Williamson v. County of Orangeburg

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

John
Williamson, III and Kathryn J. Williamson, Appellants,

v.

The County of
Orangeburg, Respondent.

Appeal From Orangeburg County

 Olin D. Burgdorf, Master-in-Equity

Unpublished Opinion No. 2011-UP-052

Heard November 3, 2010 – Filed February
10, 2011   

AFFIRMED

Wm. Howell Morrison and Phyllis W. Ewing, both of Charleston; for
Appellants.

D'Anne Haydel and Paul D. de Holczer, both
of Columbia; for Respondents.

FEW, C.J.: The Williamsons challenged Orangeburg
County's decision to condemn their property on the South Fork of the Edisto
River for use as a public boat landing pursuant to section 4-9-30(4) of the
South Carolina Code (Supp. 2010).  The master-in-equity upheld the County's
decision.  The Williamsons appeal (1) the exclusion of newspaper articles from
evidence and (2) the master's condemnation decision.  We affirm.

I.  Admissibility
of Newspaper Articles

"The admission of evidence is a matter
left to the discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion."  Historic
Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 434, 673 S.E.2d 448, 457
(2009).  "An abuse of discretion occurs when the ruling is based on an
error of law or a factual conclusion that is without evidentiary support.      . . . To warrant reversal based on the admission
or exclusion of evidence, the appellant must prove both
the error of the ruling and the resulting prejudice    . . . ."  Fields v. Reg'l Med. Ctr.
Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005) (internal citations
omitted).

The Williamsons
contend the master erred in excluding three newspaper articles from evidence that
contained statements of county employees.  They argue the articles are not
hearsay because they were not offered for their truth, but rather as proof that
the County acted in bad faith and abused its discretion in deciding to condemn
their property.  Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted.  Rule 801(c), SCRE.  This case presents us with a
double hearsay situation.  To illustrate, "(county employee statements)"
are the first level of hearsay and "The witness said . . ." is the
second level of hearsay.[1] 

Consequently, for the
newspaper articles to be admissible, after determining whether each level is
actually hearsay, we must assess whether each level falls within an exception
to the hearsay rule.  See Bain v. Self Mem'l Hosp., 281 S.C. 138,
145, 314 S.E.2d 603, 608 (Ct. App. 1984) ("[T]he general rule is that
hearsay included within hearsay is not excluded if each part of the combined
statements falls within some exception.").  The actual out-of-court
statements made by county employees concerning the condemnation decision are
the first level, and we conclude are not hearsay because they are admissions by
a party opponent under Rule 801(d)(2)(A), (C), or (D), SCRE.  The second level
is the statement by the newspaper asserting that a witness made a statement;
therefore, these are offered to prove the truth of the matter asserted and
constitute hearsay.  Because they do not fall within any hearsay exception, the
master was correct to exclude them.

II.  The
Condemnation Decision

The Williamsons
contend the County abused its discretion in determining that it needed a boat
landing on the South Fork of the Edisto River and that it acted in bad faith.  "[T]he
decision of the question of necessity lies with the one to whom the state has
delegated the authority to take property for a public use and is not subject to
review by the court in the absence of fraud, bad faith, or abuse of
discretion."  Atkinson v. Carolina Power & Light Co., 239 S.C.
150, 158-59, 121 S.E.2d 743, 747 (1961).  Accordingly, judicial review of a
legislative condemnation decision such as the one in this case is deferential. 
However, our review of the circuit court's decision is not deferential.  See Fox v. Moultrie, 379 S.C. 609, 613, 666 S.E.2d 915, 917 (2008) ("In
an action in equity,
tried with reference to a master, this Court reviews the
evidence and determines the facts according to its own view of the
preponderance of the evidence . . . .").  In this
case, the County conducted a survey to assess need and location preference and
chose a boat landing which already existed, had been regularly utilized by its
citizens for thirty years, could be put to use immediately, and presented
minimal costs.  We give due deference to the County's decision to condemn and
find that it neither abused its discretion nor acted in bad faith.   

AFFIRMED.

SHORT and
WILLIAMS, JJ., concur.

[1] For example, one statement from an article was:
"But Haydel said the law gives public bodies, such as council, the right
to take private property as long as it is for public use."