S.C. Dep't of Transp. v. Powell
| Decision Date | 08 August 2018 |
| Docket Number | Appellate Case No. 2016-000594,Opinion No. 27827 |
| Court | South Carolina Supreme Court |
| Parties | SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent, v. David Franklin POWELL, Petitioner. |
Howell V. Bellamy, Jr. and Robert S. Shelton, both of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, P.A., of Myrtle Beach, for Petitioner.
John B. McCutcheon, Jr., of Thompson & Henry, PA, of Conway, and Beacham O. Brooker, Jr., of Brooker Law Offices LLC, of Columbia, for Respondent.
In this case we review the propriety of a grant of partial summary judgment in a condemnation action. The court of appeals affirmed the circuit court's ruling that the landowner, David Powell, was not entitled to compensation for any diminution in value of his remaining property due to the rerouting of a major highway which previously was easily accessible from his property. S.C. Dep't of Transp. v. Powell , 415 S.C. 299, 781 S.E.2d 726 (Ct. App. 2015). We reverse and remand for a jury trial.1
South Carolina Department of Transportation (SCDOT) condemned a portion of Powell's 2.5 acre property in connection with its upgrade to U.S. Highway 17 Bypass (the Bypass) near the Backgate area of Myrtle Beach. His unimproved parcel, located on the corner of Emory Road and Old Socastee Highway, was originally separated from the Bypass by a power line easement and a frontage road; access to that major thoroughfare was via Emory Road, which intersected with the Bypass. Because Powell's property was zoned "highly commercial," his easy access to the Bypass significantly enhanced its value.
To improve traffic flow in the area, SCDOT converted the Bypass into a controlled access highway whereby entrance and exit ramps provided the only access to motorists. These ramps alleviated the need for several intersections, including the intersection of Emory Road and the Bypass (the Intersection), which SCDOT subsequently closed. To facilitate the closure of the Intersection, SCDOT filed a condemnation notice in August of 2010, informing Powell of its plan to acquire 0.183 acres of his property to reroute the abutting road.
SCDOT's expert appraiser, Corbin Haskell, authored three reports, each estimating Powell's loss between $68,000 and $71,000. Rather than accepting SCDOT's offer of compensation, Powell demanded a jury trial pursuant to Section 28-2-310 of the South Carolina Code (2007). A few days before the commencement of trial, SCDOT informed Powell's attorney that the construction plans had changed, with SCDOT deciding to eliminate the frontage road and turn it into a cul-de-sac. As a result, SCDOT moved for a continuance, allowing Haskell time to draft a fourth report that accounted for the cul-de-sac. According to the new construction plan, access from the Bypass to Powell's property would be substantially restricted. Travelers on the Bypass could reach Powell's property via the Farrow Parkway exit south of the property and travel north for about one mile, or they could exit one mile north of Powell's property and travel south, a distance of 2.24 miles for northbound travelers and 1.25 miles for southbound travelers.
In Haskell's fourth report, he appraised the 0.183 acres at $72,000; however, he opined the closure of the Intersection and the addition of the cul-de-sac would cause a fifty percent diminution in value to the remaining property. He calculated this substantial loss in value to the remainder at $445,000, bringing the total projected compensation to $517,000. When Haskell submitted the report to SCDOT, counsel for SCDOT informed him that Powell was not entitled to compensation for the loss of indirect access to the Bypass. As a result, SCDOT sought to withdraw his fourth report and replace it with a fifth appraisal, correcting what it viewed as compensation for a loss not cognizable under the law. Thereafter, following the instructions from SCDOT's attorney, Haskell revised his figure to $72,000 and issued his fifth report, returning to his original finding that Powell only was entitled to compensation for the loss of 0.183 acres. SCDOT then filed a motion in limine to exclude Haskell's report which estimated compensation at $517,000. With the parties' consent, the circuit court converted the motion in limine into a motion for partial summary judgment so as to permit an immediate appeal, and ruled that under Hardin ,2 the loss of indirect access to the Bypass was not compensable even though the court acknowledged the remainder of Powell's property would suffer a diminution in value.
The court of appeals affirmed, holding that although the circuit court erred in its application of Hardin , it nevertheless reached the proper conclusion that the loss of indirect access to the Bypass was not compensable. Powell , 415 S.C. at 306–07, 781 S.E.2d at 730.
Specifically, the court of appeals relied on South Carolina State Highway Department v. Carodale Associates , 268 S.C. 556, 235 S.E.2d 127 (1977), where this Court held a landowner could recover for damages derived from the physical appropriation of his property, but he could not recover for the diversion of traffic flow as a result of SCDOT's decision to reconfigure an abutting road under the state's police powers. Additionally, the court of appeals distinguished South Carolina State Highway Department v. Wilson , 254 S.C. 360, 175 S.E.2d 391 (1970), where this Court held the landowner could not only recover for the direct taking, but also for loss of access when SCDOT blocked off a median, under the rationale that but for the direct taking, no loss of access to the abutting roadway would have occurred. The court of appeals ultimately concluded this case aligned more with Carodale than with Wilson because SCDOT's decision to close the Intersection was independent, and not incidental, to its eminent domain power. Powell , 415 S.C. at 310, 781 S.E.2d at 731. Finding that South Carolina Code Section 28-2-370 (2007) permits the consideration of any diminution in the value when determining just compensation for a taking, we now reverse for a jury to determine the amount of damages Powell is entitled to receive from SCDOT.
An appellate court reviews a motion for summary judgment under the same lens employed by the circuit court whereby all facts are viewed in favor of the nonmoving party. Carolina Chloride, Inc. v. S.C. Dep't of Transp. , 391 S.C. 429, 434, 706 S.E.2d 501, 504 (2011). Summary judgment should not be granted if further development of the facts would assist in the application of the law. Mosteller v. Cty. of Lexington , 336 S.C. 360, 362, 520 S.E.2d 620, 621 (1999). The interpretation of a statute is a question of law reviewed de novo. Town of Summerville v. City of N. Charleston , 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008).
We begin our analysis with the South Carolina Constitution, which states, "[P]rivate property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made for the property." S.C. Const. art. I, § 13. Prior to the adoption of our state constitution, the State exercised the power of eminent domain by taking private property without compensating its owner. S.C. State Highway Dep't v. Miller , 237 S.C. 386, 390, 117 S.E.2d 561, 562 (1960). In Section 28-2-370 of the South Carolina Code (2007), the General Assembly established how just compensation should be ascertained in an eminent domain proceeding: "In determining just compensation, only the value of the property to be taken, any diminution in the value of the landowner's remaining property, and any benefits as provided in Section 28-2-360 may be considered." Powell asserts the court of appeals erred in upholding the circuit court's order for summary judgment because under the plain language of this statute, he is entitled to any diminution in value to the remaining property as a result of the taking. Powell's argument is that because SCDOT acquired a portion of his property through condemnation—admittedly a taking—our analysis is different than that employed in determining whether a taking has occurred. See Hilton Head Auto., LLC v. S.C. Dep't of Transp. , 394 S.C. 27, 33, 714 S.E.2d 308, 311 (2011) ( ). Because our focus should be only on the damages that arise from the taking, Powell argues that section 28-2-370 allows him to present to the jury evidence of the diminution in value of the remainder of his property.
SCDOT, on the other hand, urges a more restrictive interpretation of the just compensation statute whereby only damages resulting from the actual taking of the 0.183 acres are recoverable. To support its reading of section 28-2-370, SCDOT points to this Court's construction of a prior statute3 governing compensation for takings. S.C. State Highway Dep't v. Bolt , 242 S.C. 411, 417, 131 S.E.2d 264, 267 (1963) ( ). Essentially, SCDOT contends the analysis of whether a taking has occurred must be conducted with respect to each action that produces a diminution of value in the remaining property. Under SCDOT's theory, there are two distinct actions here: (1) the physical appropriation of 0.183 acres, and (2) the closure of the Intersection and the creation of the cul-de-sac. According to SCDOT, while the first act constitutes a taking, the second does not, and therefore, the statute governing compensation applies only to the first action.
Finally, SCDOT argues that under this Court's jurisprudence, whether...
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