A very short one (4 pages and 1 line) from the South Carolina Court of Appeals. And a good thing, too, because we're on the road this week at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference. See you there!
In Burke v. S.C. Dep't of Transportation, No. 5709 (Jan. 15, 2020), the court concluded that the judge, not the jury, calculates statutory prejudgment interest in inverse cases the same way it does it straight takings. Although the court acknowledged the "considerable tension" in past decisions about the issue, it concluded the issue was actually one of first impression.
In the end the court relied on the notion that inverse and straight takings should not be subject to different rules -- see slip op. at 3 ("there is no good reason to treat the two differently") -- and held that because the rule in straight takings is that the judge determines statutory prejudgment interest, so too should the judge in inverse cases:
As this instruction suggests, just compensation can be viewed as a snapshot in time: a picture of the property's market value at the moment of taking. This scene does not yet include the background of the landowner's right to interest, which has not accrued at the moment of taking, but is added later to compensate the landowner for the loss of the use of his money between the time of the government's taking of his property and the judgment. Burke lost the use of his money for over three years. See Faulkenberry, 337 S.C. at 149, 522 S.E.2d at 826. We therefore hold that a request for prejudgment interest on a just compensation award in an inverse condemnation action is for the trial court and not the jury.
Slip op. at 4.
We don't have a problem with this because this case presented a question of statutory prejudgment interest. In cases where the statutory rate is below the market rate for money, however, we note that what courts often refer to as "interest" is really constitutionally-required just compensation.In other words, because an owner is entitled to be made financially whole, any delay in payment of full and fair compensation is part of just compensation, not some legislative entitlement. In those cases, shouldn't a jury make the call?
Burke v. South Carolina Dep't of Transportation, No. 5709 (S.C. App. Jan. 15, 2020)
