Burke v. S.C. Dep't of Transp., Appellate Case No. 2017-001881

CourtCourt of Appeals of South Carolina
Writing for the CourtHILL, J.
Citation429 S.C. 319,838 S.E.2d 534
Parties John BURKE, William Burt, Sr., Thomas Cooper, Mike Ellison, Harold J. Hanson, David McKee, Plaintiffs, Of whom John Burke is the Respondent, v. The SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.
Docket NumberOpinion No. 5709,Appellate Case No. 2017-001881
Decision Date15 January 2020

429 S.C. 319
838 S.E.2d 534

John BURKE, William Burt, Sr., Thomas Cooper, Mike Ellison, Harold J. Hanson, David McKee, Plaintiffs,

Of whom John Burke is the Respondent,
v.
The SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.

Appellate Case No. 2017-001881
Opinion No. 5709

Court of Appeals of South Carolina.

Heard October 15, 2019
Filed January 15, 2020


James Drayton Nance, of Nance, McCants & Massey, of Aiken, for Appellant.

Tucker S. Player, of Player Law Firm, LLC, of Columbia, for Respondent.

HILL, J.:

429 S.C. 320

In this appeal, we must decide whether prejudgment interest in an inverse condemnation case is a question for the jury or the court. We conclude it is one for the court and affirm the trial court's award of prejudgment interest.

I.

John Burke sued the South Carolina Department of Transportation (SCDOT) alleging it had inversely condemned his property during construction on the I-520 bypass in Aiken

429 S.C. 321

County. At trial, the circuit court did not instruct the jury on prejudgment interest nor did Burke or SCDOT request such an instruction as part of the definition of just compensation. The jury awarded Burke $134,000 as just compensation.

After trial, Burke asked the trial court to award him prejudgment interest. The trial court found the date of taking to be the date Burke commenced his lawsuit, and awarded him prejudgment interest. In calculating the interest, the trial court relied on section 28-2-420 of the South Carolina Eminent Domain Procedure Act (2007) (the Act), which states "[a] condemnor shall pay interest at the rate of eight percent a year upon sums found to be just compensation by the appraisal panel or judgment of a court to the condemnee." SCDOT now appeals, contending only the jury may award interest in inverse condemnation cases.

II.

This appeal presents a novel issue of law, which we decide de novo . See I'On, L.L.C. v. Town of Mt. Pleasant , 338 S.C. 406, 411, 526 S.E.2d 716, 718–19 (2000). Inverse condemnation is a common law action derived from the takings clause of our state and federal constitutions. Vick v. S.C. Dep't of Transp. , 347 S.C. 470, 480, 556 S.E.2d 693, 698 (Ct. App. 2001) ; see also Cobb v. S.C. Dep't of Transp. , 365 S.C. 360, 364, 618 S.E.2d 299, 301 (2005) (noting inverse condemnation cases and eminent domain proceedings

838 S.E.2d 536

are "treated alike under the takings clause of our State Constitution," but acknowledging inverse condemnation is a common law cause of action). Inverse condemnation occurs when the normal condemnation procedure is inverted: the government has taken private property without initiating the formal condemnation process of the Act. See Georgetown Cty. v. Davis & Floyd, Inc. , 426 S.C. 52, 61, 824 S.E.2d 471, 476 (Ct. App. 2019), cert. granted , S.C. Sup. Ct. order dated Aug. 5, 2019. SCDOT concedes Burke is entitled to prejudgment interest, but argues that in an inverse condemnation action only the jury can award it.

There is considerable tension in our inverse condemnation precedent. In Vick —the sole authority SCDOT relies upon—this court held the Act's provision on interest does not apply to inverse condemnation actions.

429 S.C. 322

347 S.C. at 479–81, 556 S.E.2d at 698–99. Vick did not hold that prejudgment interest was exclusively a jury question; it found the trial court did not err in charging the jury it could consider interest as part of its just compensation award. See id. at 484 n.3, 556 S.E.2d at 701 n.3. The court in Vick suggested South Carolina State Highway Department v. Miller , 237 S.C. 386, 117 S.E.2d 561 (1960), "implies that interest recoverable in inverse condemnation actions...

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1 practice notes
  • Carter v. Bryant, Appellate Case No. 2016-002556
    • United States
    • Court of Appeals of South Carolina
    • 15 d3 Janeiro d3 2020
    ...what Deputy Gwinn actually swore to under oath. Deputy Gwinn testified he presented his entire case investigation to Magistrate Yard, and 838 S.E.2d 534 Yard typed up the warrant, which Deputy Gwinn signed and swore to. In the warrant, Deputy Gwinn stated under oath that his belief in proba......
1 cases
  • Carter v. Bryant, Appellate Case No. 2016-002556
    • United States
    • Court of Appeals of South Carolina
    • 15 d3 Janeiro d3 2020
    ...what Deputy Gwinn actually swore to under oath. Deputy Gwinn testified he presented his entire case investigation to Magistrate Yard, and 838 S.E.2d 534 Yard typed up the warrant, which Deputy Gwinn signed and swore to. In the warrant, Deputy Gwinn stated under oath that his belief in proba......

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