Hildreth v. County of Kershaw

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Donnie Hildreth,       
Respondent,

v.

County of Kershaw,       
Appellant.

Appeal From Kershaw County

Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2005-UP-134

Submitted December 1, 2004 – Filed February
22, 2005

AFFIRMED

Andrew F. Lindemann, David L. Morrison, of Columbia, for Appellant.

J. Charles Ormond, Jr., of Columbia, for Respondent.

PER CURIAM:  Donnie Hildreth brought
an inverse condemnation action against the County of Kershaw alleging its excavation
of a trench near his property proximately caused damage to his property and
residence.  A jury trial was held and the jury returned a verdict in the amount
of $125,000 in favor of Hildreth.  The County appeals.  We affirm.1

FACTS

In the fall of 1998, the
County excavated a trench to install a sewer line across the road from Hildreth’s
property.  Hildreth alleged after the County dug the trench, his property began
to settle.  The settling caused extensive damage to his house. 

Hildreth brought an inverse condemnation action
against the County claiming the trench proximately caused damage to his property
and his residence.  The case was tried before a jury.  During the trial, Hildreth
presented the expert testimony of Burton Wells, a civil engineer, who testified
that within a reasonable degree of engineering certainty and based on the data
he collected, the digging of the trench caused a change in the water regime,
which resulted in the settlement of Hildreth’s property.  The County made a
motion to strike this testimony due to lack of evidentiary support for Wells’
opinion.  The trial court denied this motion. 

At the close of Hildreth’s case and at the close
of all of the evidence, the County moved for a directed verdict based on Hildreth’s
failure to prove the trench proximately caused the alleged damage to his property. 
The trial court denied these motions.  The case was presented to the jury, which
returned a verdict for Hildreth in the amount of $125,000.  The County made
a motion for judgment notwithstanding the verdict, new trial nisi, and new trial
absolute.  The trial court denied these motions.  This appeal followed. 

LAW/ANALYSIS

I.  Motion to Strike

The County argues the trial court erred
in denying its motion to strike Wells’ testimony.  The County alleges because
Wells could not opine as to whether a perched water table existed, his opinion
was based on conjecture, speculation, and supposition.  Therefore, the County
asserts his opinion lacked a sufficient basis and was improperly admitted by
the trial court.  We disagree.

The admissibility of evidence is within the discretion
of the trial court and will not be reversed on appeal absent a showing of abuse
of discretion.  Elledge v. Richland/Lexington Sch. Dist. Five,
352 S.C. 179, 185, 573 S.E.2d 789, 792 (2002).  Rule 703, SCRE, provides:

The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or before
the hearing.  If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence.

“Where the expert’s testimony is based upon facts sufficient to form the basis
for an opinion, the trier of fact determines its probative value.”  Berkeley
Elec. Coop., Inc. v. South Carolina Pub. Serv. Comm’n, 304 S.C. 15, 20, 402 S.E.2d 674, 677 (1991). 

We find the trial court did not abuse its discretion
in allowing Wells’ testimony.  The County did not object to Wells’ qualifications
as an expert on civil engineering.  The County only argues Wells did not have
a sufficient basis to render his opinion as to the cause of the subsidence. 
We find the record does establish a sufficient basis forWells’ opinion. 

Wells testified he visited Hildreth’s property several
times, made soil borings, and considered the type of soil according to the Kershaw
County Soil Report.  He reviewed and considered a report generated by another
engineer who examined the property.  He personally inspected the manhole associated
with the trench and saw it contained water and was rusted and stained, indicating
the water flowed from the inside of the manhole to the outside.  As a result
of his observations, Wells asked Hildreth to construct wells on his property
in order to determine the flow of water after significant rain.  Wells also
instructed Hildreth to report the water level in the wells to him, and based
on these reports, he determined the trench had a connection to the subsidence. 
Wells also determined the soil around the trench was not compacted as evidenced
by the fact it had settled by at least a foot.  Based on these facts, he determined
the ground water took the path of least resistance and “was most probably intercepted
by the drain.” 

In addition, Wells considered the timing of when
the County excavated the trench and when the subsidence began, and that no previous
incidences of subsidence occurred.  He noted as time progressed, the subsidence
did not worsen, indicating the soil compacted naturally, and the movement of
water stabilized.  Wells also ruled out other possible causes for the subsidence,
including a problem with Hildreth’s pool, his septic drain field, drought or
other weather conditions, or old tree stumps.  Therefore, we find this evidence
established a proper basis for Wells’ opinion that to a reasonable degree of
engineering certainty, the most probable cause of the soil subsidence was the
digging of the trench, which provided a more efficient outlet for subsurface
water.  Accordingly, the trial judge did not abuse his discretion in denying
the County’s motion to strike Wells’ testimony. 

II.  Directed Verdict and JNOV

The County argues the
trial court erred in denying its motions for directed verdict and JNOV.  The
County asserts Hildreth failed to present evidence that his damages were proximately
caused by the excavation of the trench.  We disagree.

In considering a directed verdict or a JNOV motion,
the appellate court, like the trial court, is required to view the evidence
and the inferences that can be drawn therefrom in the light most favorable to
the nonmoving party.  Sabb v. South Carolina State Univ., 350 S.C. 416,
427, 567 S.E.2d 231, 236 (2002).  The motions must be denied when the evidence
yields more than one inference or its inference is in doubt.  Id.  Neither
the trial court nor the appellate court has authority to decide credibility
issues or to resolve conflicts in the testimony or evidence.  Harvey v. Strickland,
350 S.C. 303, 308, 566 S.E.2d 529, 532 (2002).

We find evidence does exist to support the trial court’s
ruling.  Although Wells could not identify the exact mechanism, he determined
the trench provided a more efficient outlet for the ground water, and therefore,
it changed the water regime and caused the subsidence in the property.  This
testimony provides a basis upon which the jury could determine the trench proximately
caused Hildreth’s property to subside. 

In addition to Wells’ testimony, Hildreth also provided
other evidence that the trench caused the damage to his property.  Hildreth
testified he did not notice any problems with his property until after the excavation
of the trench.  Hildreth’s ex-wife, in her testimony, confirmed Hildreth’s observation
that the problems did not begin until after the excavation of the trench.  Hildreth
also introduced photographs during his testimony depicting his property before
and after the excavation of the trench and the subsidence of the earth surrounding
the manhole associated with the trench.  Therefore, we find evidence does exist
to support the jury’s determination and accordingly, the trial court properly
denied the County’s motions for directed verdict and JNOV.

III.  Motion for New Trial Absolute

The County argues the trial judge erred
in denying its motion for new trial absolute.  We disagree. 

The trial court alone has the power to
grant a new trial nisi when it finds the amount of the verdict to be
merely inadequate or excessive.  O’Neal v. Bowles, 314 S.C. 525, 526,
431 S.E.2d 555, 557 (1993). The denial of a motion for a new trial nisi
is within the trial court’s discretion and will not be reversed on appeal absent
an abuse of discretion.  Id.  On appeal of the denial of a motion for
a new trial nisi, this court will reverse only when the verdict is grossly
inadequate or excessive requiring the granting of a new trial absolute.  Id. 

The trial court’s decision to deny a motion for
new trial absolute is within its discretion and will not be reversed absent
an abuse of discretion.  Cock-N-Bull Steak House, Inc. v. Generali Ins. Co.,
321 S.C. 1, 9, 466 S.E.2d 727, 731 (1996).  When deciding a motion to grant
a new trial, the court must look at the testimony and inferences raised in favor
of the nonmoving party.  Welch v. Epstein, 342 S.C. 279, 302-03, 536
S.E.2d 408, 420 (Ct. App. 2000).  “The trial court must set aside a verdict
only when it is shockingly disproportionate to the injuries suffered and thus
indicates that passion, caprice, prejudice, or other considerations not reflected
by the evidence affected the amount awarded.”  Id. at 302, 536 S.E.2d
at 420.  A jury’s determination of damages is entitled to substantial deference
by this court.  Knoke v. S.C. Dep’t. of Parks, Recreation & Tourism,
324 S.C. 136, 141, 478 S.E.2d 256, 258 (1996).

Viewing the testimony in the light most
favorable to Hildreth, we find the verdict returned by the jury within the scope
of the evidence.  The measure of damages in an inverse condemnation action is
the diminution in the market value of the property.2  Ravan v. Greenville County, 315 S.C. 447,
465, 434 S.E.2d 296, 307 (Ct. App. 1993).  In response to a question regarding
the value of his home and property without the damage, Hildreth stated:  “I
probably figure maybe $180,000.”  When questioned about its value with the damage,
he stated:  “With the damage and the repair and everything, probably $100,000
or less.”  From this testimony, the jury could infer the current value is actually
less than $100,000 and, therefore, the diminution in value was greater than
$80,000.  Hildreth also testified he previously spent two to three thousand
dollars on repairs.  The jury may have considered this amount in increasing
the diminution in value amount.  Hildreth also presented the testimony of his
contractor, V.C. Rabon, who estimated the cost to repair the house at $74,000. 
However, the costs to repair were not limited solely to Rabon’s $74,000 estimate. 
Specifically, Rabon noted on cross-examination by the County’s attorney that
he did not include the cost to correct any problems with the footings under
the house.  Furthermore, Hildreth presented evidence that not only was his house
damaged, but his yard was also damaged by the subsidence, with large indentions
in the yard and buckles and cracks in his cement walkway and cracks in the patio. 
Thus the repairs by Rabon would not alleviate the diminution in value to the
property itself.  Considering the record as a whole we do not find the jury’s
verdict of $125,000 “shockingly disproportionate to the injuries suffered and
thus indicat[ing] that passion, caprice, prejudice, or other considerations
not reflected by the evidence affected the amount awarded.”  Thus, under our
limited standard of review, we are constrained to hold the trial court did not
abuse its discretion in denying the County’s motion for a new trial absolute. 

AFFIRMED. 

HUFF, KITTREDGE, and BEATTY, JJ. concur. 

1 We decide this case without oral argument pursuant
to Rule 215, SCACR.

2
This court has also recognized prejudgment interest as recoverable in an inverse
condemnation action.  Vick v. South Carolina Dep’t of Transp.,
347 S.C. 470, 481, 556 S.E.2d 693, 699 (Ct. App. 2001).  However,
as the jury was not charged that it could award such interest as damages,
we will not consider prejudgment interest in determining whether the trial
court erred in denying the County’s motion for a new trial absolute.