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,
p.6
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
p.7
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.
p.8
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.
p.9
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).
p.10
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
p.11
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.
p.12