Davidson v. City of Beaufort

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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

Amy Davidson, Appellant,

City of Beaufort, Branch Banking & Trust of South Carolina, Collins Engineering, Inc., Brantley Construction Company, Inc., and Tidal Wave 23, LLC, Defendants,

Of whom Branch Banking & Trust of South Carolina and City of Beaufort are Respondents.

Phillip Davidson, Appellant,

City of Beaufort, Branch Banking & Trust of South Carolina, Collins Engineering, Inc., Brantley Construction Company, Inc., and Tidal Wave 23, LLC, Defendants,

Of whom Branch Banking & Trust of South Carolina and City of Beaufort are Respondents.

Appellate Case No. 2010-163346

Appeal From Beaufort County Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2013-UP-059 Heard December 10, 2012 – Filed January 30, 2013

AFFIRMED

H. Fred Kuhn, Jr., of Moss Kuhn & Fleming, PA, of Beaufort, for Appellants Amy and Philip Davidson.

Edward K. Pritchard, III, of Pritchard & Elliott, LLC, of Charleston, for Respondent Branch Banking and Trust of South Carolina; William B. Harvey, III, of Harvey & Battey, PA, and Mary Bass Lohr and William Thomas Young, III, of Howell Gibson & Hughes, PA, all of Beaufort, for Respondent City of Beaufort.

PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the trial court erred in granting summary judgment prior to the completion of discovery: Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) (holding the nonmoving party must show a likelihood that further discovery will uncover additional relevant evidence); Gauld v. O'Shaugnessy Realty Co., 380 S.C. 548, 559, 671 S.E.2d 79, 85 (Ct. App. 2008) (holding a failure of proof on an essential element of the case renders all other facts immaterial).

2. As to whether the trial court erred in granting summary judgment to BB&T: Estate of Adair v. L-J, Inc., 372 S.C. 154, 160, 641 S.E.2d 63, 66 (Ct. App. 2007) (indicating a landowner owes no duty to a trespasser except the duty not to do him willful or wanton injury).

3. As to whether the trial court erred in granting summary judgment to the City of Beaufort: Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997) ("One who controls the use of property has a duty of care not to harm others by its use. Conversely, one who has no control owes no duty." (citations omitted)); Gauld, 380 S.C. at 559, 671 S.E.2d at 85 ("A complete failure of proof concerning

an essential element of the non-moving party's case necessarily renders all other facts immaterial." (citation and internal quotation marks omitted)).

AFFIRMED.

SHORT, KONDUROS, and LOCKEMY, JJ., concur.