 just compensation.  In their counterclaim, Respondents alleged Appellant trespassed on their property by cutting down trees and damaging a sign.  In its reply filed March 24, 2000, Appellant moved to dismiss the counterclaim under Rule 12(b)(6), SCRCP.  Appellant filed a separate motion to dismiss on April 10, 2000.  The motion was scheduled, continued, and then withdrawn to allow new counsel for Appellant to become familiar with the case. 

On April 17, 2001, Respondents moved to amend their answer to allege additional damages for trespass.  On October 19, 2001, Judge J. Michael Baxley granted the motion to amend.  On March 4, 2002, Appellant again moved to dismiss the counterclaim for trespass based on South Carolina State Highway Department v. Moody, 267 S.C. 130, 226 S.E.2d 423 (1976).  Moody holds, “a condemnation proceeding, or an appeal therefrom, is not a proper proceeding in which to seek redress for trespass and/or damages, proximately caused by negligence.”  Id. at 134, 226 S.E.2d at 424.  The Moody court reasoned that “[a]llowing the landowner to pursue inverse condemnation within this condemnation proceeding denied the Department of due process, because it obviously had no notice that the landowners would seek compensation for damages . . . growing out of the negligent conduct of the independent contractor.”  Id. at 136, 226 S.E.2d at 426. 

On June 13, 2002, Judge Steven H. John granted Appellant’s motion to dismiss, finding, under Moody, Respondents could not assert a counterclaim for trespass in a condemnation action.  However, Judge John decided that despite the fact that the Tort Claims Act’s two-year statute of limitations would bar any subsequent lawsuit by Respondents for trespass, Respondents could file a separate suit despite the efficacy of the statute of limitations.  Judge John reached this conclusion because he believed Judge Baxley’s order granting Respondents’ motion to amend “prejudiced [Respondents] and led them to believe their rights were protected and that it was not necessary to file a separate action for their damages.”  Judge John took judicial notice that Appellant did not file a Rule 59(e) Motion to Alter of Amend a Judgment regarding Judge Baxley’s order.

On June 24, 2002, Appellant filed a motion to alter or amend.  On October 28, 2002, Judge John issued an amended order which reaffirmed his prior ruling.  Appellant served a notice of appeal on November 27, 2002.  At trial on December 9, 2002, Respondents received judgment in the amount of $70,560.  On December 12, 2002, Respondents commenced a separate lawsuit against Appellant and another defendant, Weaver Company, Inc., alleging trespass and negligence.

LAW/ANALYSIS
I.       Issue Not Properly Before the Trial Court 

Although Judge John granted Appellant’s motion to dismiss, he held Respondents could file a separate action for trespass despite the expiration of the statute of limitations.  However, Judge John did not base this decision on a ground Respondents raised.  While Judge John relied on his belief that Judge Baxley’s order granting Respondents’ motion to amend prejudiced them, Respondents only sought leave to refile on the basis that the statute was tolled on March 13, 2000, the date they filed their initial counterclaim.  Respondents attempt to argue in their brief that they raised the issue of prejudice in a letter written to Judge John.  However, the letter only mentions Judge Baxley’s order: “An Order was issued by Judge Baxley on October 19, 2001 allowing [Respondents] to amend their Answer and assert an additional claim of trespass.”  This sentence does not raise the issue of prejudice to Respondents from Judge Baxley’s order.  In fact, the sole reference Respondents make in the letter to tolling the statute of limitations is that “the statute was tolled when [Respondents] initially brought the counterclaim on March 13, 2000.”  Indubitably, Respondents made no claim for relief based on Judge Baxley’s order.   

“It is an error of law for a court to decide a case on a ground not before it.”  Griffin v. Capital Cash, 310 S.C. 288, 294, 423 S.E.2d 143, 147 (Ct. App. 1992); see Friedberg v. Goudeau, 279 S.C. 561, 562, 309 S.E.2d 758, 759 (1983) (reversing the grant of summary judgment because the ground for summary judgment was not properly before the trial court).  A reversal is required when the trial court’s ruling exceeds the limits and scope of the particular motion before it.  Skinner v. Skinner, 257 S.C. 544, 550, 186 S.E.2d 523, 526 (1972).  Because we decide Judge John granted Respondents relief on a ground they did not raise or argue, it was error for him to rule the statute of limitations was tolled as of the date of Judge Baxley’s order.