Central Electric Power Cooperative v. McKey

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Central Electric Power Cooperative, Inc., a Corporation,       
Appellant,

v.

IN RE:  Condemnation of a 75 Foot wide right-of-way 760 feet long across
lands in Kershaw County belonging to Candace McKey,       
Respondent.

Appeal From Kershaw County

L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2003-UP-670

Heard September 8, 2003 – Filed November
17, 2003

AFFIRMED

James Randall Davis and Lisa Lee Smith, both of Lexington,
for Appellant.

Keith M. Babcock, of Columbia, for Respondent.

PER CURIAM:  Central Electric Power Cooperative
(Central Electric) brought this condemnation action to acquire an easement across
land owned by Candace McKey (McKey) in Kershaw County.  Central Electric appeals
from a jury award of $48,500 in favor of McKey.  We affirm.

1.  We find the trial court did not abuse its discretion
in admitting portions of a videotape taken and narrated by McKey’s father, Jack
Ketter, that contained selected views of McKey’s property as well as footage
of the immediately surrounding area developed for residential use.  Ketter testified
the highest and best use of the subject property was residential, an issue to
which the videotape related.  The highest and best use of the subject property
was a matter for the jury to consider in determining damages.  See 26
Am. Jur. 2nd Eminent Domain § 371, at 779 (1996) (“Diminished value is
measured by the property’s highest and best use, notwithstanding its use at
the time of the taking.”).  As to Central Electric’s argument that the danger
of unfair prejudice outweighed the probative value of this evidence, Central
Electric did not make this specific argument at trial; therefore, we cannot
address it.  See Mizell v. Glover, 351 S.C. 392, 399, 570 S.E.2d
176, 180 (2002) (“In order to preserve an issue for appellate review, the issue
must have been raised to and ruled upon by the trial court.”).

2.  We find no error in the trial court’s admission of a
photograph showing two sets of transmission lines on property on which Central
Electric held an easement in Calhoun County.  See State v. Rosemond,
335 S.C. 593, 596, 518 S.E.2d 588, 589-90 (1999) (“The relevance, materiality
and admissibility of photographs are matters within the sound discretion of
the trial court and a ruling will be disturbed only upon a showing of an abuse
of discretion.”); id. at 597, 518 S.E.2d at 590 (“If the photograph serves
to corroborate testimony, it is not an abuse of discretion to admit it.”). 
The photograph corroborated testimony offered at trial and was relevant on the
issue of the scope and extent of Central Electric’s easement. 

3.  The trial court did not err in admitting testimony concerning
the location of Central Electric’s transmission line across McKey’s property. 
The location of the line was a factor directly related to the value of the remainder
of the property and the resulting damages.  See generally 26 Am. Jur.
2nd Eminent Domain § 368, at 777 (1996) (“[A] wide range of factors is
relevant in severance determinations and . . . they are essentially ad hoc factual
inquiries”); 29A C.J.S. Eminent Domain § 127(b), at 328-29 (1992) (“It
is proper to consider . . . the character and quality of the tract of which
a part is taken, the situation of the part taken with reference to the residue,
and the effect of the improvement and the severance of the tract generally.”). 

4.  We find no merit in Central Electric’s contention, made
for the first time on appeal, that the trial court erred in allowing the jury
a choice of whether to view the subject property.  The issue is not preserved
as the parties expressly agreed to the procedure of having the trial court charge
the jury that it could view the property if it so desired.  See Mizell,
351 S.C. at 399, 570 S.E.2d at 180 (“In order to preserve an issue for appellate
review, the issue must have been raised to and ruled upon by the trial court.”);
Hillman v. Pinion, 347 S.C. 253, 554 S.E.2d 427 (Ct. App. 2001) (holding
a party may not complain for the first time on appeal of an alleged error that
the party’s own conduct induced). 

5.  We find no merit in Central Electric’s argument
that the trial court erred in failing to reduce the amount awarded to McKey
for attorney’s fees and costs, the sum of $30,929.54.  Under S.C. Code Ann.
§ 28-2-510(B)(1) (1991), a prevailing landowner in a condemnation action is
allowed to recover “reasonable litigation expenses.”  This statute gives the
trial court the discretion to determine reasonable attorney’s fees.  City
of N. Charleston v. Claxton, 315 S.C. 56, 431 S.E.2d 610 (Ct. App. 1993). 
In its order awarding attorney fees, the trial court specifically discussed
the relevant factors and particularly noted that McKey’s attorney and his law
firm had spent more than four years representing her as the landowner in this
case.  Based on the court’s proper consideration of all of the appropriate factors,
we conclude the trial court did not abuse its discretion in this instance. 
See Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313,
315 (1991) (stating a trial court should consider the following factors in determining
an award of attorney’s fees:  “(1) the nature, extent, and difficulty of the
case; (2) the time necessarily devoted to the case; (3) professional standing
of counsel; (4) contingency of compensation; (5) beneficial results obtained;
(6) customary legal fees for similar services”).  

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.