STANDARD OF REVIEW

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.

Unpublished Opinion No. 2005-UP-008
Heard November 7 2004 – Filed January 10, 2005

PER CURIAM: The South Carolina Department of Transportation (SCDOT) appeals a jury award in favor of landowners, Jimmy and Pete Mantekas, on their cause of action for inverse condemnation. We affirm.

Jimmy and Pete Mantekas own commercial property in Greenville fronting Old Easley Bridge Road, which came to a dead end just west of their property. Had Old Easley Bridge Road not ended, it would have intersected U.S. 123 at an angle. Just east of the dead end and across from the Mantekas property, motorists created a “cut-through,” providing access between U.S. 123 and Old Easley Bridge Road. At some time prior to 1971, this cut-through was paved and a stop sign erected. Importantly, SCDOT denies the cut-through is a state maintained road.

DOT constructed a chain link fence, curb, and grassy area permanently blocking the cut-through and all other access between U.S. 123 and Old Easley Bridge Road as part of a highway project designed to create a new entrance ramp onto U.S. 123. The Mantekases sued SCDOT under a theory of inverse condemnation for impact the loss of access had on their property value.

The trial court discussed presenting a special verdict form to the jury, stating:

The special verdict form was presented to the jury without objection and read as follows:

1.	Do you find the [cut-through] was an extension of Old Easley Bridge Road?
		Yes	If yes, GO TO QUESTION 2.
		No	If no, STOP AND DO NOT DELIBERATE FURTHER.
2.	Find $ ____________ just compensation for the taking of property.

As a result of the special verdict form, the jury implicitly determined liability, i.e. whether a taking had occurred, by answering the first question in the affirmative. The jury further determined $55,001 to be just compensation. SCDOT appeals.

SCDOT argues the court erred in submitting the question of a taking to the jury. Specifically, SCDOT argues the existence of a taking is an equitable matter that must be tried before the court alone whereas the amount of just compensation is a legal matter to be determined by a jury. We find this issue is not preserved for our review.

The trial court, citing City of Rock Hill v. Cothran, 209 S.C. 357, 40 S.E.2d 239 (1946) [1] , determined that if the jury found the cut-through was an extension of Old Easley Bridge Road, then the Mantekas property abutted Old Easley Bridge Road, and the Mantekases had suffered special injury entitling them to just compensation. The jury then determined by means of the special verdict form, that the cut-through was an extension of Old Easley Bridge Road and the Mantekases were entitled to $51,000. SCDOT made no objection to the submission of the special verdict form, in fact SCDOT specifically requested the special verdict form in the manner submitted by the trial judge to the jury. Therefore, we find the issue of whether the trial court erred in submitting “any question going to the existence of a taking to the jury” not preserved for our review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”); Horn v. Davis Elec. Constructors, Inc., 302 S.C. 484, 487, 395 S.E.2d 724, 725-26 (Ct. App. 1990) (finding that parties to an equitable action may consent to submit issues of fact to the jury).

Moreover, we find SCDOT’s following two issues on appeal not preserved for review. SCDOT asserts the trial court erred (1) in finding the Mantekas property abutted Old Easley Bridge Road because his statement on the law and special verdict form reflected a misreading of relevant case law, and (2) the trial court erred in failing to find special injury. Both of these issues could have been raised to and ruled upon by the trial judge at the time he discussed presenting a special verdict form to the jury. However, instead of objecting to the special verdict form, SCDOT consented to it and specifically requested the form in the manner presented to the jury. Therefore, we decline to address these issues. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733; Horn, 302 S.C. at 487, 395 S.E.2d at 725-26.

SCDOT also argues the trial court erred in charging the jury on special injury. However, while SCDOT objected to the form of the charge initially, the trial judge made corrections to his charge and SCDOT’s counsel responded, “I have no further exception on the charge.” Thus, this issue is similarly not preserved for our review. See Murray v. Bank of America, N.A., 354 S.C. 337, 346, 580 S.E.2d 194, 199 (Ct. App. 2003) (“It is certainly true that an appellant who failed to object to a jury charge at the first opportunity cannot complain about the charge on appeal.”).

Lastly, SCDOT argues there is no basis in fact to determine the Mantekases suffered special injury. [2] We disagree.

Judy Gilstrap, a real estate broker, testified the neighborhood is partially residential and the closing of the street would actually benefit residential property owners, but harm commercial property owners by limiting the amount of traffic approaching the businesses. Likewise, SCDOT’s expert witness testified the Mantekases had a corner lot prior to the street closing and they now have what was effectively an interior lot. He further testified corner lots offer greater visibility and access and carry a greater value in the market place. Finally, he calculated the loss of value as $55,000. This testimony specifically provides evidence of the Mantekases’ special injury, which is different in kind and not merely degree from that suffered by the public at large. See generally Gray v. S.C. Dep’t of Highways and Public Transp., 311 S.C. 144, 152, 427 S.E.2d 899, 903-04 (Ct. App. 1992) (“The critical question was whether the closing of the intersection affected the value of Gray’s property in some special way not common to other property in the area. The evidence showed Gray’s property abuts on the intersection that was closed . . . . Gray’s property was peculiarly suited for this use because of its location at the intersection. Thus, there was evidence from which the jury could find that he was specially damaged . . . .”).

[1] In Cothran, the City closed a portion of Laurel Street. Landowners owned property abutting Laurel Street, but not fronting the portion of the street closed by the City. The Landowners sued alleging the vacation of the street, which formally afforded them a “great tide of traffic and travel,” amounted to a taking entitling them to just compensation. 209 S.C. at 370, 40 S.E.2d at 243. The judgment was in favor of the city and the Landowners appealed. The supreme court determined that “[i]f it appears that there is a special injury, the owner may recover damages notwithstanding his property does not abut, as in this case, on the part of the street vacated, because this amounts to a ‘taking’.” Id. at 368, 40 S.E.2d at 243 (citation omitted).

The court determined there was special injury for the Landowners because “what was originally an open thoroughfare along the entire line of [Landowners’] property fronting Laurel Street, was by action of the City Council turned into a cul de sac.” Id. at 370, 40 S.E.2d at 244. The court further determined special injury occurred because neither the other property on the block nor the property of the general public was similarly affected. Id. Therefore, the Cothran court found the actions of the City amounted to a taking of Landowner’s land, entitling them to just compensation. Id.

[2] SCDOT assumes for purposes of this argument only that the scope of review is the any evidence standard applicable to factual determinations made by a jury. See Horn, 302 S.C. at 487, 395 S.E.2d at 726 (reviewing the factual findings of the jury in an equitable action to determine if there was any evidence to support the findings).