Filed: May 14, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1885 JOHN E. THOMPSON, Plaintiff - Appellant, v. CDL PARTNERS LLC, Defendant - Appellee, v. DON ALVIN MESSERVY, Third Party Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:08-cv-02423-PMD) Submitted: April 21, 2010 Decided: May 14, 2010 Before MOTZ, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1885 JOHN E. THOMPSON, Plaintiff - Appellant, v. CDL PARTNERS LLC, Defendant - Appellee, v. DON ALVIN MESSERVY, Third Party Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:08-cv-02423-PMD) Submitted: April 21, 2010 Decided: May 14, 2010 Before MOTZ, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curia..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1885
JOHN E. THOMPSON,
Plaintiff - Appellant,
v.
CDL PARTNERS LLC,
Defendant - Appellee,
v.
DON ALVIN MESSERVY,
Third Party Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:08-cv-02423-PMD)
Submitted: April 21, 2010 Decided: May 14, 2010
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel L. Prenner, PRENNER MARVEL, P.A., Charleston, South
Carolina, for Appellant. Eric G. Fosmire, COLLINS & LACY, P.C.,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John E. Thompson appeals the district court’s grant of
summary judgment in favor of CDL Partners LLC (CDL), in this
personal injury action. For the following reasons, we affirm.
I.
In 2006, Thompson, a resident of Florida, was living
in Folly Beach, South Carolina, in a residential apartment owned
and maintained by CDL. 1 Thompson’s apartment was on the second
floor of a three-floor complex. Garages were on the ground
floor and two apartments were located on each of the second and
third floors. Each floor had an exterior balcony and the
stairwell—located in the middle of the building—was also
exterior. On the evening of July 19, 2006, Thompson was smoking
a cigarette and leaned against the second-floor balcony railing.
The railing collapsed, and Thompson fell roughly twenty feet to
the cement parking lot below. Thompson landed on his arms and
head, sustaining significant injuries including two broken arms
and a head injury. Karl Poruben, who lived above Thompson,
discovered him in the parking lot at approximately 10:30 or 11
p.m. Because of darkness at that late hour, Poruben did not
1
CDL purchased the complex from the original builder, Don
Alvin Messervy, in 2004. Messervy constructed the building in
1996.
2
immediately grasp the severity of Thompson’s injuries and aided
him up the stairs. In Thompson’s apartment, Poruben saw how
severe Thompson’s arm injuries were. Poruben called 911, and
Thompson was soon transported to an area hospital.
Prior to Thompson’s fall, there had been two attempts
to fix the railing in question. Roughly two weeks before,
Thompson’s next door neighbor, Kenneth McDowell, noticed the
railing just “dangling,” and, because Thompson was not home at
the time, McDowell endeavored to repair it. McDowell and
Poruben had previously seen Thompson resting his feet on the
railing while sitting on the balcony. After McDowell attempted
to fix the railing, he informed Thompson that, because the wood
was in poor condition, he should not lean against it. Several
days later, Poruben saw that the railing had completely fallen
off and landed on his car. Poruben notified Thompson, and later
that day he saw Thompson attempting to affix the railing again.
For his part, Thompson does not remember the incident with
Poruben, but he does remember McDowell mentioning that the
railing was in poor condition.
After McDowell fixed the railing, he mentioned its
condition to his roommate, James Polito. Because McDowell was
subleasing a room from Polito, Polito—not McDowell—typically
dealt with the landlord. In fact, it was McDowell’s
understanding that Polito had an agreement with the building’s
3
original owner, Don Alvin Messervy, to perform certain upkeep on
the property. McDowell thought that Polito spoke to CDL
regarding the railing, but Polito could not recall doing so.
McDowell, Poruben, and Thompson all testified that they did not
notify CDL about the railing’s condition prior to Thompson’s
fall.
On July 3, 2008, Thompson filed this action in the
District of South Carolina against CDL, alleging claims for
common law negligence and a violation of the South Carolina
Residential Landlord and Tenant Act (“SCRLTA”). The district
court entered an initial scheduling order, setting a discovery
deadline of June 30, 2009. Prior to this deadline, on January
21, 2009, CDL moved for summary judgment. The district court,
without a hearing, granted the motion on July 10, 2009.
Thompson filed a timely notice of appeal and this court has
jurisdiction pursuant to 28 U.S.C. § 1291 (2006).
II.
On appeal, Thompson argues that the district court
erred in granting summary judgment on both of his state law
claims and also erred in granting summary judgment prior to the
discovery deadline. We address each contention in turn.
4
A.
We review a grant of summary judgment de novo.
Jennings v. University of North Carolina, 482 F.3d 686, 694 (4th
Cir. 2007) (en banc). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2). We generally must
view all facts and draw all reasonable inferences in the light
most favorable to the nonmoving party. Scott v. Harris,
550
U.S. 372, 378 (2007).
The parties agree that South Carolina substantive law
controls. As a federal court sitting in diversity, we have an
obligation to apply the jurisprudence of South Carolina’s
highest court, the South Carolina Supreme Court. Wells v.
Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999). But in a situation
where the South Carolina Supreme Court has spoken neither
directly nor indirectly on the particular issue, we must predict
how that court would rule if presented with the issue.
Id. In
so predicting, decisions of the South Carolina Court of Appeals,
as the state’s intermediate appellate court, “constitute the
next best indicia of what state law is, although such decisions
may be disregarded if the federal court is convinced by other
persuasive data that the highest court of the state would decide
5
otherwise.” Liberty Mut. Ins. Co. v. Triangle Indus. Inc., 957
F.2d 1153, 1156 (4th Cir. 1992) (internal quotation marks
omitted). With this framework in place, we turn to Thompson’s
SCRLTA and common law negligence claims.
1.
“Traditionally, under the law of South Carolina, a
landlord owes no duty to maintain leased premises in a safe
condition.” Young v. Morrisey, 329 S.E.2d 426, 428 (S.C. 1985).
The SCRLTA, enacted in 1986, requires a landlord to comply with
applicable housing codes materially affecting health and safety,
and “make all repairs and do whatever is reasonably necessary to
put and keep the premises in a fit and habitable condition.”
S.C. Code Ann. § 27-40-440(a)(1)-(2) (2007). The SCRLTA
provides for recovery of actual damages as a result of any
material noncompliance by the landlord. S.C. Code Ann. § 27-40-
610(a)-(b) (2007). Negligence actions may be brought under the
SCRLTA. Pryor v. Northwest Apartments, Ltd.,
469 S.E.2d 630,
632 (S.C. Ct. App. 1996). “As with any negligence action,
plaintiff must establish (1) a duty of care owed by the
defendant to the plaintiff; (2) a breach of that duty by a
negligent act or omission; and (3) damage proximately resulting
from the breach.”
Id. at 633.
Both parties agree that the railing did not satisfy
required safety standards under § 27-40-440 at the time of
6
Thompson’s fall. Thompson argues that is the extent of his
burden under the SCRLTA. CDL argues that, even under the
SCRLTA, Thompson must show that CDL had notice of the defective
condition. The district court, relying primarily on a recent
case by the South Carolina Court of Appeals, 2 Robinson v. Code,
682 S.E.2d 495 (S.C. Ct. App. 2009), agreed with CDL’s position.
We also agree with CDL, that, in light of the rulings
of the South Carolina Court of Appeals, the South Carolina
Supreme Court would require that a landlord have notice of a
defect before being liable to the tenant under the SCRLTA. In
1989, the Court of Appeals held, just years after the SCRLTA’s
enactment, that “the RLTA by express words creates a cause of
action in tort in favor of a tenant of residential property
against his landlord for failure, after notice, to make
necessary repairs and to do what is reasonably necessary to keep
the premises in a habitable condition.” Watson v. Sellers, 385
S.E.2d 369, 373 (S.C. Ct. App. 1989) (emphasis added).
Recently, in Code, the Court of Appeals reaffirmed that “the
Landlord-Tenant Act require[s] written notice to the landlord
specifying the acts and omissions constituting the breach and
failure of the landlord to make the necessary repairs after
notice.”
Code, 682 S.E.2d at 497-98. In Code, a single-family
2
The district court incorrectly identified Robinson v. Code
as having been decided by the South Carolina Supreme Court.
7
home that had been converted into a rental property lacked smoke
detectors in violation of state law. The Court of Appeals
nonetheless concluded that, because the plaintiffs failed to
allege that they notified the owner of the lack of smoke
detectors, they could not state a claim under the SCRLTA. Id.
at 498.
This consistent interpretation of the SCRLTA by the
Court of Appeals convinces us that the South Carolina Supreme
Court would require that the tenant provide the landlord notice
of a defective condition before liability attaches under the
SCRLTA. In addition, the Court of Appeals pointed to two
provisions of the SCRLTA that buttress such a conclusion.
First, the Act mentions the delivery of “a written notice to the
landlord specifying the acts and omissions constituting the
breach.” S.C. Code Ann. § 27-40-610(a). In addition, the
SCRLTA states that the tenant’s rights “do not arise until he
has given notice to the landlord and the landlord fails to act
within a reasonable time.” S.C. Code Ann. § 27-40-630(d).
Thompson next argues that, even under CDL’s
interpretation of the SCRLTA, there was sufficient evidence to
survive summary judgment because, either CDL did have notice of
the defective railing, or McDowell was an agent of CDL. The
district court ruled against Thompson on both issues.
8
Regarding notice, the district court found that
summary judgment was appropriate because “[e]ssentially, then,
all residents of the building in question have given deposition
testimony in which they explicitly denied ever contacting [CDL]
regarding the railing. No reasonable jury could evaluate this
information and rule that [CDL] received notice.” On appeal,
Thompson points to McDowell’s testimony that he told Polito
about the railing and that McDowell thought that Polito spoke to
CDL about getting it fixed. As the district court explained,
however, McDowell “acknowledged” that he himself had not
contacted CDL and “never claimed to have any first-hand or
direct knowledge that Polito contacted [CDL].” Moreover, Polito
testified in his deposition that he did not recall contacting
CDL. We agree with the district court that McDowell’s
speculation that his roommate might have contacted CDL—in the
face of admissions from McDowell, Polito, Poruben, and Thompson
that none of them did contact CDL—is insufficient to create a
genuine issue of material fact.
Thompson also argues that CDL had notice of the defect
because McDowell was CDL’s apparent agent and, thus, his notice
can be imputed to CDL. South Carolina recognizes the law of
apparent agency, that is:
One who employs an independent contractor to perform
services for another which are accepted in the
reasonable belief that the services are being rendered
9
by the employer or by his servants, is subject to
liability for physical harm caused by the negligence
of the contractor in supplying such services, to the
same extent as though the employer were supplying them
himself or by his servants.
Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312, 322 (S.C.
2000) (internal quotation marks omitted). According to
Thompson, McDowell’s testimony regarding his role in the upkeep
of the property suggests that McDowell was CDL’s agent. The
district court rejected this argument, concluding that McDowell
never had any direct contact with CDL and that his behavior
“constitute[d] being a good tenant and neighbor and taking pride
in one’s residence.” The district court further concluded that,
to the extent McDowell did perform work at the behest of CDL,
“such behavior would have always been narrowly confined to a
specific task, and would not give rise to the same general
apparent agency.” We agree with the district court that
McDowell was not an agent of CDL. Under the law of apparent
agency, CDL would still be required to have hired McDowell as an
independent contractor performing functions for CDL. It is
undisputed, however, that McDowell never spoke with CDL and that
any agreement regarding yard work and upkeep was between Polito
and CDL’s predecessor, Messervy.
2.
Thompson also appeals the grant of summary judgment on
his common law negligence claim. Under South Carolina law, a
10
plaintiff must prove four elements to recover under a negligence
theory: "(1) a duty of care owed by defendant to plaintiff; (2)
breach of that duty by a negligent act or omission; (3)
resulting in damages to the plaintiff; (4) damages proximately
resulted from the breach of duty." Thomasko v. Poole, 561
S.E.2d 597, 599 (S.C. 2002). “An essential element in a cause
of action for negligence is the existence of a legal duty of
care owed by the defendant to the plaintiff.” Bishop v. S.C.
Dep’t of Mental Health,
502 S.E.2d 78, 81 (S.C. 1998).
The district court correctly granted summary judgment
on this claim because Thompson cannot establish a duty on the
part of CDL. As discussed above, “[t]raditionally, under the
law of South Carolina, a landlord owes no duty to maintain
leased premises in a safe condition.” Morrisey, 329 S.E.2d at
428. Indeed, one of the purposes of the SCRLTA was to create a
negligence action in this area. Thompson attempts to avoid this
conclusion by suggesting that CDL created the hazard, but no
record evidence supports the suggestion that CDL knew of the
railing’s condition, yet alone created it.
B.
Finally, Thompson argues that the district court
erroneously granted CDL’s summary judgment motion prior to the
discovery deadline. Thompson is correct that, “[a]s a general
rule, summary judgment is appropriate only after ‘adequate time
11
for discovery.’” Evans v. Technologies Applications & Serv.
Co., 80 F.3d 954, 961 (4th Cir. 1996). We have also explained,
however, that “the nonmoving party cannot complain that summary
judgment was granted without discovery unless that party had
made an attempt to oppose the motion on the grounds that more
time was needed for discovery or moved for a continuance to
permit discovery before the district court ruled.”
Id. Our
approach dovetails with Federal Rule of Civil Procedure 56(f),
which provides that a party opposing summary judgment may file
an affidavit providing specific reasons that it cannot oppose a
motion for summary judgment without the opportunity to conduct
further discovery. We place “great weight” on a Rule 56(f)
affidavit, and have explained that “a party may not simply
assert in its brief that discovery was necessary and thereby
overturn summary judgment when it failed to comply with the
requirement of Rule 56(f) to set out reasons for the need for
discovery in an affidavit.”
Evans, 80 F.3d at 961 (internal
quotation marks and alteration omitted). In Evans, we cited
with approval a Second Circuit holding that “‘the failure to
file an affidavit under Rule 56(f) is itself sufficient grounds
to reject a claim that the opportunity for discovery was
inadequate.’”
Id. (quoting Paddington Partners v. Bouchard,
34
F.3d 1132, 1137 (2d Cir. 1994)).
12
In this case, the district court set forth an initial
discovery deadline of June 30, 2009, but CDL filed its motion
for summary judgment on January 29. In his response to CDL’s
motion, Thompson mentioned that the discovery deadline had not
passed and that he “intend[ed] to notice the deposition of
third-party defendant Don Alvin Messervy” prior to the deadline.
Thompson did not file a Rule 56(f) affidavit, however, and never
took Messervy’s deposition even though the district court did
not ultimately rule upon the summary judgment motion until July
10, 2009. 3
Given this factual record, we conclude that the
district court did not err in granting summary judgment before
the discovery deadline. Thompson had more than six months
between the filing of CDL’s summary judgment motion and the
district court’s order granting summary judgment to either file
a Rule 56(f) affidavit or attempt to take more discovery.
Because he did neither he cannot now be heard to complain that
he lacked adequate discovery time.
3
The district court entered a revised scheduling order on
April 29, 2009, setting forth a new discovery deadline of August
31, 2009.
13
III.
We affirm the district court’s grant of summary
judgment in favor of CDL on Thompson’s SCRLTA and common law
negligence claims. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
14
