City of Atlanta v. Brookins

• Decision Date: 02 November 1978
• Docket Number: No. 56400,56400
• Citation: 147 Ga.App. 869,250 S.E.2d 577
• Parties: CITY OF ATLANTA v. BROOKINS et al.
• Court: Georgia Court of Appeals

Page 577

250 S.E.2d 577

147 Ga.App. 869

CITY OF ATLANTA v. BROOKINS et al.

No. 56400.

Court of Appeals of Georgia.

Argued Sept. 6, 1978.

Decided Nov. 2, 1978.

Ferrin Y. Mathews, Roswell, W. Roy Mays, III, Atlanta, for appellant.

Gray, Hinson & Weyant, John C. Gray, Atlanta, for appellees.

McMURRAY, Judge.

This is a condemnation case, tried by a jury following the award by a special master ($11,500) and an appeal of same by the condemnees. A verdict returned in favor of the condemnees in the amount of $34,064 became the judgment of the court which also awarded $6,000 for "attorneys fees and reasonable and necessary expenses of litigation" as a part of just and adequate compensation. Condemnor appeals. Held :

1. The City of Atlanta having filed its enumeration of errors and brief in accordance with Rule 14 (Code Ann. § 24-3614) and Rule 16 (Code Ann. § 24-3616), the condemnees' motion to dismiss the appeal is denied.

2. Based upon the decisions of Smaha v. State Hwy. Dept., 114 Ga.App. 60(2), 150 S.E.2d 327, and Ga. Power Co. v. Brooks, 207 Ga. 406, 410, 62 S.E.2d 183, during the examination of a witness who was testifying as to comparable properties, the condemnor objected to testimony in regard to a particular sale for "$23.55 a square foot," later "sold to the City for $51.00 per square foot" (the city being the condemnor here), and moved for a mistrial because it involved "a sale to a governmental authority." The motion was subsequently denied. However, the trial court sustained the objection to the testimony and instructed the jury to disregard this testimony as inadmissible and improper, as the law does not permit the jury to consider a price paid by a governmental agency for land if same is "not free from compulsion," and "the price offered does not reflect upon the fair market value of the land." See in this connection Ga. Power Co. v. Brooks, 207 Ga. 406(2), 410, 62 S.E.2d 183, supra. We also note the trial court admonished, rebuked and reprimanded counsel for the condemnees and the witness for presenting this particular evidence and again instructed the jury "to totally ignore it."

The testimony objected to here did not show whether or not the sale was based upon compulsion resulting from a forced sale due to condemnation or any other necessity of the city to acquire the property. However, we do not have to decide whether the testimony excluded was admissible as it was not shown that the sale resulted from compulsion or necessity due to condemnation or otherwise. The court ordered the testimony stricken because it involved a sale "to a governmental unit." The trial court did not thereafter err in denying the motion for mistrial, since it struck the testimony, and no abuse of discretion has been shown. Bowman v. Bowman, 230 Ga. 395, 396(1), 197 S.E.2d 372; Salmon v. Salmon, 223 Ga. 129(1), 153 S.E.2d 719.

3. At the conclusion of one of the witnesses' testimony the condemnor moved to strike same because his testimony attempted to arrive at a value of the property being condemned by testifying as to alleged comparable properties which it contends were not similar in terms of size, location and shape. However, counsel for condemnor did not object to this testimony as it was given to the jury and now seeks to strike the testimony in whole, contending the properties were not similar in size, location and shape. Generally, evidence of sales of property similar to that in question made at or near the time of the taking is competent evidence and may be considered to throw light on the issue of the value of the property sought to be condemned. West v. Fulton County, 95 Ga.App. 320, 321, 97 S.E.2d 785; Flemister v. Central Ga. Power Co., 140 Ga. 511, 514, 79 S.E. 148; Housing Authority v. Spink, 91 Ga.App. 72, 85 S.E.2d 80; Smaha v. State...