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Burke v. The South Carolina Department of Transportation

Court of Appeals of South Carolina

January 15, 2020

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

          Heard October 15, 2019

          Appeal From Aiken County Doyet A. Early, III, Circuit Court Judge.

          James Drayton Nance, of Nance, McCants & Massey, of Aiken, for Appellant.

          Tucker S. Player, of Player Law Firm, LLC, of Columbia, for Respondent.

          HILL, J.

         In this 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.


         John 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.

         After 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.


         This 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.

         There 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).

         Furthermore, 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 domain case").

         The 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 ...

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