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2005-UP-134 - 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Unpublished Opinion No. 2005-UP-134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.