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2011-UP-052 - Williamson v. County of Orangeburg

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John Williamson, III and Kathryn J. Williamson, Appellants,

v.

The County of Orangeburg, Respondent.


Appeal From Orangeburg County
 Olin D. Burgdorf, Master-in-Equity


Unpublished Opinion No. 2011-UP-052
Heard November 3, 2010 – Filed February 10, 2011   


AFFIRMED


Wm. Howell Morrison and Phyllis W. Ewing, both of Charleston; for Appellants.

D'Anne Haydel and Paul D. de Holczer, both of Columbia; for Respondents.

FEW, C.J.: The Williamsons challenged Orangeburg County's decision to condemn their property on the South Fork of the Edisto River for use as a public boat landing pursuant to section 4-9-30(4) of the South Carolina Code (Supp. 2010).  The master-in-equity upheld the County's decision.  The Williamsons appeal (1) the exclusion of newspaper articles from evidence and (2) the master's condemnation decision.  We affirm.

I.  Admissibility of Newspaper Articles

"The admission of evidence is a matter left to the discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion."  Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 434, 673 S.E.2d 448, 457 (2009).  "An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion that is without evidentiary support.      . . . To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling and the resulting prejudice    . . . ."  Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005) (internal citations omitted).

The Williamsons contend the master erred in excluding three newspaper articles from evidence that contained statements of county employees.  They argue the articles are not hearsay because they were not offered for their truth, but rather as proof that the County acted in bad faith and abused its discretion in deciding to condemn their property.  Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  Rule 801(c), SCRE.  This case presents us with a double hearsay situation.  To illustrate, "(county employee statements)" are the first level of hearsay and "The witness said . . ." is the second level of hearsay.[1] 

Consequently, for the newspaper articles to be admissible, after determining whether each level is actually hearsay, we must assess whether each level falls within an exception to the hearsay rule.  See Bain v. Self Mem'l Hosp., 281 S.C. 138, 145, 314 S.E.2d 603, 608 (Ct. App. 1984) ("[T]he general rule is that hearsay included within hearsay is not excluded if each part of the combined statements falls within some exception.").  The actual out-of-court statements made by county employees concerning the condemnation decision are the first level, and we conclude are not hearsay because they are admissions by a party opponent under Rule 801(d)(2)(A), (C), or (D), SCRE.  The second level is the statement by the newspaper asserting that a witness made a statement; therefore, these are offered to prove the truth of the matter asserted and constitute hearsay.  Because they do not fall within any hearsay exception, the master was correct to exclude them.

II.  The Condemnation Decision

The Williamsons contend the County abused its discretion in determining that it needed a boat landing on the South Fork of the Edisto River and that it acted in bad faith.  "[T]he decision of the question of necessity lies with the one to whom the state has delegated the authority to take property for a public use and is not subject to review by the court in the absence of fraud, bad faith, or abuse of discretion."  Atkinson v. Carolina Power & Light Co., 239 S.C. 150, 158-59, 121 S.E.2d 743, 747 (1961).  Accordingly, judicial review of a legislative condemnation decision such as the one in this case is deferential.  However, our review of the circuit court's decision is not deferential.  See Fox v. Moultrie, 379 S.C. 609, 613, 666 S.E.2d 915, 917 (2008) ("In an action in equity, tried with reference to a master, this Court reviews the evidence and determines the facts according to its own view of the preponderance of the evidence . . . .").  In this case, the County conducted a survey to assess need and location preference and chose a boat landing which already existed, had been regularly utilized by its citizens for thirty years, could be put to use immediately, and presented minimal costs.  We give due deference to the County's decision to condemn and find that it neither abused its discretion nor acted in bad faith.   

AFFIRMED.

SHORT and WILLIAMS, JJ., concur.


[1] For example, one statement from an article was: "But Haydel said the law gives public bodies, such as council, the right to take private property as long as it is for public use."