SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant, v. M & T ENTERPRISES OF MT. PLEASANT, LLC., Wells Fargo Bank of Minnesota, N.A., Assignee, and Walgreen Company, Lessee, Plaintiffs, Of whom Walgreen Company is Appellant, and M & T Enterprises of Mt. Pleasant, LLC., is Respondent.
No. 4435
Court of Appeals of South Carolina
Heard April 10, 2008. Decided Sept. 12, 2008.
667 S.E.2d 7
Randall S. Hiller, of Greenville, for Respondent.
PIEPER, J.:
This appeal involves a dispute between a landlord and tenant over the division of a compensation award from a partial taking of leased property by condemnation. Walgreen Company (Tenant) appeals the master-in-equity‘s decision to give the entire $100,000 award to M & T Enterprises of Mt. Pleasant, LLC (Landlord). Since we may affirm for any reason in the record, we affirm as modified.
FACTS
In 2001, Tenant entered into a lease (Lease) with MD/CP-Mount Pleasant, LLC (MD/CP). The Lease clause titled “Delivery of Possession” provided Landlord would complete
Article 4 (Condemnation Disclosure) in the Lease stated, “Landlord, after due inquiry, warrants and represents to Tenant that, other than the condemnation of a strip of land approximately five (5) feet wide along Hwy. 21, Landlord has no knowledge of any pending or threatened condemnation actions which will affect the Leased Premises.”1 The Lease also contained a site plan depicting an area labeled “20’ Future R/W Per Town” abutting Highway 17. Additionally, the Lease contained a section on condemnation (Condemnation Clause), which was divided into two parts, 32(a) and 32(b). Section 32(a) of the Condemnation Clause provided in part:
If prior to Landlord‘s delivery of possession of the Leased Premises to Tenant in accordance with Article 4, any portion of the Leased Premises or the Driveway shall be taken by reason of condemnation or under eminent domain proceedings, or if as a result of such a condemnation, eminent domain proceeding or of modifications to adjacent public roadways, any curb-cut providing access to the Leased Premises will be closed, then Tenant may terminate this Lease at Tenant‘s option, to be exercised by notice to Landlord within sixty (60) days of such event, if in the opinion of Tenant, reasonably exercised, the remainder of the Leased Premises and/or access points thereto are or shall no longer be suitable for Tenant‘s business.
Section 32(b) provided in part:
If subsequent to Landlord‘s delivery of possession of the Leased Premises to Tenant in accordance with Article 4, a portion of the Leased Premises and/or the Driveway shall
be taken under eminent domain or by reason of condemnation and if in the opinion of Tenant, reasonably exercised, the remainder of the Leased Premises and/or Driveway is/are no longer suitable for Tenant‘s business, this Lease, at Tenant‘s option, to be exercised by notice to Landlord within sixty (60) days of such taking shall terminate; any unearned rents paid or credited in advance shall be refunded to Tenant. If this Lease is not so terminated, Landlord forthwith and with due diligence, shall restore the Leased Premises and/or Driveway to a proper and usable condition. Until so restored, fixed rent shall abate to the extent that Tenant shall not be able to conduct business, and thereafter, fixed rent for the remaining portion of the term shall be proportionately reduced. Tenant shall be entitled to the award in connection with any condemnation insofar as the same represents compensation for or damage to Tenant‘s fixtures, equipment, non-permanent leasehold improvements and other property of Tenant, moving expenses as well as the loss of leasehold estate (i.e. the unexpired balance of the lease term immediately prior to such taking); Landlord shall be entitled to the award insofar as same represents compensation for or damage to the fee remainder (including damage to the Building structure, and other permanent leasehold improvements made at the expense of Landlord under Article 5 hereof).
On October 29, 2004, the South Carolina Department of Transportation (SCDOT) filed a condemnation notice. The notice involved a strip of land along Highway 17 varying in width from one to fourteen feet for a length of approximately three hundred feet, totaling 4,245 square feet of land. Prior to the condemnation, the leased premises encompassed 100,493 square feet or 2.31 acres. Tenant did not terminate the Lease after the taking and continued paying $31,083.33 in monthly rent as provided by the Lease. Tenant, Landlord, and SCDOT agreed to a condemnation award of $100,000. Tenant and Landlord did not agree on the division of the award, and their dispute was referred to the master-in-equity.2
The master-in-equity relied upon the contract between the parties and found that Tenant “has offered absolutely no evidence that the leasehold estate today is worth less than the leasehold estate that it held” on the date the Lease was either executed or delivered. The master-in-equity further stated that Tenant is “only entitled to the difference between what they pay in rent and what the property could be leased for.” As additional sustaining grounds, the master-in-equity found: (1) that the leased premises “excluded the first 20-feet of the subject premises as a future right of way and within which the condemnation actually occurred“; and (2) that, for purposes of the Lease, the condemnation action commenced when Landlord notified Tenant of the threatened condemnation in Article 4 of the Lease, which occurred prior to Tenant‘s possession. Thus, the only alternative under the terms of the Lease would have been to terminate the Lease. Since the master-in-equity determined that Tenant did not prove damages to the lease-
ISSUES
Tenant raises the following issues on appeal:
- Whether the trial court erred in applying the common law standard to measure a tenant‘s portion of a condemnation award instead of applying the condemnation provisions of the lease;
- Whether the trial court erred in ignoring the terms of a rent reduction condemnation clause in a condemnation allocation proceeding;
- Whether a condemnation clause is controlling between a tenant and its landlord in an allocation dispute under the
South Carolina Eminent Domain Procedures Act ; - Whether the trial court erred in determining that a clause giving notice of a possible condemnation affected Tenant‘s possible right to a proportionate rent reduction under the lease‘s condemnation clause;
- Whether the trial court erred in holding, as a matter of law, that the lease excluded an area described as a future right of way;
- Whether the trial court erred in holding, as a matter of law, that Tenant‘s only remedy in the event of a partial condemnation was termination of the lease;
- Whether the trial court erred in finding that the condemnation action commenced prior to Tenant‘s possession of the property; and
- Whether award of the entire amount of the condemnation settlement to landlord M & T is inequitable?
STANDARD OF REVIEW
A proceeding to allocate any condemnation funds is by statute a proceeding in equity.
Moreover, a case with both legal and equitable issues presents a divided scope of review. Thus, “a legal question in an equity case receives review as in law.” Sloan v. Greenville County, 356 S.C. 531, 546, 590 S.E.2d 338, 346 (Ct.App.2003) (citing Gunter v. Fallaw, 78 S.C. 457, 59 S.E. 70 (1907)). Questions of law may be decided with no particular deference to the trial court. Doe ex rel. Legal Guardian v. Barnwell School Dist. 45, 369 S.C. 659, 662, 633 S.E.2d 518, 519 (Ct.App.2006) (citing Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 327, 534 S.E.2d 672, 675 (2000)). This court may correct errors of law in both legal and equity actions. I‘On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing
LAW/ANALYSIS
Tenant contends that this case is one of contract interpretation and that the contractual agreement controls the allocation of the condemnation award.4 As such, Tenant claims that the Lease provides two remedies in the event of condemnation of the leased premises: (1) to have its rent proportionately reduced for the remaining portion of the lease term; and (2) to share in the condemnation award to the extent of any loss of its leasehold estate.
Lease provisions are construed under rules of contract interpretation. See United Dominion Realty Trust, Inc. v. Wal-Mart Stores, Inc., 307 S.C. 102, 105–07, 413 S.E.2d 866, 868-69 (Ct.App.1992) (applying the rules of contract construction to interpret the lease of a shopping center). One cardinal rule of contract interpretation is to ascertain and give effect to the intention of the parties. Chan v. Thompson, 302 S.C. 285, 289, 395 S.E.2d 731, 734 (Ct.App.1990). To determine the intention of the parties, the court “must first look at the language of the contract.” C.A.N. Enters., Inc. v. South Carolina Health and Human Servs. Fin. Comm‘n, 296 S.C. 373, 377, 373 S.E.2d 584, 586 (1988). The construction of a clear and unambiguous contract presents a question of law for the court. Ward v. West Oil Co., Inc., 379 S.C. 225, 665 S.E.2d 618 (Ct.App.2008); see also Pruitt v. S.C. Med. Malpractice Liab. Joint Underwriting Ass‘n, 343 S.C. 335, 339, 540 S.E.2d 843, 845 (2001).
It is also a question of law whether the language of a contract is ambiguous. South Carolina Dep‘t of Natural Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001). When a contract is unambiguous, clear, and explicit, it must be construed according to the terms the parties have used, to be taken and understood in their plain, ordinary, and popular sense. C.A.N. Enters., Inc., 296 S.C. at 377, 373 S.E.2d at 586. Where an agreement is clear and capable of legal construction, the court‘s only function is to interpret its lawful meaning and the intention of the parties as found within the agreement and give effect to it. Ebert v. Ebert, 320 S.C. 331, 338, 465 S.E.2d 121, 125 (Ct.App.1995). We are without authority to alter an unambiguous contract by construction or to make new contracts for the parties. C.A.N. Enters., Inc., 296 S.C. at 378, 373 S.E.2d at 587. A court must enforce an unambiguous contract according to its terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully. Lindsay v. Lindsay, 328 S.C. 329, 340, 491 S.E.2d 583, 589 (Ct.App.1997). Tenant concedes in its reply brief that the Lease is not ambiguous.
I. Rent Abatement
Tenant argues in several of its issues on appeal that the master-in-equity ignored the terms of the Lease‘s Condemna-
As noted, the Lease‘s Condemnation Clause under Article 32 is divided into two sections, 32(a) and 32(b). Article 32(a) applies only when all or part of the leased premises is taken by condemnation prior to the tenant‘s possession. Contrary to the trial court‘s findings, this event occurred after Tenant took possession of the property.5 Thus, according to its terms, Article 32(a) does not apply here.
Article 32(b) of the Lease addresses the rights and duties of the parties if part or all of the leased premises is taken subsequent to Tenant‘s possession. Because we view the condemnation to have occurred after Tenant took possession of the property, we find this article applicable.
Article 32(b) is subdivided into two distinct paragraphs. The first applies in the event of a partial or total taking by condemnation: Tenant may either (1) terminate the Lease; or (2) if not terminated, may claim restoration of the leased premises by Landlord. An entitlement to rent abatement and a proportional reduction in rent is separate and distinct from the subject of the second paragraph, which is the allocation of any portion of the condemnation award under the Lease.
As our supreme court has indicated, “[w]hen a contract is unambiguous, clear and explicit, it must be construed according to the terms the parties have used, to be taken and understood in their plain, ordinary and popular sense.” C.A.N. Enters., Inc., 296 S.C. at 377, 373 S.E.2d at 586. Moreover, leases are construed in the same manner as contracts:
The terms of a lease, like the terms of any contract, are construed to achieve the intent of the parties at the time the
lease was entered into. The courts must construe and enforce contracts as written, in order to preserve the fundamental right of freedom of contract. In general, therefore, parties may bind themselves as they see fit by contract, unless the contract would violate the law or is contrary to public policy.
Lexington Ins. Co. v. Tires Into Recycled Energy and Supplies, Inc., 136 N.C.App. 223, 522 S.E.2d 798, 800 (1999) (internal citations omitted). As such, it is generally held that parties may agree in the lease to a method or formula of valuation or compensation in the event of condemnation. See City and County of Honolulu v. Mkt. Place, Ltd., 55 Haw. 226, 517 P.2d 7, 15 (1973) (“Where a landlord and tenant have contractually agreed as to the disposition of compensation in the event of condemnation, such an agreement is generally held binding.“); City of Manhattan v. Galbraith, 24 Kan.App.2d 327, 945 P.2d 10, 12-13 (1997) (“[I]f the lease itself includes a provision in respect of the rights of the parties in the event of the condemnation of the leased premises, such provision is controlling, if applicable to the particular case.“) (citations omitted); City of Kansas City v. Manfield, 926 S.W.2d 51, 53-54 (Mo.Ct.App.1996) (“[S]pecific provisions in a lease spelling out the respective rights of the parties to that lease are valid and controlling in the event the property is condemned. Such lease provisions have uniformly been upheld.“) (citations omitted).
Here, according to the Lease‘s clear, explicit and unambiguous language, no right to an abatement of rent out of the condemnation award exists. Moreover, under these circumstances, whether Tenant is entitled to an abatement of rent is an issue beyond the limited scope of the matter referred to the master-in-equity; his sole duty was to determine the proportional share the landowner (Landlord) and Tenant should receive from the condemnation award. Bunkum v. Manor Props., 321 S.C. 95, 98, 467 S.E.2d 758, 760 (Ct.App.1996) (“Pursuant to Rule 53, SCRCP, a master has no power or authority except that which is given to him by the order of reference.“) (citing Smith v. Ocean Lakes Family Campground, 315 S.C. 379, 381, 433 S.E.2d 909, 910 (Ct.App.1993)). Any entitlement to rent abatement would be the subject of a separate contract action between Landlord and
II. Preservation of Grounds of Appeal Other Than Alternative Findings
Having disposed of the rent abatement argument, we next question whether Tenant has preserved any other grounds of appeal relating to the condemnation award beyond asserting that the terms of the contract should govern apportionment of the award rather than the common law rule, and beyond the challenge to the alternative findings. A reading of Tenant‘s briefs to this court suggests the gravamen of Tenant‘s position is that the contractual provisions of the Lease control and that Tenant is entitled to rent abatement.
It is well settled that an issue must have been raised to and ruled upon by the trial court to be preserved for appellate review. Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). Additionally, “[i]f the losing party has raised an issue in the lower court, but the court fails to rule upon it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review.” Elam v. South Carolina Dep‘t of Transp., 361 S.C. 9, 24 n. 4, 602 S.E.2d 772, 780 n. 4 (2004). Without an initial ruling by the trial court, a reviewing court simply would
Tenant asserted that Hamilton v. Martin, 270 S.C. 223, 225, 241 S.E.2d 569, 570 (1978) does not apply where a contract contains a condemnation clause and that Hamilton was a total taking case, but only raised this argument in the context of its contract analysis. Notwithstanding, Tenant agreed in its brief that where the terms of a lease are silent pertaining to the method of allocation, the common law is controlling. Since the master-in-equity did not address whether Hamilton was the appropriate common law method of valuation governing a partial taking instead of a total taking, Tenant had an obligation to preserve the issue pursuant to Rule 59(e), SCRCP. Elam, 361 S.C. at 24 n. 4, 602 S.E.2d at 780 n. 4. Moreover, although Tenant arguably made this assertion before the master-in-equity, it has now been abandoned on appeal as it has not been argued outside the applicability of the Lease.
Tenant‘s remaining grounds on appeal address either the master-in-equity‘s alternative findings or the alleged inequity of the allocation decision. Since we have addressed the alternative findings, and since we find the equity argument not preserved,7 we conclude Tenant is not entitled to a portion of
III. Leasehold Valuations for Total Takings and Partial Takings
While our preservation concerns are significant, we recognize, at a minimum, Tenant argued that the Lease controlled, not Hamilton, and we note that the Lease indicates Tenant was entitled to a portion of the condemnation award for “loss of leasehold.” We also recognize the statutory mandate in the condemnation context to engage in an equitable analysis of the apportionment of a condemnation award. As such, we analyze, for equitable and fairness purposes, Tenant‘s colorable assertion that the master-in-equity improperly relied upon the Hamilton method; pursuant to our equitable review under the statute, we nonetheless would affirm since we may do so for any reason in the record, whether or not raised and preserved.
Paragraph two under Article 32(b) directly addresses allocation of a condemnation award between the parties as compensation for expressly defined categories of damages. Tenant argues on appeal that this paragraph entitles it to compensation for any loss of its leasehold estate and that the master-in-equity erred in denying a portion of the award.
Specifically, the award allocation paragraph states:
Tenant shall be entitled to the award in connection with any condemnation insofar as the same represents compensation for or damage to Tenant‘s fixtures, equipment, non-permanent leasehold improvements and other property of Tenant, moving expenses as well as the loss of leasehold estate (i.e. the unexpired balance of the lease term immediately prior to such taking). Landlord shall be entitled to
the award insofar as same represents compensation for or damage to the fee remainder....
This section delineates the manner in which any condemnation award shall be allocated.
As indicated, the Lease specifically provides the items for which Tenant is to be compensated in the event of condemnation. Tenant asserts a “loss of leasehold estate” entitles it to a portion of the condemnation award. Because the manner in which “loss of leasehold estate” is calculated is not delineated by the Lease, the master-in-equity relied upon what he considered to be the common law standard for valuing a leasehold estate when considering the allocation of the condemnation award. See Farr v. Williams, 232 S.C. 208, 212, 101 S.E.2d 483, 485 (1957) (finding when a lease contains no provision as to the effect upon it of condemnation, the court looks to the common law rule).8
As previously noted, the master-in-equity here applied the same method of valuing a leasehold estate as used in Hamilton. In that case, there was a conflict between a landlord and tenant over the allocation of an award from the condemnation of leased premises. Hamilton, 270 S.C. at 225, 241 S.E.2d at 570. The master-in-equity there measured the leasehold estate as “the value of the use and occupancy of the leasehold for the remainder of the tenant‘s term, plus the value of the right to renew the lease, less the agreed rent which the tenant would pay for such use and occupancy.” Id. In short, the leasehold value in a total condemnation is the difference between the market value rent and the rent paid by the tenant over the full course of the lease including renewal options. However, it is important to note that the South Carolina Supreme Court merely relied upon the unappealed Hamilton formula as the law of that case procedurally, not as the law of
The Hamilton formula was later cited in Gray v. South Carolina Department of Highways and Public Transportation, 311 S.C. 144, 153, 427 S.E.2d 899, 904 (Ct.App.1992) (rejecting the capitalization of business earnings method as not conforming with the Hamilton formula for valuation of a leasehold estate) overruled by, Hardin v. South Carolina Dep‘t of Transp., 371 S.C. 598, 607-08, 641 S.E.2d 437, 442-44 (2007). In Gray, this court utilized Hamilton as a valid method for measuring the value of a leasehold interest in a case where “there was no physical taking of a portion of property in which [sublessee] had a leasehold interest,” but where the “property was no longer valuable as a service station after the [abutting] intersection was closed.” Gray, 311 S.C. at 153-54, 427 S.E.2d at 904. In short, this court applied the Hamilton formula to measure a leasehold interest where the damages (special injuries) from the closing of an intersection effectively resulted in a total taking of the sublessee‘s leasehold (it closed its business).10 Id.
The formula used in Hamilton is widely recognized as the proper method to measure a leasehold estate when the leased premises are deemed entirely condemned and taken. See, e.g., U.S. v. Petty Motor Co., 327 U.S. 372, 381, 66 S.Ct. 596, 90 L.Ed. 729 (1946) (“The measure of damages is the difference between the value of the use and occupancy of the leasehold for the remainder of the tenant‘s term, plus the value of the right to renew in the lease less the agreed rent which the tenant would pay for such use and occupancy.“); Pepsi-Cola Metro. Bottling Co., Inc. v. Romley, 118 Ariz. 565, 578 P.2d 994, 1001 (Ariz.Ct.App.1978) (holding the “proper measure of
Therefore, in a total taking, the tenant is usually entitled to the lease advantage, or “bonus value.” Simply stated, the “bonus value” is “the difference between the economic rental, which is the fair market value of the leasehold interest, and the contract rental, which is the actual rent paid according to the terms of the lease agreement, discounted to present value.” City of Riverside v. Progressive Inv. Club of Kan. City, Inc., 45 S.W.3d 905, 911 (Mo.Ct.App.2001).
A different method of valuation is commonly used where, as here, only a partial taking by condemnation of the leased premises occurs. This particular issue has not yet been addressed by the South Carolina Supreme Court. While there is a split of authority on the matter, the general rule in other jurisdictions is that, “where only a portion of the leasehold is condemned, the measure of damages is the difference between the fair market value of the lease before and after the
The fundamental rationale driving this view is two-fold. First, “it has generally been held that that which is taken or damaged is the group of rights which the so-called owner exercises in his dominion of the physical thing....” U.S. v. General Motors Corp., 323 U.S. 373, 380, 65 S.Ct. 357, 89 L.Ed. 311 (1945). Additionally, “[t]he right to occupy, for a day, a month, a year, or a series of years, in and of itself and without reference to the actual use, needs, or collateral arrangements of the occupier, has a value.” Id. Thus, a lessee, as temporary holder of these rights upon the leased premises, possesses a thing of value which must be compensated if taken unless the parties agreed otherwise. Second, if the lessee was
Therefore, even though Tenant did not actually occupy or use the strip of condemned property in the case at bar, it still paid rent for the total leased premises, which included the condemned area, and had dominion over it until taken. Furthermore, Tenant continues to pay the same monthly rent now as it did before the taking. Consequently, absent an agreement otherwise, Tenant normally would be compensated in accordance with the general common law rule for a partial taking upon proof of such damage, which is the difference between the fair market value of the lease before the taking, and the fair market value of the lease after the taking, projected over the remaining term of its lease and discounted to its present worth.
As to damages, “the burden is on a party pleading a fact to prove it.” LandBank Fund VII, LLC. v. Dickerson, 369 S.C. 621, 628, 632 S.E.2d 882, 886 (2006) (quoting Jackson v. Frier, 146 S.C. 322, 329, 144 S.E. 66, 68 (1928)) (internal quotation marks omitted). This general principle of litigation has been applied to disputes concerning apportionment of condemnation awards in other jurisdictions, and we apply it here as well. See, e.g., Mobil Oil Corp., 675 P.2d at 286 (“The owner of the leasehold estate bears the burden of establishing the damages sustained to its leasehold estate as a result of the partial taking of the land.“); Santa Fe Trail Neighborhood Redev. Corp. v. Coehn & Co., 154 S.W.3d 432, 444 (Mo.Ct.App. 2005) (stating the lessee has the burden to show any damages attributable to the loss of leasehold interest, and the balance of damages, if any, belong to the reversionary interest of landowners); J. & F. Holding Co., 123 A.2d at 29; State ex rel. State Highway Comm‘n v. Sherman, 82 N.M. 316, 481 P.2d 104 (1971) (holding that, during the apportionment trial, “[t]he burden was on [lessee] to establish her damages.“); City of Sioux Falls v. Naused, 88 S.D. 303, 218 N.W.2d 536, 539 (1974) (“Proof of tenancy in the condemned premises is not necessarily proof of compensable loss.“); Colley v. Carleton, 571 S.W.2d 572, 574 (Tex.App.1978) (“[T]he lessee has the burden to show the amount of the damages attributable to his leasehold interest, if any.... The balance of the damages, if any, would belong to the reversionary interest of the landowners.“).
The imposition of the burden of proof upon the lessee merely reflects the significant property interest of the landowner as fee simple owner, and recognizes that what is not proven as damages by a tenant belongs, or reverts, to the owner. Because of the strong policy of our State in favor of the ownership rights of the landowner, a rule allocating the burden of proof to a tenant not only is consistent with this policy, but also is fair since the landowner has permanently lost part of the property and would otherwise be entitled to the award. Moreover, the burden imposed upon a tenant to prove damages remains the same whether the allocation proceeding is in equity or law.
Here, the master-in-equity utilized an improper method of valuation for a partial taking. However, the record does not include all of the essential components of the appropriate valuation process in a partial taking situation. In estimating the economic rent, Tenant‘s expert stated the gross potential income was $373,000 per year. The expert calculated Tenant‘s damages using two alternative approaches, one using a 6.4 capitalization rate ($91,200) and the other using a 7.2 percent capitalization rate ($81,400).11 On direct examination, he also
agreed that $81,400 represented the fair market value loss to the value of Tenant‘s leasehold estate; however, this figure was solely and improperly based upon the original gross potential rental income prior to condemnation, not on the difference between the fair market value of the leasehold before and after the taking. The expert utilized a percentage based upon the land taken and applied it in part to the starting figure of economic rent. Thus, the expert‘s calculation for the loss to Tenant was individually based on the initial economic rent analysis and was not representative of the difference in the fair market values, i.e. the difference between what a willing and fully informed buyer would pay for the leasehold interest and the sum for which a willing and fully informed seller would sell the leasehold interest before and after the taking. The determination of this difference in fair market value is critical to a partial taking analysis because the damages suffered to a leasehold interest after a partial condemnation may not bear a direct correlation to the percent of the area condemned. See Great Atl. & Pac. Tea Co. v. State, 22 N.Y.2d 75, 291 N.Y.S.2d 299, 238 N.E.2d 705, 711 (1968) (holding the trial court‘s computation and award of lessee‘s damages linked directly to the percentage of property taken was in error). While there was evidence of the fair market value of the property in fee itself before and after the taking, the fair market value of the leasehold after the taking does not appear in the record. In support of our conclusion, Tenant even acknowledges in its brief that the expert “did not offer an opinion of what the rental value of the entire property was worth in the after condition.”
While we agree the master-in-equity erred in applying a total taking analysis as opposed to a partial taking analysis, we find no prejudice since the appellant failed to develop the record as to an essential component of the partial taking analysis. Similarly, if the supreme court were to adopt
Therefore, we need not decide with finality which method the supreme court would adopt because under either method, the record supports the determination by the master-in-equity that Tenant failed to meet its burden of proof. Accordingly, we find no prejudice and no reversible error. See Upchurch v. New York Times, 314 S.C. 531, 538, 431 S.E.2d 558, 562 (1993) (“We may affirm the trial judge for any reason appearing in the record.“) (citing Rule 220(c), SCACR).
The dissent contends we have reached beyond a preserved issue in our discussion of the proper method of valuation, yet also contends the statutory mandate of an equitable allocation proceeding need not be raised and preserved in light of our scope of review. Tenant clearly and consistently asserted to the trial court and in its briefs to this court that the contract controlled this dispute. Only on appeal, after arguing at trial that only the contract controls the entire dispute, does the Tenant ask this court to find the decision inequitable. Thus, our preservation concern is not addressed to our standard of review; rather, our preservation concern focuses solely on the arguments Tenant presented to the trial court. If Tenant contends it had properly asserted to the trial court that the
Notwithstanding, we respectfully recognize and the dissent appropriately notes our broad scope of review in an equity proceeding. We further recognize a small portion of the leased premises was taken and have considered the appropriateness of a remand. However, even pursuant to our scope of review, we normally would not turn our attention away from appellate preservation rules. Tenant had the burden of proof and failed to meet its burden under either a legal or equitable standard of review. Utilizing our right to make factual findings pursuant to an equitable standard of review is of no avail since the record does not present evidence allowing us to find missing facts to meet even the erroneous standard of Hamilton, or any other standard we propose. Moreover, pursuant to an equitable standard of review, we are not bound to accept, and we specifically reject, the testimony of the expert based upon our previous discussion.
Consequently, we affirm the decision of the master-in-equity. While this conclusion may appear harsh, we are again reminded by the Lease that Tenant may still seek a separate contractual claim against Landlord for rent abatement if necessary, which in part, gives efficacy to Tenant‘s position that the contract is controlling over this dispute. In fact, not only does Landlord acknowledge this possibility of contractual rent abatement in its brief to the court, but also Tenant admits in its reply brief that it is not entitled to recovery for both rent reduction and loss of leasehold. Thus, we are not convinced a remand is appropriate, especially in light of Tenant‘s contractual agreement. Quite simply, equity would not lend itself to both an outright award of the condemnation proceeds as well as contractual rent reduction.
CONCLUSION
We conclude Tenant is not entitled to a portion of the condemnation award based upon contractual rent abatement;
Therefore, the decision of the master-in-equity is accordingly
AFFIRMED AS MODIFIED.
GOOLSBY, A.J., concurs.
HEARN, C.J., concurring in part and dissenting in part:
Respectfully, I concur in part, and dissent in part. I would reverse and hold that the long-term Tenant is entitled to the portion of the condemnation award which is supported by the only evidence adduced at trial, or, in the alternative, I would reverse and remand to allow the introduction of evidence under the correct method of valuation for a partial taking.
I agree with the majority that only Article 32(b) of the Lease‘s Condemnation Clause applies here, as Tenant had taken possession of the property prior to the institution of the condemnation proceeding. Additionally, the order of reference limited the scope of the Master‘s findings to the proper apportionment of the condemnation award; therefore, any prayer for rent abatement under the Condemnation Clause must be the subject of a separate action. I also agree the Master erred in his alternative findings that Tenant‘s sole remedy was to terminate the lease, and that the Condemnation Disclosure operated to exclude the condemned area from analysis under the Condemnation Clause.
However, notwithstanding the interpretation of the contractual Condemnation Clause, I find that the main purpose of this proceeding was to apportion the condemnation award, which sounds in equity, as specifically prescribed by
Generally, a lessee, as the holder of a constitutional property interest, or as an “owner” under eminent domain statutes, is entitled to just compensation when all or part of the leasehold interest is lost by condemnation. South Carolina State Highway Dept. v. Hammond, 238 S.C. 317, 120 S.E.2d 21 (1961). Moreover here, the Condemnation Clause specifically provides Tenant is entitled to a portion of any condemnation award for a loss of its leasehold estate. At the time the property was partially condemned, Tenant had over seventy-three years remaining on its seventy-five year lease and presented expert testimony explaining the extent to which the condemnation diminished its interest. Conversely, Landlord presented no evidence Tenant‘s leasehold interest was not adversely affected, nor did it object to the method of valuation used by Tenant‘s expert. Despite this, the majority finds Tenant is not entitled to any portion of the condemnation award, a result the majority acknowledges “may appear harsh.” Based on our standard of review, I believe this result is not only harsh, but inequitable. I would reverse and award Tenant the sum of $81,400, the amount testified to by Tenant‘s expert and the only figure supported in the record.
The majority posits, without actually adopting, a new rule in this jurisdiction for the valuation of a leasehold in the case of a partial taking. While the scholarship inherent in the majority‘s opinion is undeniable, this issue is not before us. No argument was advanced to the Master or before us on appeal that a different method of valuation should be applied where the take is partial. See Langley v. Boyter, 284 S.C. 162, 181, 325 S.E.2d 550 (Ct.App.1984) rev‘d on other grounds, 286 S.C. 85, 332 S.E.2d 100 (1985) (“[A]ppellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked.“). Moreover, while I agree with the majority‘s conclusion that the Master erred in the method he used to value the Tenant‘s interest, were I to adopt a new method of valuation, I would reverse and remand. I believe it is highly inequitable in this statutorily-mandated equity proceeding, not to afford Tenant the benefit of a remand in order to develop the record under a method of valuation which has heretofore never been recognized in South Carolina. See Mobil Oil Corp. v. Phoenix Cent. Christian Church, 138 Ariz. 397, 675 P.2d 284 (1983) (reversing and remanding under similar circumstances where the appellate court disagreed with the valuation method applied by the lower court in a partial condemnation proceeding).
Accordingly, I concur in part and dissent in part.