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24836 - S.C.D.H.P.T. v. E.S.I. Investments

Davis Adv. Sh. No. 31
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





South Carolina Department

of Highways and Public

Transportation, Respondent,

v.

E.S.I. Investments, a South

Carolina General Partnership,

and the South Carolina

National Bank, Mortgagee;

Protective Life insurance

Company, Mortgagee; The

Associates Financial Services,

Lessee; One Price Clothing $7

Store #53, Lessee; Variety

Wholesalers, Lessee; Pic'n'Pay

Shoes of Charleston, Lessee;

Custom Furnishings, Lessee;

Book Exchange, Lessee;

Carolina Casuals, Lessee;

Revco Discount Drug Centers

of South Carolina,

Incorporated, #1204, Lessee;

and K-Mart #9509, Lessee;

Liquor Store, Lessee; Big Star

#2730, Lessee; and Other

Condemnees,



of which

E.S.I. Investments is the Petitioner.





and





South Carolina Department

of Highways and Public

Transportation, Respondent,



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S.C.D.H.P.T. v. E.S.I. Investments



v.



E.S.I. Investments, a South

Carolina General Partnership,

Landowner, and the South

Carolina National Bank,

Mortgagee; and Protective

Life Insurance Company,

Mortgagees,





of which

E.S.1 Investments is the Petitioner.





ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS





Appeal From Dorchester County

Gerald C. Smoak, Sr., Circuit Court Judge





Opinion No. 24836

Heard December 2, 1997 - Filed September 14, 1998





REVERSED





Thomas E. McCutchen and Evans Taylor Barnette, both of

McCutchen, Blanton, Rhodes and Johnson, of Columbia, for

petitioner.





Richard D. Bybee, of Smith, Bundy, Bybee and Barnett, of

Charleston; and Natalie Jean Moore, of Columbia, for

respondent.





FINNEY, C.J.: We granted a writ of certiorari to review the

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S.C.D.H.P.T. v. E.S.I. Investments



Court of Appeals' decision in South Carolina Department of Highways &

Public Transportation v. E.S.I. Investments, 322 S.C. 147, 470 S.E.2d 387 (Ct.

App. 1996). We reverse.





FACTS

This condemnation action was commenced by the filing of three

Notices of Condemnation. The actions were consolidated for trial and tried

before a jury. E.S.I. Investments (petitioner) was seeking compensation in

excess of $1.8 million dollars for damages to its shopping center resulting

from the condemnation. The jury returned a verdict in favor of petitioner in

the amount of $150,000. Petitioner filed a motion for a new trial on the

grounds that it was error for the trial court to deny the landowner the right

to call and identify one of respondent's trial witnesses, an appraiser, whose

testimony supported and corroborated petitioner's position.





The trial judge granted the motion for a new trial finding it was

error to deny petitioner the right to call and identify the appraiser as having

been initially employed by respondent for the purpose of determining the fair

market value of the property condemned and the resulting damage thereto.

Respondent appealed and the Court of Appeals reversed concluding the

testimony was inadmissible to establish the appraiser's credibility because

petitioner had no right to bolster the witness's credibility until he was

impeached or his credibility was attacked.





ISSUE

Can an appraiser, called as a witness by petitioner at

trial but originally employed by respondent, be

examined as to his employment by respondent?





DISCUSSION

The condemnation involves a portion of three separate tracts of

land owned by petitioner. One of the tracts was improved with the Heritage

Square Shopping Center, occupied by various tenants named as parties in

this action. This tract of land was bounded by Highway 78 and Loblolly

Street before condemnation. The other tracts were parcels of land abutting

U.S. 78 and adjacent to the shopping center. The total amount of land

acquired was .553 acres from the three tracts comprising 13.98 acres before

condemnation.

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S.C.D.H.P.T. v. E.S.I. Investments



Petitioner's claims for damages to the remainder were primarily

premised on the construction of a raised concrete median which restricted

turning movements to make a right turn in and right turn out at one of the

entrances to the shopping center and the closing of another entrance on

Loblolly Street. Loblolly Street was converted from a two lane street to a

four lane controlled access facility. Petitioner asserts that these changes in

ingress and egress constituted material changes which lead to the diminution

of the fair market value of the shopping center. The jury was charged with

determining the following factual issues: 1) the value of the land taken, 2)

whether there was damage to the remainder caused by these highway

improvements and if so, 3) the extent of any damage.





Only two of the three independent appraisers employed by

respondent testified at trial. Both of these appraisers gave estimates of just

compensation ranging from $49,872 to $110,714 based on the value of the

land taken, but concluded that the changes in access would result in no

damages to the remainder.





Respondent did not call the third appraiser, Chris Donato, who

was retained by respondent and listed as a trial witness. Donato concluded

prior to trial that the highest and best use of the property before

condemnation was as warehouse distribution rather than as a shopping

center and that the access changes would accelerate the change of use.

Donato estimated just compensation was $210,000, which included the value

of the land taken and damages to the remainder.





Petitioner called an expert appraiser and one of its partners

concerning estimates of the values of land and damages to the remainder.

These estimates of just compensation ranged from $1,876,000 to $2,200,000.

During petitioner's case-in-chief, petitioner's counsel advised the court of their

intentions to call Donato if he were not called to the stand by respondent.

The trial court ruled that petitioner could call Donato but it would be

improper to allow petitioner to elicit testimony about his original

employment, as the prejudice to respondent outweighed any probative value

of the testimony. Petitioner did not call Donato as a witness.





After the jury verdict, petitioner made a motion for a new trial

on the ground that it was denied a fair trial because it should have been

permitted to call Donato and to identify him as having been employed by

respondent. The trial judge ranted the motion.

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S.C.D.H.P.T. v. E.S.I. Investments





Respondent argued to the Court of Appeals that the trial judge

erred in granting petitioner a new trial asserting that the testimony was

properly restricted as it was highly prejudicial and irrelevant. The Court of

Appeals was persuaded by the majority view that such evidence is improper.1

The Court of Appeals concluded that admission of this evidence could only

serve to support the witness's credibility, which is not permitted under our

rules, or to create the impression with the jury that respondent was

suppressing evidence. The Court of Appeals reversed the granting of a new

trial and held that the trial Judge properly excluded testimony concerning

respondent's hiring of the appraiser.





Petitioner contends the Court of Appeals erred in adopting the

majority view, which excludes, as a matter of law, under any and all

circumstances, evidence that an expert appraiser called as a witness by one

party in a condemnation action was initially employed by the opposing party.

Petitioner urges this Court to adopt the minority rule which allows the trial

judge to exercise discretion in determining whether to admit or exclude

evidence that a witness was initially employed by the opposing party. City

of Baltimore v. Zell, 367 A.2d 14 (Md. 1977); Levitsky v. Prince George's

County, 439 A.2d 600 (Md. Ct. Spec. App. 1982); Board of Education of South

San Pete School District v. Barton, 617 P.2d 347 (Utah 1980). Petitioner

maintains the majority view cases followed by the Court of Appeals do not

address the situation of a condemnor putting into issue the validity of the

landowner's appraisal theory even though it is corroborated by one of its own

experts.







We agree with the holding in City of Baltimore v. Zell, that

admitting the fact that the appraiser had been employed by the condemnor

is a matter within the sound discretion of the trial court. The Court in City

of Baltimore stated:





. . . We also have no disagreement with the general

principle that a party ordinarily may not sustain the


1 Dicker v. United States 352 F.2d 455 (D.C. Cir. 1965); Arkansas

State Highway Comm. v. First Pyramid Life Ins. Co. of America, 579

S.W.2d 587 (Ark. 1979); Department of Transportation v. Swanson, 382

S.E.2d 711 (Ga. Ct. App. 1989), State v. Kalivas, 484 S.W.2d 292 (Mo.

1972); State v. Wilkinson-Snowden-McGehee, 571 S.W.2d 842 (Tenn. Ct.

App. 1978); State v. Biggers, 360 S.W.2d 516 (Tex. 1962).

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S.C.D.H.P.T. v. E.S.I. Investments

credibility of his own witness absent an attack upon

credibility by the other side. . . . Nevertheless, we

believe that the opinions in the above-cited cases, and

the [condemnor's] position in the instant case,

represent too rigid an application of the general

principle.

The rule that one cannot bolster the credibility

of his own witness, absent an attack upon credibility

by the other side, is not without exceptions. . . .

Moreover, the rule is usually applied in completely

different circumstances than presented in the instant

case, such as an attempt to call an additional witness

to testify concerning the good character for veracity

of the witness or an attempt to offer a prior

consistent statement of the witness solely for the

purpose of supporting his veracity. . . . In those

circumstances, as Wigmore, points out, valuable trial

time is taken up by the introduction of unnecessary

and often cumbersome evidence, as an unimpeached

'witness may be assumed to be of normal moral

character for veracity . . .' However, merely asking

a witness a brief preliminary question concerning his

employment in connection with the case is not subject

to this same objection.

It is a routine practice in trials for an attorney

to ask his witness certain preliminary questions

which may not be relevant to the issues being

litigated, which may go beyond mere identification

and which are designed to show that the witness will

be somewhat credible or not biased in favor of the

side calling him. For example, the educational

background or professional status or employment

position of a non-expert witness may be asked, or the

witness's lack of prior contact with the side who has

called him may be brought out. These questions give

the jury some knowledge of the individual and a

more complete perspective in considering his

testimony.... [Citations omitted.]





We conclude that such questions, within reasonable limits, serve

the useful purpose of informing the jury about the witness, and thus may be



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S.C.D.H.P.T. v. E.S.I. Investments





allowed.



A trial judge's decision granting or denying a new trial will not

be disturbed unless his decision is wholly unsupported by the evidence or the

conclusions of law have been controlled by an error of law. Craven v.

Cunningham, 292 S.C. 441, 357 S.E.2d 23 (1987). Since we find the trial

judge's ruling was not based on an error of law, the grant of a new trial was

not improper. Accordingly, the opinion of the Court of Appeals is





REVERSED.





TOAL, MOORE, WALLER, JJ., and Acting Associate Justice Jams R.

Barber, concur.







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