South Carolina Dept. of Highways and Public Transp. v. Galbreath, 2023

• Decision Date: 01 June 1993
• Docket Number: No. 2023,2023
• Citation: 315 S.C. 82,431 S.E.2d 625
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Condemnor, Respondent, v. H.C. GALBREATH, Landowner, Appellant, and First National Bank of Pickens County, Other Condemnee-Mortgagee.

Page 625

431 S.E.2d 625

315 S.C. 82

SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION, Condemnor, Respondent, v. H.C. GALBREATH, Landowner, Appellant, and First National

Bank of Pickens County, Other Condemnee-Mortgagee.

No. 2023.

Court of Appeals of South Carolina.

Submitted May 10, 1993.

Decided June 1, 1993.

J. Redmond Coyle and R. Murray Hughes, Pickens, for appellant.

Linda C. McDonald, Columbia, for respondent.

GOOLSBY, Judge:

In this condemnation case, the South Carolina Department of Highways and Public Transportation condemned part of the property upon which H.C. Galbreath, the landowner, owned and operated a Western Auto Store. The jury awarded Galbreath $13,001, and he moved for a new trial. The trial court denied the motion, and Galbreath made a second new trial motion based upon alleged disqualification of one of the jurors. The court denied that motion and Galbreath appeals. We affirm. ¹

I.

Galbreath first argues the trial court erred in granting the Department's motion in limine to exclude the testimony of an economist, Charles Alford. Galbreath intended to call Alford to testify that Galbreath would lose about $68,000 over his lifetime from the loss of an area he used to display and sell riding lawn mowers and garden tractors. Galbreath recognized lost profits are not recoverable as an independent element of damage, but he wanted to present the evidence to establish that his business was a "good" business, that is, profitable, so that the jury could assess damages based upon the property's highest and best use. The trial court ruled the evidence of exact profits was irrelevant but that Galbreath could present general evidence that sales were made and profits would be lost because of his inability to display tractors and riding mowers for sale. ²

Galbreath subsequently presented the testimony of Louis White, a real estate appraiser. White valued the property prior to the taking for First Federal Savings Bank in connection with a loan application Galbreath made. He stated the property had a value of $164,000 before the taking. White stated he considered the loss of the display area for the tractors and riding mowers as well as the lost parking in arriving at a figure of $28,000 for diminution in the property's value.

Galbreath testified he sold $60,000 worth of tractors for fifteen years, but because of the condemnation he lost space for the display of tractors. He stated he "[had] reduced $30,000 worth of tractors from Toro Company, and ... ha[d] reduced [his] Western Auto Sears tractors from sixty thousand to forty thousand for 1992." Galbreath further testified he had built his tractor sales to a point where he sold between 38 and 40 per cent of the Pickens County market prior to the taking. Galbreath projected a 25 per cent decrease in overall sales for 1992. He stated a 40 per cent cut in tractor sales would reduce his overall profit by 60 per cent. Finally, Galbreath testified the value of his business had been "cut in half" because of the condemnation and his property had suffered $100,000 in damages.

In South Carolina State Highway Dep't v. Bolt, 242 S.C. 411, 131 S.E.2d 264 (1963), the Supreme Court stated:

[A]lthough the value of a business which is being conducted upon the real property condemned may not ordinarily be added to the market value of the realty as damages for a taking, the fact that a given business is in operation on the property should be taken into consideration in determining the market value of the real property if in truth it is a factor in establishing that market value--if, that is, the use of the real property for that purpose enhances the value of it. In particular, it is proper to take into consideration the existence of a going business on the land in question as indicative of the highest economic use to which the land may be put.

Id. at 418, 131 S.E.2d at 267 (citations omitted) (quoting Housing Auth. of Bridgeport v. Lustig, 139 Conn. 73, 90 A.2d 169, 171 (1952)). The Supreme Court added:

In accord with the foregoing rule the appellant was permitted to introduce testimony to the effect that he had been operating a successful commercial chicken farm on the property in question for a period of twelve years, that the property had been developed for this business, and that this represented its most advantageous and profitable use. While the lower court refused to allow loss of business as an independent element of damage, the jury was instructed that the foregoing testimony, together with the testimony as to the injury to such business by reason of the acquisition of a part of the property, might properly be considered in determining the fair market value of the property before and after the taking. The lower court ... properly instructed the jury as follows:

"... [I]f you find that in this case this was a good chicken farm you could take that into consideration in determining what its reasonable fair market value was before the taking, and if you find that it is not a good chicken farm after the road was constructed, then you could take that into consideration in determining what that property was worth just after the taking."

The lower court properly refused to allow loss of business as an independent element of damage in this case, and properly limited the consideration by the jury of such testimony to its effect upon the market value of the property.

Id. 242 S.C. at 419, 131 S.E.2d at 267-68.

The conduct of trial, including the admission and rejection of testimony, is largely within the trial judge's sound discretion, the exercise of which will not be disturbed on appeal absent an abuse of that discretion or the commission of legal error that results in prejudice for the appellant. State v. Johnson, --- S.C. ----, ----, 427 S.E.2d 718, 719 (Ct.App.1993). Even if the trial court erred in excluding evidence, there is no reversible error where the testimony would have been cumulative. Goddard v. Fairways Development General Partnership, --- S.C. ----, ----, 426 S.E.2d 828 (Ct.App.1993).

We hold, therefore, that even if Alford's testimony would have been admissible under Bolt with a limiting instruction that it could only be considered for evaluating whether he had a "good" business prior to the taking, the testimony would have been cumulative in that regard to the testimony of White (loss of $28,000 market value considering loss of display area of tractors and access to the business) and Galbreath (sales of 38 per cent to 40 per cent in Pickens County prior to the taking; business value cut in half by the taking; $100,000 damage to business by the taking; loss...