SCD of Commerce v. Clemson University

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Commerce, Division of
Public Railways, Respondent,

v.

Clemson University, Respondent,

And

Charleston County School District, Appellant.

Appellate Case No. 2017-000060

Appeal from Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 5783
Heard February 4, 2020 – Filed November 18, 2020

AFFIRMED

M. Dawes Cooke, Jr. and John William Fletcher, both of
Barnwell Whaley Patterson & Helms, LLC; Abigail
Budd Walsh, of Williams & Walsh, LLC; and
Christopher L. Murphy, of Murphy Law Offices, LLC,
all of Charleston, for Appellant.

Keith M. Babcock and Ariail Elizabeth King, both of
Lewis Babcock L.L.P., of Columbia; Derek Farrell Dean,
of Simons & Dean, of Charleston; Stephen A. Spitz, of
Spitz & Neville, LLC, of Charleston; and Karen Blair
Manning, of the South Carolina Department of
Commerce, of Columbia, for Respondent South Carolina
Department of Commerce, Division of Public Railways.

Newman Jackson Smith, Jr., of Nelson Mullins Riley &
Scarborough, LLP, of Charleston, and Wendy Wilkie
Parker, of Nelson Mullins Riley & Scarborough, LLP, of
Columbia, for Respondent Clemson University.

LOCKEMY, C.J.: In this condemnation action, Charleston County School
District (the School District) appeals the circuit court's order transferring the case
to the non-jury trial roster. The School District argues the circuit court erred by
depriving it of its right to a jury trial because (1) it was entitled to a jury trial
pursuant to the South Carolina Eminent Domain Procedure Act1 (the Act), (2)
section 28-2-460 of the Act did not require a non-jury trial, and (3) a non-jury trial
was not required notwithstanding the equitable nature of the School District's
interest in the property at issue. We affirm.

FACTS/PROCEDURAL HISTORY

In December 2010, the South Carolina Department of Commerce, Division of
Public Railways (the Department), filed a condemnation notice to acquire property
consisting of 69.96 acres (the Entire Tract) and owned by Clemson University
(Clemson). The Department named Clemson as the landowner and the School
District as one of eight "other condemnees" in the action.2 The Department elected
not to utilize the appraisal panel procedure, offered tender of $9,645,000 to
Clemson as just compensation for the Entire Tract, and demanded a jury trial. The
School District subsequently filed a notice of appearance and demanded a jury trial
on the issue of just compensation.

The circuit court issued a consent order of limited reference in April of 2014,
which stayed the underlying condemnation action. According to the order, all
parties agreed that in 1996, the Charleston Naval Complex Redevelopment

1
S.C. Code Ann. §§ 28-2-10 to -510 (2007 & Supp. 2019).
2
S.C. Code Ann. § 28-2-280(C)(2) (2007) (requiring the condemnor to "designate
as 'landowner' all persons who are record owners of fee simple title and as 'other
condemnees' all persons who, to condemnor's knowledge, have or claim any record
interest in the property to be taken"). The remaining other condemnees were
dismissed from the action by consent order.
Authority (the RDA) and the School District entered into a sublease concerning an
Academic Magnet High School.3 However, the parties submitted the following
matters to a limited special referee: (1) whether the sublease expired, (2) how
much property was included in the sublease, (3) whether the School District had
any rights to such property after it was conveyed from the RDA to the City of
North Charleston, (4) whether the School District had any rights in such property
after North Charleston conveyed it to Clemson, and (5) whether the School District
had any rights in the property when the condemnation notice was filed.

After hearing the matter, the special referee found the sublease expired in
September of 2001 and the School District continued as a tenant at will thereafter.
The special referee determined the School District had no equitable title in the
property but found it had an equitable interest in the 3.74-acre parcel consisting of
the campus of the Academic Magnet High School. The special referee concluded
the School District made improvements to that property during the term of its
sublease and its use of the property thereafter "with the reasonable expectation it
would occupy and use the property for an extended period." Additionally, he
found the School District's interest "extended up to and include[ed]" the date the
condemnation action was filed but noted his authority did "not include whether that
interest ha[d] any monetary value, and if so, how much." The City of North
Charleston, Clemson, and the Department moved to alter or amend the special
referee's order, and the special referee denied the motion.

The Department then moved the circuit court to transfer the case to the non-jury
trial roster. Clemson advised the circuit court that it had reached an agreement
with the Department pursuant to which Clemson was to receive land in exchange
for the condemnation of the Entire Tract in lieu of financial consideration and
waived its right to any monetary compensation. The School District acknowledged
it was not a "lessee" but stated it had a "possessory interest in the property." It
argued because Clemson and the Department agreed to exchange land in place of
compensation, the Act required a jury trial on the issue of just compensation for the
Entire Tract and a subsequent apportionment hearing.

The circuit court issued an order transferring the case to the non-jury trial roster.
The court concluded the School District had no right to a jury trial. It found (1)
state law provided only the landowner, not other condemnees, the right to a jury
trial; (2) the equitable nature of the School District's interest called for the court to
decide the matter sitting in equity; and (3) any compensation owed to the School

3
The RDA was one of the named "other condemnees" in the condemnation action.
District should be determined in an equitable proceeding similar to that provided in
section 28-2-460.4

The School District moved the circuit court to reconsider its order and clarified it
did not demand a jury trial as to the Entire Tract but only as to the value of its
equitable interest.5 The circuit court denied the motion. This appeal followed.

STANDARD OF REVIEW

"Whether a party is entitled to a jury trial is a question of law." Verenes v.
Alvanos, 387 S.C. 11, 15, 690 S.E.2d 771, 772 (2010). Likewise, "[a]n issue
regarding statutory interpretation is a question of law." Lightner v. Hampton Hall
Club, Inc., 419 S.C. 357, 363, 798 S.E.2d 555, 558 (2017) (quoting Univ. of S. Cal.
v. Moran, 365 S.C. 270, 274, 617 S.E.2d 135, 137 (Ct. App. 2005)). "[T]his Court
reviews questions of law de novo." Id. (alteration in original) (quoting Town of
Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41
(2008)).

I. Entitlement to Jury Trial Under the Act

The School District argues the Act provided it a statutory right to a jury trial on the
issue of just compensation and a jury trial was the mandatory default under the Act
unless the parties unanimously demanded a non-jury trial. In addition, it asserts
that pursuant to Rules 38 and 39, SCRCP, the Department could not withdraw its
jury trial demand without the consent of all parties. We disagree.

"The right of trial by jury, guaranteed by our Constitution, is only applicable to
those cases in which a jury trial was required at the time of the adoption of the
Constitution." McGlohon v. Harlan, 254 S.C. 207, 215, 174 S.E.2d 753, 757
(1970). Our appellate courts "have specifically held there is no constitutional right
to a jury trial in an eminent domain case because there was no such right when our
constitution was adopted." Cobb v. S.C. Dep't of Transp., 365 S.C. 360, 364, 618
S.E.2d 299, 301 (2005); see also 18 S.C. Jur. Eminent Domain § 41 (1993) ("At
common law, there was no right to a trial by jury, and none was established under
the South Carolina constitution."). However, "such a right is provided by statute."

4
S.C. Code Ann. § 28-2-460 (2007) (providing the procedure for dividing a just
compensation award among the parties).
5
The settlement agreement between Clemson and the Department was also filed on
this date, and it provided the Department would dismiss Clemson from the action.
Cobb, 365 S.C. at 365, 618 S.E.2d at 301. "All rules of statutory construction are
subservient to the one that the legislative intent must prevail if it can be reasonably
discovered in the language used, and that language must be construed in the light
of the intended purpose of the statute." State v. Johnson, 396 S.C. 182, 188, 720
S.E.2d 516, 519 (Ct. App. 2011) (quoting State v. Sweat, 386 S.C. 339, 350, 688
S.E.2d 569, 575 (2010)). "If the language of a statute is unambiguous and conveys
a clear and definite meaning, then the rules of statutory interpretation are not
needed and the court has no right to impose a different meaning." Id. at 188, 720
S.E.2d at 519-20. "In interpreting a statute, the court will give words their plain
and ordinary meaning[] and will not resort to forced construction that would limit
or expand the statute." Id. at 188, 720 S.E.2d at 520.

Section 28-2-240 of the Act (2007) provides,

(A) If the condemnor elects to proceed under this section,
and the amount tendered in the Condemnation Notice is
rejected, the condemnor shall file the Condemnation
Notice with the clerk of court, if not already filed, and
shall serve upon the landowner and file with the clerk an
affidavit stating:

(1) that the amount tendered . . . has been rejected;

(2) that the condemnor demands a trial not earlier
than sixty days after the date of service of the
affidavit, which date must be certified on the copy
filed with the clerk;

(3) whether the condemnor demands a trial by jury
or by the court;

(4) whether the condemnor demands that the trial
be given priority over other cases; and

(5) the name and known address of each
landowner whom the clerk should notify of the call
of the case for trial. The affidavit may be executed
by the condemnor or by its attorney.
(B) After the filing of the affidavit, the case shall proceed
as provided in Article 3.

Regarding the mode of trial, Article 3 of the Act provides:

(A) Upon the filing of the affidavit described in
§ 28-2-240(A) . . . the action must be tried as provided in
this article.

(B) If the condemnor and the landowner have demanded
trial by the court without a jury, the clerk shall place the
action on the nonjury trial roster. Otherwise, the action
must be placed on the jury trial roster.

S.C. Code Ann. § 28-2-310(A)-(B) (2007). Additionally, section 28-2-280, states
that when a condemnor elects to proceed under section 28-2-240, its condemnation
notice shall state whether the condemnor "demands a trial by jury or by the court
without a jury" and "[t]he landowner has the right to demand a trial by jury." S.C.
Code Ann. § 28-2-280(C)(8) (2007); see also Cobb, 365 S.C. at 365, 618 S.E.2d at
301 (noting section 28-2-310 "provides in an eminent domain action a property
owner or the condemnor may elect a jury trial on the issue of compensation");
Richland County v. Lowman, 307 S.C. 422, 424, 415 S.E.2d 433, 434 (Ct. App.
1992) (noting "a landowner has the right to demand a trial by jury"); 18 S.C. Jur.
Eminent Domain § 41 ("Under the Act, either side may elect for a jury trial in the
condemnation action to determine just compensation."); id. ("Actions in
condemnation are to be placed on the jury roster unless the condemnor and
landowner demand trial by the court without a jury.").

The Act defines a "condemnee" as "a person or other entity who has a record
interest in or holds actual possession of property that is the subject of a
condemnation action." S.C. Code Ann. § 28-2-30(6) (2007).

"Landowner" means one or more condemnees having a
record fee simple interest in the property condemned or
any part thereof, as distinguished from condemnees who
possess a lien or other nonownership interest in the
property; where there are more than one, the term means
the condemnees collectively, unless expressly provided
otherwise.
S.C. Code Ann. § 28-2-30(12) (2007) (emphasis added); see also 18 S.C. Jur.
Eminent Domain § 44 (1993) (noting "[t]he Act distinguishes between other
condemnees and the landowners"); S.C. Code Ann. § 28-2-30(17) (2007)
("'Property' . . . means all lands, including improvements and fixtures
thereon, . . . easements and hereditaments, . . . every estate, interest and right, legal
or equitable, in lands or water and all rights, interests, privileges, easements,
encumbrances, and franchises relating thereto . . . .").

The statutory scheme of the Act contemplates that the
landowner, and not other condemnees, is the interested
party in most phases of the action. Thus, the landowner
alone is served with the condemnation notice and accepts
or rejects the tender or challenges the right to condemn,
is served with the condemnor's election to proceed with
trial, and consents to abandonment of the action. If an
appraisal panel is used, the landowner appoints a member
of the appraisal panel, receives notice of its decision, and
has the right to appeal to court. Similarly, the landowner
receives the notice of trial, if any issues. The other
condemnees receive notice only of filing the action and
of any proceedings to disburse the proceeds.

18 S.C. Jur. Eminent Domain § 44 (footnotes omitted) (summarizing the provisions
of sections 28-2-220 to -260, 28-2-290, and 28-2-460 of the Act (2007 & Supp.
2019)).

We conclude the Act provides only the landowner and condemnor—as opposed to
other condemnees—the right to a jury trial in a condemnation action. Section
28-2-310(B) provides, "If the condemnor and the landowner have demanded trial
by the court without a jury, the clerk shall place the action on the nonjury trial
roster. Otherwise, the action must be placed on the jury trial roster." The
definition of landowner does not include "condemnees who possess a lien or other
nonownership interest." See § 28-2-30(12). Rather, the term encompasses only
those condemnees "having a record fee simple interest in the property condemned
or any part thereof." Id. By definition, the term "landowner," regardless of
whether it includes multiple condemnees, does not include all condemnees. Based
on a plain reading of the Act, we conclude it contemplates the parties entitled to
participate in trial are limited to the landowner and the condemnor, and only those
parties who are entitled to participate in trial are entitled to a jury trial. See S.C.
Code Ann. § 28-2-240 (2007); S.C. Code Ann. § 28-2-280 (2007); § 28-2-310.
The School District—having only an equitable interest in a 3.74-acre portion of the
Entire Tract—is not a landowner under the Act and is therefore not entitled to
participate in trial. Accordingly, we conclude the School District is not entitled to
a jury trial under the Act.

Furthermore, even if the School District were entitled to a jury trial, nothing in the
Act entitled it to a jury trial to determine the value of the Entire Tract. Had the
Department and Clemson not settled and the case proceeded to trial on the issue of
just compensation for the taking of the Entire Tract, the issue before the jury would
have been the value of the Entire Tract. The court would have then apportioned
that amount among the landowner and any existing other condemnees—in this
case, the School District—in an equity proceeding pursuant to section 28-2-460 of
the Act. See § 28-2-460 (providing that when the persons served with the
condemnation notice do not agree to whom just compensation must be made and
paid, the verdict or judgment must be made jointly to all parties and paid to the
clerk of court); id. ("The payment of the funds so awarded must be held by the
clerk of court pending the final order of the court of common pleas in an equity
proceeding to which all persons served with the Condemnation Notice must be
necessary parties."). Here, the amount of just compensation for the Entire Tract is
not at issue because the landowner and the condemnor have settled that dispute.
The School District has only an equitable interest in 3.74 acres of the Entire Tract,
informed the circuit court it did not demand a jury trial on the Entire Tract, and
admitted on appeal that the only remaining question was "what, if any, just
compensation" it should be paid for its equitable interest. Therefore, we conclude
that even if the School District were entitled to a jury trial, it would not be entitled
to a jury trial as to the value of the Entire Tract.

Next, having concluded the School District had no statutory right to a jury trial, we
find the Department's initial demand for a jury trial in the condemnation action was
not dispositive.

The right of trial by jury as declared by the Constitution
or as given by a statute of South Carolina shall be
preserved to the parties inviolate. Issues of fact in an
action for the recovery of money only or of specific real
or personal property must be tried by a jury, unless a jury
trial be waived.
Rule 38(a), SCRCP; see also Rule 38(d), SCRCP ("A demand for trial by jury
made as herein provided may not be withdrawn without the consent of the
parties . . . .").

When trial by jury has been demanded as provided in
Rule 38, the action shall be designated . . . as a jury
action. The trial of all issues so demanded shall be by
jury, unless (1) the parties or their attorneys of
record . . . consent to trial by the court sitting without a
jury or (2) the court upon motion or its own initiative
finds that a right of trial by jury of some or all of those
issues does not exist.

Rule 39(a), SCRCP (emphasis added); see also S.C. Code Ann. § 28-2-120 (2007)
("In the event of conflict between this act and the South Carolina Rules of Civil
Procedure, this act shall prevail.").

Rules 38 and 39, SCRCP, in and of themselves, do not create the right to a jury
trial. Rather, pursuant to Rule 39(a)(2), SCRCP, if the circuit court finds a right of
trial by jury of some or all of the issues does not exist, a jury trial is not required
even if the parties have demanded one. Thus, notwithstanding the Department's
initial demand for a jury trial, Rule 39(a), SCRCP, did not confer upon the School
District the right to a jury trial. Further, under the School District's suggested
reading of the Act, any other condemnee having a nonownership interest in the
property at issue could demand a jury trial even if both the landowner and the
condemnor have elected a non-jury trial. We do not believe the legislature
intended this result. See Johnson, 396 S.C. at 188, 720 S.E.2d at 519 ("All rules of
statutory construction are subservient to the one that the legislative intent must
prevail if it can be reasonably discovered in the language used, and that language
must be construed in the light of the intended purpose of the statute." (quoting
Sweat, 386 S.C. at 350, 688 S.E.2d at 575)). Accordingly, we hold the circuit court
did not err by placing the action on the non-jury trial roster.

II. Section 28-2-460 of the Act

The School District argues the equitable procedure of section 28-2-460 did not
apply because the value of the Entire Tract had not been determined and the
condemnor, landowner, and all other condemnees had not agreed to an award as to
the Entire Tract. It therefore argues the circuit court erred by using the settlement
between Clemson and the Department to side-step the requirement that the value of
the Entire Tract be determined. We disagree.

Section 28-2-460 of the Act provides,

Unless the persons served with the Condemnation Notice
agree in writing as to whom just compensation must be
made and paid, the appraisal panel determination,
verdict, or judgment must be made jointly to all the
parties and may be paid to the clerk of court. Upon
making the payment, the condemnor's obligation to pay
interest upon the funds shall terminate. The payment of
the funds so awarded must be held by the clerk of court
pending the final order of the court of common pleas in
an equity proceeding to which all persons served with the
Condemnation Notice must be necessary parties. From
the order of the court of common pleas there may be an
appeal as provided for appeals from the court in equity
cases.

(emphases added). Here, the circuit court found section 28-2-460 required an
equitable proceeding to determine the rights of a landowner and other condemnees
when a dispute existed between them concerning the division of condemnation
proceeds. The circuit court noted a court should determine the School District's
equitable interest in a proceeding similar to that provided in section 28-2-460 but
acknowledged it could not use this precise procedure because the landowner
received no monetary payment in this case. Section 28-2-460 has no bearing upon
whether the School District had a statutory right to a jury trial. As we stated, the
value of the Entire Tract is not at issue. Further, nothing in section 28-2-460
requires a jury to determine just compensation or the value of an equitable interest
in a portion of the condemned property. Rather, it provides the method for
apportioning the amount of compensation, once determined, among the parties.
See § 28-2-460 (stating "the appraisal panel determination, verdict, or judgment
must be made jointly to all the parties" (emphasis added)). However, section
28-2-460 does suggest the value of the School District's interest in a small portion
of the Entire Tract—the issue to be decided in this case—is an equitable, rather
than a legal, issue. Section 28-2-460 therefore further demonstrates the
legislature's intent that only the landowner and condemnor have the right to elect a
jury trial on the issue of just compensation. Accordingly, we find the circuit court
did not err by applying section 28-2-460.
III. Equitable Interest

Finally, the School District asserts the equitable nature of its interest does not
preclude it from having a jury trial. We disagree. As we stated, the parties entitled
to a jury trial in a condemnation action are the landowner and condemnor. When,
as here, the landowner and condemnor have settled their dispute, the Act does not
require a jury trial on the issue of just compensation for any other parties that do
not fall into one of these categories. Therefore, we find the circuit court did not err
by finding the School District was not entitled to a jury trial to determine the value,
if any, of its equitable interest in the 3.74-acre portion of the property.

CONCLUSION

For the foregoing reasons, the circuit court's order transferring the action to the
non-jury trial roster is

AFFIRMED.

HILL and HEWITT, JJ., concur.