Brenco v. SOUTH CAROLINA DEPT. OF TRANSP., No. 3926.

CourtCourt of Appeals of South Carolina
Writing for the CourtSTILWELL, J.
Citation609 S.E.2d 531,363 S.C. 136
PartiesBRENCO, a General Partnership, Appellant, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent.
Decision Date24 January 2005
Docket NumberNo. 3926.

363 S.C. 136
609 S.E.2d 531

BRENCO, a General Partnership, Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent

No. 3926.

Court of Appeals of South Carolina.

Heard October 12, 2004.

Decided January 24, 2005.

Rehearing Denied March 17, 2005.


363 S.C. 139
Howell V. Bellamy, Jr. and Douglas M. Zayicek, both of Myrtle Beach, for Appellant

John B. McCutcheon, Jr., Mary Ruth M. Baxter, and Arrigo P. Carotti, all of Conway, for Respondent.

STILWELL, J.:

Brenco brought this action against the South Carolina Department of Transportation (SCDOT), seeking deed rescission and claiming inverse condemnation. The trial court refused to rescind the deed and found Brenco failed to prove damages related to the inverse condemnation. We affirm in part, reverse in part, and remand.

BACKGROUND

Brenco owns property located along Highway 501 in Horry County. The property was formerly the site of a Brendle's store, which closed in 1997. In 1998, SCDOT purchased 6,689 square feet of Brenco's parking lot in order to build a frontage road. The negotiations and deed referenced aspects of SCDOT's August 18, 1993 road plans for development of the frontage road including the creation of "controlled access facilities" as needed.

After initially alerting them of the project, SCDOT's appraiser, Clyde Ratchford, met with Brenco representatives at the property and provided them with a plan sheet. Although Ratchford admitted the plans could be confusing, the plan sheet showed the property's direct access to Highway 501 would be eliminated and, after construction, access would be to the frontage road. The plan sheet provided to Brenco also was narrow in scope and did not show the plans related to the nearby intersection of George Bishop Parkway and Highway 501, an original alternate means of accessing Brenco's property from the highway. According to Ratchford, the plans

363 S.C. 140
indicated the grade of the road, and thus the property's visibility from the highway, would remain unchanged

The appraisal valued the property taken at $34,700. A diagram attached as an exhibit to the appraisal showed only the property and the portion being taken for the frontage road. It did have an indication of the existing access point, which originally led to Highway 501, but did not specifically show any proposed change. However, language in the appraisal information indicated access would be to the frontage road. Brenco accepted the appraisal and agreed to sell the 6,689 square feet for $34,700.

The final project was completed pursuant to updated 2000 plans instead of the 1993 plans. Rather than being left at grade, Highway 501 was elevated, rendering Brenco's property less visible from the highway.

Brenco then brought this action to rescind the deed on the ground of negligent misrepresentation or unilateral or mutual mistake. Additionally, Brenco sought damages for inverse condemnation.

At trial, Brenco representatives maintained they knew nothing of their loss of access directly onto Highway 501. They asserted they were led to believe they would retain access across the frontage road. However, at least one representative admitted no one asked about access to and from Highway 501 onto the property. Additionally, Brenco questioned whether SCDOT knew about the change in grade or the possibility of such a change and failed to alert Brenco during the 1998 negotiations.

Ratchford indicated he never told Brenco representatives they would retain access to Highway 501. He maintained he showed them the portion of the plan sheet covering their property, which showed the elimination of direct access and provided access to their property only onto the frontage road. In addition, SCDOT offered testimony that although grade studies were being conducted, they learned the project would require elevating the road only after concluding the Brenco transaction.

Brenco offered testimony of two experts regarding the condition and value of the property. Engineer Steve Powell

363 S.C. 141
testified the highest and best use for the property was dramatically and negatively impacted as a result of the change in grade of the road and the elimination of direct access. Appraiser Jim Jayroe testified the property would no longer be usable for retail space, but would instead be classified as light industrial. He testified the negative change in value of the property from before the original taking (the 1998 deed) until after the completion of the project was approximately $1.5 million. However, when asked for a figure of the monetary damage between the 1993 plans and the 2000 plans, he responded: "I don't know."

A second appraiser for SCDOT, Woodrow Willard, testified there was no change in the property's value after Brenco deeded the frontage. He testified any change in grade of the road — the only change he found subsequent to the signing of the deed — was offset by improved access to the property through the use of the frontage road.

In its first order, the trial court refused to rescind the deed, citing Brenco's failure to prove any of its alleged grounds. As to mistake, the court concluded although Brenco representatives may have had an incorrect impression of what access the property would have to Highway 501 after the conveyance, the documents they received from SCDOT established the property would no longer enjoy direct access to the highway. The court also found SCDOT was not then aware the highway's grade would change and thus there was no basis to rescind the deed for negligent misrepresentation.

The court did not dispose of the inverse condemnation action in its first order. Instead, the court sent a letter to counsel indicating it was struggling with the issue of damages and requested a conference on the issue. At the conference, the court considered taking additional testimony regarding damages, and counsel for both parties agreed the court could reopen the record to receive additional testimony. Brenco later moved to reopen the case to offer additional evidence of damages. In a memorandum in support of the motion, Brenco's counsel noted the trial court mentioned during the damages conference that it wanted to hear specific testimony as to the changes between the August 18, 1993 plans and the 2000 implemented plans.

363 S.C. 142
The court later issued an order in which it concluded Brenco failed to establish any damages...

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7 practice notes
  • Cedar Cove Homeowners Ass'n v. DiPietro, No. 4092.
    • United States
    • Court of Appeals of South Carolina
    • 13 Marzo 2006
    ...by injunction, it is in equity, and we may find facts in accordance with our own view of the evidence. Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 142, 609 S.E.2d 531, 534 (Ct.App.2005). We acknowledge the superior position of the trial judge to assess witness credibility. We would not, ......
  • BP Staff, Inc. v. Capital City Ins. Co., 2008-UP-060
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...sound discretion and will not be disturbed on appeal absent an abuse of that discretion." Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. 2005). BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not combinable. ......
  • BP Staff, Inc. v. Capital City Insurance Company, Opinion No. 2008-UP-060 (S.C. App. 1/16/2008), Opinion No. 2008-UP-060.
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...sound discretion and will not be disturbed on appeal absent an abuse of that discretion." Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not combinable. During ......
  • BP Staff, Inc. v. Capital City Ins. Co., 2008-UP-060
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...Department's sound discretion and will not be disturbed on appeal absent an abuse of that discretion.” Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. 2005). BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not comb......
  • Request a trial to view additional results
7 cases
  • Cedar Cove Homeowners Ass'n v. DiPietro, No. 4092.
    • United States
    • Court of Appeals of South Carolina
    • 13 Marzo 2006
    ...by injunction, it is in equity, and we may find facts in accordance with our own view of the evidence. Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 142, 609 S.E.2d 531, 534 (Ct.App.2005). We acknowledge the superior position of the trial judge to assess witness credibility. We would not, ......
  • BP Staff, Inc. v. Capital City Ins. Co., 2008-UP-060
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...sound discretion and will not be disturbed on appeal absent an abuse of that discretion." Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. 2005). BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not combinable. ......
  • BP Staff, Inc. v. Capital City Insurance Company, Opinion No. 2008-UP-060 (S.C. App. 1/16/2008), Opinion No. 2008-UP-060.
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...sound discretion and will not be disturbed on appeal absent an abuse of that discretion." Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not combinable. During ......
  • BP Staff, Inc. v. Capital City Ins. Co., 2008-UP-060
    • United States
    • Court of Appeals of South Carolina
    • 16 Enero 2008
    ...Department's sound discretion and will not be disturbed on appeal absent an abuse of that discretion.” Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 145, 609 S.E.2d 531, 536 (Ct. App. 2005). BP Staff argued in their pre-hearing brief to the ALC that S.B. Phillips and BP Staff were not comb......
  • Request a trial to view additional results

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