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Oien Family Investments, LLC v. Piedmont Municipal Power Agency

Court of Appeals of South Carolina

July 18, 2018

Oien Family Investments, LLC, Appellant,
Piedmont Municipal Power Agency, Respondent. Appellate Case No. 2016-001037

          Heard June 15, 2017

          Appeal From Newberry County R. Lawton McIntosh, Circuit Court Judge

          Thomas H. Pope, III and Kyle B. Parker, of Pope & Hudgens, PA, of Newberry, for Appellant.

          Oscar W. Bannister, Bruce Wyche Bannister, and Luke Anthony Burke, all of Bannister, Wyatt & Stalvey, LLC, of Greenville, for Respondent.

          MCDONALD, J.

         In 2015, Oien Family Investments, LLC (OFI) brought this action against Piedmont Municipal Power Agency (Piedmont), seeking to permanently enjoin Piedmont from condemning a portion of its 116-acre property in Newberry County (the Property). In the alternative, OFI sought an order directing Piedmont to reroute its proposed power transmission line along the southern border of the Property. The circuit court denied OFI's request for injunctive relief, granted Piedmont's motion for a directed verdict, and denied the parties' respective requests for attorney's fees and costs. OFI argues the circuit court erred by (1) failing to properly apply Southern Development v. South Carolina Public Service Authority[1] and (2) failing to find Piedmont violated the applicable industry standard in selecting the route for its high voltage transmission line. Finally, OFI challenges certain circuit court findings as erroneous or internally inconsistent. We affirm in part and vacate in part.

         Facts and Procedural History

         In December 2005, Lynn and June Oien (collectively, the Oiens) purchased the Property for $400, 000.[2] The Oiens made substantial improvements to the Property, such as grading a road, running underground power, and constructing a 7, 000 square foot shop to house track hoes, tractors, mowers, and other equipment. The Oiens invested $160, 000 in the shop, which included a well and septic tank. They also prepared to build their retirement home by clearing timber and grading the land. By the time of the nonjury trial, the Oiens had invested approximately $370, 000 in the Property.

         Piedmont is a joint agency formed by ten upstate municipal electric utilities to purchase wholesale electrical power from Duke Energy. The City of Newberry (City) owns and operates its own electrical distribution system (EDS); it receives service from three Duke Energy "power deliveries." The City's EDS demand peaked in 2012. At this time, Kraft Foods, Piedmont's largest customer and one of the City's largest employers, informed the City that it intended to enlarge its plant and would therefore require additional power. Thereafter, the City sought to install a new substation to increase electrical output and reliability for its customers, including Kraft Foods.[3] The City subsequently partnered with Piedmont to secure the right-of-way for the transmission line needed to energize the new substation.

         On February 28, 2013, Piedmont's consulting engineer, Alan Cobb, issued a report (the Report) to Piedmont's transmission committee recommending a route for the transmission line. The proposed route was to run over two miles through the property of fifteen landowners-including the Oiens-and include poles approximately ninety feet tall. The Report, based in part on Google Earth and Newberry County geographic information system (GIS) maps, considered several factors including: environmental impact, land use, impact to individual landowners, costs for the route, and visual impact. The transmission committee approved the project, including the proposed route, on March 5, 2013. The Piedmont board of directors subsequently voted to build the new transmission line from a nearby Duke Energy line to a new substation near Kraft Foods.

         The Oiens first learned about the project in a February 2013 email from a neighbor, Misty West. West informed the Oiens of the City's plan to construct "a new 100 KW transmission line from the service line near your house to the Kraft plant." West attached a drawing of a proposed route for the transmission line along the southern boundary of the Property and noted she told the City "there is no way [the Oiens] would willingly give [you] an easement to cut [their] property in half." She also told the Oiens someone from the City would contact them regarding the project. After this point, the parties disagree as to the pertinent facts.

         Todd Guy, an electric foreman for the City, testified that he first contacted the Oiens regarding the right-of-way "somewhere around" February 2013. Guy presented the Oiens with the selected route for the transmission line, which went through the middle of the Property (the Middle Route). At the Oiens' request, Guy then presented alternative routes along the Property's southern boundary (the Southern Route) and northern boundary (the Northern Route). He testified the Oiens rejected both potential alternative routes and asked him to again explore the Middle Route.[4] Guy's last contact with the Oiens was through their forester and appraiser, Paul Major, whom the Oiens had engaged to communicate with the City and Piedmont.

         By contrast, Mr. Oien claimed neither the City nor Piedmont reached out to the Oiens. He testified his first contact with the City was in June 2013, when he found a Duke Energy employee on his Property and called Todd Guy. Mr. Oien claimed he never saw any proposed routes, other than the route reflected in West's email attachment, until he met with City representatives in September 2013. Further, Mr. Oien maintains he never rejected the Southern Route. In late September, City representatives met with the Oiens and Major, and the Oiens expressed their preference for the Southern Route.

         On November 26, 2013, representatives from Piedmont and the City met with the Oiens and Major. The Oiens brought their house plans to show Piedmont why the Middle Route was problematic and believed they made clear their desire for the Southern Route. Still, Piedmont indicated it planned to use the Middle Route. Major, on behalf of the Oiens, requested a timber count and values as well as a pole count with proposed pole locations. According to Regier, "the interactions with the Oiens were pretty pleasant. The interactions with Mr. Major were pretty adversarial." Piedmont explained it would need to survey the Middle Route in order to provide the requested information, and Mr. Oien eventually consented to the survey.

         Mike Frazier, Piedmont's Director of Engineering and Power Supply, testified the Oiens agreed to the Middle Route following the November 26, 2013 meeting. Although the Oiens dispute any contention that an agreement was reached at this meeting (or ever), Mr. Oien left the following voicemail for Frazier:

Michael, it's Lynn Oien. We met with you the other day in regard to the power line. We walked it. We made the decision we want to stay with what you have right now that you've originally drawn up as opposed to changing it, so move forward and get final surveying done.

         In early 2014, Piedmont provided the Oiens with the survey results and proposal illustrating the Middle Route. At a March 2014 meeting with the City, the Oiens indicated they would not accept the City's offer and again expressed their desire for the Southern Route. By this point, the City had spent $3, 600, 000 on the new substation and was waiting to have it energized by the new transmission line.

         On August 14, 2014, the Oiens received a right-of-way agreement from Piedmont describing the Middle Route (the Agreement). Piedmont requested that the Oiens either sign the Agreement or otherwise provide a response by August 22. The Oiens rejected the Agreement. On September 29, 2014, the Oiens and their attorney met with representatives from the City to again discuss the route for the proposed transmission line.

         On February 9, 2015, Piedmont served OFI with a notice of condemnation and tender of payment for the "right-of-way and easement to be taken" for constructing the transmission line. OFI then filed an action challenging the condemnation and seeking injunctive relief, attorney's fees, and litigation costs. Piedmont answered and counterclaimed, seeking reasonable costs and litigation expenses.

         Following a nonjury trial, the circuit court directed a verdict in favor of Piedmont. After OFI moved for reconsideration and to alter or amend, the circuit court amended its order, specifying that the Middle Route was the most feasible route for the transmission line. The circuit court denied OFI's subsequent motion to alter or amend.

         OFI appealed and sought entry of a statutory automatic stay, injunction, and supersedeas. That same day, this court granted the statutory stay. Piedmont filed a motion to lift the stay or require the posting of bond. Following oral argument on the motion to lift the stay and the consideration of additional briefing, we lifted the stay.[5]

         Standard of Review

         "An order granting or denying an injunction is reviewed for [an] abuse of discretion." Lambries v. Saluda Cty. Council, 409 S.C. 1, 7, 760 S.E.2d 785, 788 (2014) (quoting Strategic Res. Co. v. BCS Life Ins. Co., 367 S.C. 540, 544, 627 S.E.2d 687, 689 (2006)). "An abuse of discretion occurs when the trial court's decision is based upon an error of law or upon factual findings that are without evidentiary support." Id. (emphasis in original) (quoting Fields v. J. Haynes Waters Builders, Inc., 376 S.C. 545, 555, 658 S.E.2d 80, 85-86 (2008)).

         Southern I, upon which OFI heavily relies, provides a further review framework, explaining:

Southern's action is based upon [section 28-2-470 of the South Carolina Code (1991)] . . . . [, which] provides that a condemnee's action challenging the condemnor's right to condemn must be brought in a separate proceeding from the condemnation action. Under prior [case law], such a proceeding was in equity in the court of common pleas. Since this is an equitable action for an injunction this court may review the findings of fact of the [circuit court] based upon our own view of the preponderance of the evidence.

         305 S.C. at 509, 409 S.E.2d at 429 (citation omitted); see also Lambries, 409 S.C. at 8, 760 S.E.2d at 788 ("We find that, while an injunction is equitable and subject to the trial court's discretion, [when] the decision turns on statutory interpretation . . . this presents a question of law. As a result, this Court need not give deference to the trial court's interpretation."). However, unlike the analyses in Southern I and Lambries, the circuit court's decision in this case did not turn on statutory interpretation. Additionally, OFI conceded at oral argument that "abuse of discretion" is the appropriate standard of review. Thus, while we review the circuit court's order denying injunctive relief for an abuse of discretion, we must keep in mind the caution that our courts "will not interfere with the exercise of the condemnation power unless the condemning authority has acted in bad faith, fraudulently, or with a clear abuse of discretion." Southern I, 305 S.C. at 515, 409 S.E.2d at 433.

         Law and Analysis

         I. ...

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