South Carolina Dept. of Highways and Public Transp. v. Manning, 22189

• Decision Date: 02 October 1984
• Docket Number: No. 22189,22189
• Citation: 283 S.C. 394,323 S.E.2d 775
• Court: South Carolina Supreme Court
• Parties: SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Respondent, v. Burwell D. MANNING, Jr., Eastern Corn and Grain Company, Inc. and Farmers Home Administration, Mortgagee, et al., Appellants. (three cases). . Heard

Page 775

323 S.E.2d 775

283 S.C. 394

SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Respondent, v. Burwell D. MANNING, Jr., Eastern Corn and Grain Company Inc. and Farmers Home Administration, Mortgagee et al., Appellants. (three cases).

No. 22189.

Supreme Court of South Carolina.

Heard Oct. 2, 1984.

Decided Nov. 27, 1984.

W. Thomas Vernon and Kermit S. King, of King, Vernon & Gambrell, P.A., for appellants.

Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. M. Richbourg Roberson, and William F. Austin, A. Camden Lewis and Keith M. Babcock, of Austin & Lewis, Columbia, for respondent.

PER CURIAM:

In this condemnation case the South Carolina Department of Highways and Public Transportation, Condemnor-Respondent, has required for public use four parcels of land owned by Burwell D. Manning, Jr. From an award of $446,951 made by a jury after a trial de novo the landowner has appealed. We affirm.

On May 25, 1979, the Department served the landowner with Notice of Condemnation as permitted by § 57-5-320 of the Code of Laws of South Carolina (1976). The Code section allows the Department to "... acquire an easement or fee simple title to real property by gift, purchase, condemnation or otherwise as may be necessary...". For the purpose of condemnation proceedings, § 57-5-390 permits the governor to appoint a list of citizens eligible to serve on condemnation boards for the purpose of appraising and offering to landowners compensation for realty to be acquired. Section 57-5-400 permits the Department to designate from this group three or more individuals to serve for the purpose of appraising and making awards for particular parcels of real estate. Section 57-5-430 directs the Department to give to the landowner fifteen days notice in writing of its intention to condemn. Section 57-5-480 reads as follows:

At any hearing before a condemnation board all persons interested shall have the right to introduce testimony and to be heard in argument upon the matter of compensation and damages. After hearing the evidence and arguments, the board shall render its decision by resolution. The board shall furnish copies of the resolution to the owner and to the Department. The resolution shall contain a statement that any appeal by the landowner shall be served by mail or otherwise upon the Department within twenty days after the receipt of the resolution in accordance with the provisions of § 57-5-500. (Emphasis added)

Section 57-5-500 permits either the landowner or the Department to:

... appeal to the court of common pleas from a decision of the board. Notice and grounds of appeal shall be served by mail or otherwise upon the Department within twenty days after the receipt of the resolution of the condemnation board. The clerk of court shall docket such appeals on calendar number one, and they shall be heard in said court de novo before a jury, unless the right to jury trial be waived, as in other cases provided by law. (Emphasis added)

A Board of Condemnation was appointed by the Department to act on the property involved here and met first on June 12, 1979. All necessary parties were present for the hearing. Routinely, at the end of board meetings, board members agree upon an award and sign a blank resolution which is handed to Mr. Holstein who acts as aid to the board and who is Right-of-Way Engineer for Acquisition and is a regular employee of the Department. The resolution containing the money award is then served on both the Department and the landowner.

On June 12th, the board members signed such a resolution and told Mr. Holstein to fill in the blanks with the appraised value and the award of $1,600,000. Rather than comply with these instructions, Holstein conferred with Chief Commissioner Cobb of the Department and with Attorney Vic Evans of the Office of the Attorney General. They were concerned that such an award might adversely affect federal highway fund contributions.

They called the three board members back into session on June 14th. At this meeting the landowner was not present nor was he represented. Obviously at the instigation of Holstein, Cobb and Evans, an award was made in the amount of $619,000. Holstein completed the new resolution and it was served upon the landowner and on the Department in routine fashion.

The landowner learned of the second meeting and protested. He obviously became aware of the broad discrepancy between the $1,600,000 figure and the $619,000 figure. A third meeting of the board was held on August 7, 1979, at which all parties were in attendance. The board admitted the illegality of its action and agreed to reinstate the original amount of $1,600,000 as being just compensation for the condemned parcels. This resolution was served on both the landowner and the Highway Department. The Department on August 15, 1979, filed its Notice of Intention to Appeal.

I.

This appeal by the Department placed the matter within the jurisdiction of the Court of Common Pleas for a trial de novo before a jury. In that Court, the landowner protested jurisdiction. It was his contention that if the Department wanted to appeal, it had to appeal the award agreed to by the members of the board on June 12, 1979, within twenty days of that date. The issue was referred to the Master-In-Equity and ruled upon by the Honorable Paul M. Moore, Circuit Judge. He ruled that inasmuch as no resolution had been served upon the Highway Department or upon the landowner growing out of the meeting of June 12, 1979, the time for appealing had not commenced to run. He further held that the Department timely appealed from the $1,600,000 resolution growing out of the meeting of August 7, 1979. Exceptions were taken to his Order and preserved for appeal after the trial de novo. We hold that Judge Moore ruled correctly.

Orderly procedure requires that there must be a time from which the right of appeal starts to run. That time is established by § 57-5-500 which we have quoted herein. The landowner contends that the Department through Mr. Holstein knew of the award of June 12th. The landowner further contends that such knowledge was the equivalent of service upon the Department of the resolution which was authorized but never completed. In view of the statute, we think the argument is without merit. Until the resolution is actually served, the time for notice of appeal does not begin to run. South Carolina Highway Department v. Wessinger, 235 S.C. 239, 111 S.E.2d 13 (1959).

We now reach the issues raised incident to the trial de novo conducted by Circuit Judge James E. Moore.

II.

The landowner takes exception to the court's refusal to strike the testimony of Thomas Dyke, an expert witness who testified on behalf of the Department. He is an Urban Planner, Land Planner, Landscape Architect and zoning expert from Illinois. The basis of the objection to the witness's testimony is the fact that he was not a licensed landscape architect in South Carolina under the provisions of § 40-28-20 of our Code. The qualifications of an expert is largely a matter of discretion of the trial judge. Prince v. Associated Petroleum Carriers, 262 S.C. 358, 204 S.E.2d 575 (1974). We find no error.

III.

Counsel for the landowner offered...