Mantekas v. SCDOT

STANDARD OF REVIEW

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

Jimmy Mantekas and Pete Mantekas,       
Respondents,

v.

South Carolina Department of Transportation,       
Appellant.

Appeal From Greenville County

Larry R. Patterson, Circuit Court Judge

Unpublished Opinion No. 2005-UP-008

Heard November 7 2004 – Filed January
10, 2005

AFFIRMED

Beacham O. Brooker, Jr., of Columbia; and John Robert Devlin,
Jr., of Greenville, for Appellant.

H. W. Paschal, Jr., of Greenville, for Respondents.

PER CURIAM:  The South Carolina
Department of Transportation (SCDOT) appeals a jury award in favor of landowners,
Jimmy and Pete Mantekas, on their cause of action for inverse condemnation. 
We affirm.

FACTS

Jimmy and Pete Mantekas own commercial
property in Greenville fronting Old Easley Bridge Road, which came to a dead
end just west of their property.  Had Old Easley Bridge Road not ended, it would
have intersected U.S. 123 at an angle.  Just east of the dead end and across
from the Mantekas property, motorists created a “cut-through,” providing access
between U.S. 123 and Old Easley Bridge Road.  At some time prior to 1971, this
cut-through was paved and a stop sign erected.  Importantly, SCDOT denies the
cut-through is a state maintained road. 

DOT constructed a chain link fence, curb, and grassy area
permanently blocking the cut-through and all other access between U.S. 123 and
Old Easley Bridge Road as part of a highway project designed to create a new
entrance ramp onto U.S. 123.  The Mantekases sued SCDOT under a theory of inverse
condemnation for impact the loss of access had on their property value. 

The trial court discussed presenting a special
verdict form to the jury, stating:

I think that if they find as a fact in this case that [the
cut-through] was an extension of Old Easley Bridge Road, the I am going to rule
as a matter of fact that the property abuts under the Cothran case, and
if it were [sic] closed and they had – if it’s a cul-de-sac, then they need
to determine damages.

The special verdict form was presented
to the jury without objection and read as follows:

1.

Do you find the [cut-through] was an extension of Old Easley Bridge Road?

                 
Yes

If yes, GO TO QUESTION 2.

                 

No

If
no, STOP AND DO NOT 

DELIBERATE FURTHER.

2. 

Find $ ____________ just compensation for the taking of property.

As a result of the special verdict
form, the jury implicitly determined liability, i.e. whether a taking had occurred,
by answering the first question in the affirmative.  The jury further determined
$55,001 to be just compensation.  SCDOT appeals.

ISSUES

I.      Whether the trial court erred in submitting the question of a taking to the
jury?

II.      Whether the trial court erred in finding the Mantekas property abutted the cut-through
section of Old Easley Bridge Road?

III.      Whether the trial court erred in failing to find special injury?

IV.     Whether there was any basis in fact to determine the Mantekases suffered special
injury?

LAW/ANALYSIS

SCDOT argues the court erred in submitting
the question of a taking to the jury.  Specifically, SCDOT argues the existence
of a taking is an equitable matter that must be tried before the court alone
whereas the amount of just compensation is a legal matter to be determined by
a jury.  We find this issue is not preserved for our review. 

The trial court, citing City
of Rock Hill v. Cothran, 209 S.C. 357, 40 S.E.2d 239 (1946) [1] , determined that if the jury
found the cut-through was an extension of Old Easley Bridge Road, then the Mantekas
property abutted Old Easley Bridge Road, and the Mantekases had suffered special
injury entitling them to just compensation.  The jury then determined by means
of the special verdict form, that the cut-through was an extension of Old Easley
Bridge Road and the Mantekases were entitled to $51,000.   SCDOT made no objection
to the submission of the special verdict form, in fact SCDOT specifically requested
the special verdict form in the manner submitted by the trial judge to the jury. 
Therefore, we find the issue of whether the trial court erred in submitting
“any question going to the existence of a taking to the jury” not preserved
for our review.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for
the first time on appeal, but must have been raised to and ruled upon by the
trial judge to be preserved for appellate review.”); Horn v. Davis Elec.
Constructors, Inc., 302 S.C. 484, 487, 395 S.E.2d 724, 725-26 (Ct. App.
1990) (finding that parties to an equitable action may consent to submit issues
of fact to the jury). 

Moreover, we find SCDOT’s following
two issues on appeal not preserved for review.  SCDOT asserts the trial court
erred (1) in finding the Mantekas property abutted Old Easley Bridge Road because
his statement on the law and special verdict form reflected a misreading of
relevant case law, and (2) the trial court erred in failing to find special
injury.  Both of these issues could have been raised to and ruled upon by the
trial judge at the time he discussed presenting a special verdict form to the
jury.  However, instead of objecting to the special verdict form, SCDOT consented
to it and specifically requested the form in the manner presented to the jury. 
Therefore, we decline to address these issues.  See Wilder Corp.,
330 S.C. at 76, 497 S.E.2d at 733; Horn, 302 S.C. at 487, 395 S.E.2d
at 725-26. 

SCDOT also argues the trial
court erred in charging the jury on special injury.  However, while SCDOT objected
to the form of the charge initially, the trial judge made corrections to his
charge and SCDOT’s counsel responded, “I have no further exception on the charge.” 
Thus, this issue is similarly not preserved for our review.  See Murray
v. Bank of America, N.A., 354 S.C. 337, 346, 580 S.E.2d 194, 199 (Ct. App.
2003) (“It is certainly true that an appellant who failed to object to a jury
charge at the first opportunity cannot complain about the charge on appeal.”).

Lastly, SCDOT argues there is
no basis in fact to determine the Mantekases suffered special injury.
[2]   We disagree.

Judy Gilstrap, a real estate
broker, testified the neighborhood is partially residential and the closing
of the street would actually benefit residential property owners, but harm commercial
property owners by limiting the amount of traffic approaching the businesses. 
Likewise, SCDOT’s expert witness testified the Mantekases had a corner lot prior
to the street closing and they now have what was effectively an interior lot. 
He further testified corner lots offer greater visibility and access and carry
a greater value in the market place.  Finally, he calculated the loss of value
as $55,000.  This testimony specifically provides evidence of the Mantekases’
special injury, which is different in kind and not merely degree from that suffered
by the public at large.  See generally Gray v. S.C. Dep’t of Highways
and Public Transp., 311 S.C. 144, 152, 427 S.E.2d 899, 903-04 (Ct. App.
1992) (“The critical question was whether the closing of the intersection affected
the value of Gray’s property in some special way not common to other property
in the area. The evidence showed Gray’s property abuts on the intersection that
was closed . . . .  Gray’s property was peculiarly suited for this use because
of its location at the intersection. Thus, there was evidence from which the
jury could find that he was specially damaged . . . .”).

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS,
concur.

[1] In Cothran, the City closed a portion of Laurel Street. 
Landowners owned property abutting Laurel Street, but not fronting the portion
of the street closed by the City.  The Landowners sued alleging the vacation
of the street, which formally afforded them a “great tide of traffic and travel,”
amounted to a taking entitling them to just compensation.  209 S.C. at 370,
40 S.E.2d at 243.  The judgment was in favor of the city and the Landowners
appealed.  The supreme court determined that “[i]f it appears that there is
a special injury, the owner may recover damages notwithstanding his property
does not abut, as in this case, on the part of the street vacated, because
this amounts to a ‘taking’.”  Id. at 368, 40 S.E.2d at 243 (citation
omitted). 

The court determined there was special injury for the Landowners because “what
was originally an open thoroughfare along the entire line of [Landowners’]
property fronting Laurel Street, was by action of the City Council turned
into a cul de sac.”  Id. at 370, 40 S.E.2d at 244.  The court further
determined special injury occurred because neither the other property on the
block nor the property of the general public was similarly affected.  Id. 
Therefore, the Cothran court found the actions of the City amounted
to a taking of Landowner’s land, entitling them to just compensation.  Id.

[2] SCDOT assumes for purposes of this argument only that the scope of
review is the any evidence standard applicable to factual determinations made
by a jury.  See Horn, 302 S.C. at 487, 395 S.E.2d at 726 (reviewing
the factual findings of the jury in an equitable action to determine if there
was any evidence to support the findings).