Frampton v. S.C. Dep't of Transp.

• Decision Date: 25 August 2014
• Docket Number: No. 5181.,5181.
• Citation: 752 S.E.2d 269,406 S.C. 377
• Court: South Carolina Court of Appeals
• Parties: Henry W. FRAMPTON, III, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant. Appellate Case No. 2012–209046.

406 S.C. 377

752 S.E.2d 269

Henry W. FRAMPTON, III, Respondent,

v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.Appellate Case No. 2012–209046.

No. 5181.

Court of Appeals of South Carolina.

Heard Sept. 12, 2013.

Decided Oct. 30, 2013.

Rehearing Denied Dec. 19, 2013.

Certiorari Denied Aug. 25, 2014.

Beacham O. Brooker, Jr., of Columbia, for Appellant.

Richard D. Bybee and Michael Brent McDonald, both of Smith Bundy Bybee & Barnett, PC, of Mount Pleasant, for Respondent.

LOCKEMY, J.

In this inverse condemnation case, the South Carolina Department of Transportation (DOT) appeals the judgment in favor of Henry W. Frampton, III. DOT first argues the trial court's decision to seat the jury during the takings phase of the trial was unduly prejudicial and deprived it of a mode of trial to which it was entitled. Additionally, DOT argues (1) Frampton did not prove any facts that would constitute a taking of property; (2) the trial court did not apply the appropriate law in its finding of a taking; (3) the compensation verdict exceeded any credible evidence of Frampton's loss; and (4) Frampton was not entitled to attorney's fees and costs under the governing statute. We find certain arguments are not preserved for our review, and we affirm the remaining issues.

FACTS

In 2005, DOT began planning for a bridge improvement project located at Ellis Creek on James Island. The bridge spanned over the property at issue, 699 Folly Road (699 Folly). 699 Folly was located on the north side of and immediately adjacent to Ellis Creek, and it contained a small rental home. Frampton and his wife lived at 693 Folly Road (693 Folly), which was immediately adjacent to 699 Folly, and the Framptons also owned the property at 685 Folly Road (685 Folly). During DOT's initial planning, 699 Folly and 693 Folly existed as one tract of land. The rental home on 699 Folly had always contained a separate driveway and been used as a separate income producing property. During DOT's project, Frampton partitioned the tract of land, creating two separate properties.

Robert Larry Phinney operated as DOT's right-of-way agent ¹ during the bridge improvement project, and he testified the original construction plans included a permanent guardrail extending from the bridge and continuing to 693 Folly's driveway. As a result of Frampton's division of his tract of land, the guardrail denied all access between 699 Folly and Folly Road. After Phinney discussed the access issues with DOT's engineers, the engineers explained the length of the guardrail could not be avoided.

To address the access issues, DOT wanted to create a “T” drive, where access to 699 Folly would require entering Frampton's driveway at 693 Folly and then turning ninety degrees into 699 Folly. DOT believed this would provide adequate access. However, Frampton exercised his rights as the landowner and refused to grant DOT any driveway permission to allow access from 693 Folly's driveway to 699 Folly. DOT then refused to exercise its option of condemning Frampton's access rights.

DOT granted Cape Romain Contractors the contract for the project, and construction started in 2007 on the southern side of Ellis Creek at Folly Road. In October of 2008, construction began on the northern side of Ellis Creek immediately adjacent to 699 Folly. A median was ultimately placed in the center of Folly Road though it was not present in the initial plans.

Frampton alleged there were many actions that blocked access from 699 Folly to Folly Road, including the placement of orange construction fencing, silt fencing, and concrete barriers in November of 2008. The concrete driveway that provided access to 699 Folly as well as the adjacent curb and gutter were removed in November and December of 2008. New sewer pipe trenches were excavated and new sewer pipes installed across the former driveway for 699 Folly. DOT constructed a new sidewalk, curb, and gutter in January of 2009 in front of 699 Folly along its boundary line with Folly Road, and Frampton alleged it also blocked all access from Folly Road to 699 Folly. Further, the area in front of 699 Folly and its driveway was used as a “lay down area” for equipment throughout the construction project, which further blocked any access.

Around June of 2009, DOT agreed to shorten the guardrail from the initial length and create a turnaround area for 699 Folly to allow access to Folly Road. However, because concrete for a sidewalk and curb had already been poured in front of 699 Folly's existing driveway, the concrete had to be torn out in order to reestablish access from 699 Folly to Folly Road. DOT finally restored access to 699 Folly in January of 2010 after a series of grading, drainage, and pothole problems were addressed pursuant to state law. SeeS.C.Code Ann. § 57–5–1140 (2006) (setting forth the requirements for installing residential rights-of-way entrances and aprons to state highways).

As a result of the construction activities and access issues, the tenant occupying 699 Folly vacated the premises in October of 2008 before his lease ended. Frampton asserted that DOT's construction and blockage of access to 699 Folly prevented him from renting the home after the tenant vacated the property. Once access was restored, Frampton rented 699 Folly in March of 2010 after a short marketing period. The tenant who vacated 699 Folly during DOT's construction paid Frampton $950 a month in rent. Frampton confirmed that some deferred maintenance was performed on the rental home at 699 Folly during the construction. After the construction was completed, Frampton's tenant paid $1150 a month starting in March of 2010.

Frampton filed his initial summons and complaint on September, 29, 2009, claiming inverse condemnation and constitutional torts, and DOT filed its initial answer on November 3, 2009. On June 17, 2011, DOT filed a motion to transfer the case to the non-jury docket. The trial court denied the motion in a Form 4 order dated September 28, 2011. Frampton amended his complaint on December 14, 2011, and DOT responded by filing an amended answer on February 3, 2012.

At the beginning of the trial, DOT asked the trial court to postpone seating a jury until the trial court decided whether, as a matter of law, a taking had occurred. Until that determination was made, DOT argued a jury trial was improper. The trial court viewed the motion as one to bifurcate the trial into a separate taking and compensation phase and denied the motion. ²See Cobb v. S.C. Dep't of Transp., 365 S.C. 360, 365, 618 S.E.2d 299, 301 (2005) (explaining that in an inverse condemnation case, the trial court will first determine whether a claim has been established, and then, the issue of compensation may be submitted to a jury at either party's request). The trial court stated it would later determine what issues, if any, would be submitted to the jury.

After both parties' presentation of testimony relating to the alleged taking, the trial court removed the jury from the court room to announce its ruling. Frampton contended as part of the physical taking of his property, he was allowed to argue to the jury that he suffered damages from the median as an incidental part of the whole construction. The trial court rejected his argument and found the median in and of itself was not a taking. Moreover, the trial court stated it did not believe Frampton “could piggyback” the issue of the median with the blocking of 699 Folly's access.³ The trial court then found by a preponderance of the evidence that “the drive to 699 [Folly], the access to 699 [Folly], was blocked by the actions of DOT for sixteen months,” from November of 2008 through February 2010. The only issue submitted to the jury was “how much [Frampton] lost as a result of the taking” during the sixteen months.

The trial court proceeded with the compensation phase of the trial and requested the jury be seated again. Frampton qualified a real estate appraiser, Thomas Hartnett, as an expert in real estate and banking, to estimate the damages Frampton incurred from the taking. Harnett acknowledged Frampton leased 699 Folly for only $950 a month prior to the taking and then $1150 a month after the taking, but he testified that contract rent and market rent are two separate calculations and can be different. Harnett testified the market value of 699 Folly was $250,000. Further, he stated eight percent was a fair investment return on 699 Folly, which equaled $20,000 a year, or $1,666.67 a month. He explained that a person would expect an increased return from a rental property versus money deposited in a bank because there are additional costs and risks involved with maintaining a rental property. Harnett estimated Frampton's total loss equaled $26,666.67 for the sixteen months that the access of easement was taken at 699 Folly. Then, Harnett calculated the present value of the total loss using the statutory interest rate of eight percent and stated the loss at present value equaled $31,104. Next, Harnett calculated the present value with a statutory interest rate of eight percent for the invoices reflecting Frampton's costs in relocating and restoring 699 Folly's driveway as well as Frampton's utility bills for the time 699 Folly was vacant, and the damages totaled $4,473.44.

The jury awarded $36,527 in favor of Frampton. DOT filed a 59(e), SCRCP motion arguing the trial court erred in (1) failing to separate the proceedings into a non-jury takings phase and jury compensation phase, (2) failing to apply the correct case law from Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and (3) finding the taking endured for sixteen months. The trial court denied the motion, and this appeal followed.

STANDARD OF REVIEW

“An action brought by a property owner against a [governmental entity] for the taking of the owner's property without just compensation is an action at law.” Sea Cabins...