John Burke, William Burt, Sr., Thomas Cooper, Mike Ellison, Harold J. Hanson, David McKee, Plaintiffs,
The South Carolina Department of Transportation, Appellant. Of whom John Burke is the Respondent, Appellate Case No. 2017-001881
October 15, 2019
From Aiken County Doyet A. Early, III, Circuit Court Judge.
Drayton Nance, of Nance, McCants & Massey, of Aiken, for
S. Player, of Player Law Firm, LLC, of Columbia, for
appeal, we must decide whether prejudgment interest in an
inverse condemnation case is a question for the jury or the
court. We conclude it is one for the court and affirm the
trial court's award of prejudgment interest.
Burke sued the South Carolina Department of Transportation
(SCDOT) alleging it had inversely condemned his property
during construction on the I-520 bypass in Aiken County. At
trial, the circuit court did not instruct the jury on
prejudgment interest nor did Burke or SCDOT request such an
instruction as part of the definition of just compensation.
The jury awarded Burke $134, 000 as just compensation.
trial, Burke asked the trial court to award him prejudgment
interest. The trial court found the date of taking to be the
date Burke commenced his lawsuit, and awarded him prejudgment
interest. In calculating the interest, the trial court relied
on section 28-2-420 of the South Carolina Eminent Domain
Procedure Act (2007) (the Act), which states "[a]
condemnor shall pay interest at the rate of eight percent a
year upon sums found to be just compensation by the appraisal
panel or judgment of a court to the condemnee." SCDOT
now appeals, contending only the jury may award interest in
inverse condemnation cases.
appeal presents a novel issue of law, which we decide de
novo. See I'On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 718-19
(2000). Inverse condemnation is a common law action derived
from the takings clause of our state and federal
constitutions. Vick v. S.C. Dep't of Transp.,
347 S.C. 470, 480, 556 S.E.2d 693, 698 (Ct. App. 2001);
see also Cobb v. S.C. Dep't of Transp., 365 S.C.
360, 364, 618 S.E.2d 299, 301 (2005) (noting inverse
condemnation cases and eminent domain proceedings are
"treated alike under the takings clause of our State
Constitution," but acknowledging inverse condemnation is
a common law cause of action). Inverse condemnation occurs
when the normal condemnation procedure is inverted: the
government has taken private property without initiating the
formal condemnation process of the Act. See Georgetown
Cty. v. Davis & Floyd, Inc., 426 S.C. 52, 61, 824
S.E.2d 471, 476 (Ct. App. 2019), cert. granted, SC
Sup. Ct. order dated Aug. 5, 2019. SCDOT concedes Burke is
entitled to prejudgment interest, but argues that in an
inverse condemnation action only the jury can award it.
is considerable tension in our inverse condemnation
precedent. In Vick-the sole authority SCDOT relies
upon-this court held the Act's provision on interest does
not apply to inverse condemnation actions. 347 S.C.
at 479-81, 556 S.E.2d at 698-99. Vick did not hold
that prejudgment interest was exclusively a jury question; it
found the trial court did not err in charging the jury it
could consider interest as part of its just compensation
award. See id. at 484 n.3, 556 S.E.2d at 701 n.3.
The court in Vick suggested South Carolina State
Highway Department v. Miller, 237 S.C. 386, 117 S.E.2d
561 (1960), "implies that interest recoverable in
inverse condemnation actions is an issue to be charged to the
jury for its determination as a measure of damages." 347
S.C. 481, 556 S.E.2d at 699. Miller assumed
"without deciding" that interest was recoverable in
a condemnation action. 237 S.C. at 392, 117 S.E.2d at 564.
Yet a year after Miller (which was not an inverse
case), the court ruled interest was not recoverable at all in
condemnation actions. S.C. State Highway Dep't v. S.
Ry. Co., 239 S.C. 1, 5-6, 121 S.E.2d 236, 238 (1961).
This did not change until 1987 when the Act became law and
included an interest recovery provision. See S.C.
Dep't of Transp. v. Faulkenberry, 337 S.C. 140,
150-51, 522 S.E.2d 822, 827-28 (Ct. App. 1999) (discussing
history of interest recovery in condemnation cases).
four years after Vick, our supreme court in
Cobb held the Act's provision of a right to a
jury trial applies to inverse condemnation actions. See
Cobb, 365 S.C. at 365, 618 S.E.2d at 301 (concluding the
Act is applicable to the inverse condemnation right to a jury
trial "[i]n light of the historical treatment of an
inverse condemnation action as equivalent to an eminent
Fourth Circuit has stated, in the context of an inverse
condemnation claim based on the fifth amendment takings
clause of the federal constitution, that "[i]nterest, as
an element of just compensation, ordinarily should be
determined by the trier of fact." Tony Guiffre
Distrib. Co., Inc. v. Washington Metro. Area Transit
Auth., 740 F.2d 295, 298 (4th Cir. 1984) (affirming the
denial of prejudgment interest when the issue was first
raised by post-trial motion). We have held, though, that the
appropriateness of a statutory award of ...