In The Court of Appeals

Commercial Investments, Inc.,        Appellant,


Ken Moorhead Oil, Inc. and Kenneth Moorhead,        Respondents.

Appeal From Anderson County
Alexander S. Macaulay, Circuit Court Judge

Unpublished Opinion No. 2003-UP-199
Submitted January 29, 2003 – Filed March 17, 2003  


William A. Coates, of Greenville; for Appellant

Herman E. Cox, of Greenville; for Respondents.

PER CURIAM: Commercial Investments, Inc. filed a complaint against Ken Moorhead Oil, Inc. and Ken Moorhead, claiming breach of contract and breach of contract with fraudulent intent.  The trial court granted summary judgment in favor of Moorhead Oil, finding the three-year statute of limitations had run.  Commercial Investments appeals, arguing the trial court erred in granting summary judgment because there was a factual question as to when the statute of limitations began to run.


While building a convenience store in Anderson County, John Tollison, the owner of Commercial Investments, purchased two underground fuel tanks.  In 1972, Tollison entered into an oral contract with Moorhead Oil, in which Tollison agreed to give the tanks to Moorhead Oil in exchange for Moorhead Oil installing the tanks, pumps, and related equipment on Tollison’s property and paying a commission on the gas that was sold.

Moorhead Oil abandoned the tanks in 1989 and attempted to remove the tanks on two separate occasions, but each time the operators of the convenience store interfered with the removal. Moorhead Oil wrote a letter to the tenants of Tollison, informing them that “[they] are responsible for anything or any liability that arises from [their] not allowing [the removal] of the tanks” and that “Moorhead Oil, Inc., has tried to meet their obligation and does not have any other responsibility on the above location.” In response to this letter, an attorney representing Tollison wrote a letter stating, “I have been asked to contact you . . . in an effort to see that the pumps and underground tanks located on property owned by Commercial Investments, Inc. are safely removed by you or your agent.” However, Moorhead Oil never responded this letter and never removed the tanks.

In 1998, the Department of Health and Environmental Control (DHEC) required Commercial Investments to remove the tanks, and the removal cost Commercial Investments over $34,000.  Commercial Investments filed a complaint against Moorhead Oil on July 31, 2000, claiming breach of contract and breach of contract accompanied by a fraudulent act.  Moorhead Oil moved for summary judgment, arguing the statute of limitations had expired.  The trial court granted the motion, finding the letter from Tollison’s attorney was a “demand letter” that evidenced Commercial Investments’ knowledge of its right to sue, thereby activating the time-clock of the three year statute of limitations.  This appeal follows.


Did the trial court err in finding the statute of limitations began to run when Tollison’s attorney wrote a letter to Moorhead Oil in early 1990 and thus finding Commercial Investments’ cause of action was barred by the statute of limitations?


Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.  George v. Fabri, 345 S.C. 4450, 548 S.E.2d 868 (2001).  In ruling on a motion for summary judgment, the evidence and the inferences which can be drawn therefrom should be viewed in the light most favorable to the non-moving party. Id.  Appellate courts review a motion for summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Bayle v. South Carolina Dept. of Transp., 344 S.C. 115, 120, 542 S.E.2d 736, 738 (Ct. App. 2001).


Commercial Investments alleged two causes of action sounding in contract, both of which are actions at law.  Actions at law must be commenced within three years of when the plaintiff knows, or should have known, it had a legal right to sue for breach of contract or else they are barred by the statute of limitations.  Maher v. Tietex Corp., 331 S.C. 371, 500 S.E.2d. 204 (Ct. App. 1998).  The fundamental test in determining whether a cause of action has accrued is whether the party asserting the claim can maintain an action to enforce it.  Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781 (1962). 

Commercial Investments contends the letter sent by Tollison’s attorney simply conveyed Commercial Investments’ willingness to accommodate Moorhead Oil’s efforts to remove the tanks and it did not demand that Moorhead remove them.  Therefore, the letter does not acknowledge its right to sue.   However, even if we were to believe this interpretation of the attorney’s reply letter, Commercial Investments should have known it had a right to sue once it received notice that Moorhead Oil believed that its responsibility to remove the tanks no longer existed.    Because this notice was received in December of 1989, the three-year statute of limitations had long passed when Commercial Investments filed its complaint against Moorhead Oil. Therefore, the trial court correctly granted summary judgment. See Bayle, 344 S.C. at 120, 542 S.E.2d at 738 (“When plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted.”).

For the foregoing reasons, the decision of the trial court is


HEARN, C.J., GOOLSBY, and SHULER, JJ., concur.