City of Dalton v. Smith

• Decision Date: 28 October 1993
• Docket Number: No. A93A1430,A93A1430
• Citation: 437 S.E.2d 827,210 Ga.App. 858
• Parties: CITY of DALTON v. SMITH et al.
• Court: Georgia Court of Appeals

Page 827

437 S.E.2d 827

210 Ga.App. 858

CITY of DALTON v. SMITH et al.

No. A93A1430.

Court of Appeals of Georgia.

Oct. 28, 1993.

Reconsideration Denied Nov. 12, 1993.

Certiorari Denied Jan. 27, 1994.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, Daniel T. Strain, Jr., Dalton, for appellant.

Minor, Bell & Neal, John T. Minor, III, Steven B. Farrow, Dalton, for appellees.

Teresa B. Smith, pro se.

JOHNSON, Judge.

The City of Dalton filed a petition to condemn land owned by Mark and Terry Smith. The superior court appointed a special master to conduct the condemnation proceeding. The special master awarded the Smiths $182,000 as the fair market value of the condemned property. The Smiths appealed to the superior court, challenging the special master's finding as to the property's value. The jury returned a verdict in favor of the Smiths in the amount of $271,126. The court entered final judgment on the verdict. The city appeals from that judgment.

1. The city argues that the court erred in charging the jury on the statute of frauds requirement that a contract concerning an interest in land must be in writing to be binding because the Smiths waived an affirmative defense based on the statute of frauds by failing to raise it in the pleadings. See Brantley Co. v. Simmons, 196 Ga.App. 233, 234, 395 S.E.2d 656 (1990). We cannot consider this argument because the trial transcript reveals that the city's objection to the statute of frauds charge was made on other grounds, "and on appeal only issues properly raised before the trial court will be considered." (Citations and punctuation omitted.) Zappa v. Auto. Precision Machinery, 205 Ga.App. 584, 585(4), 423 S.E.2d 286 (1992); Ramey v. Leisure, Ltd., 205 Ga.App. 128, 133(3), 421 S.E.2d 555 (1992). "Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court." (Citations and punctuation omitted.) Walls v. State, 204 Ga.App. 348, 349(2), 419 S.E.2d 344 (1992).

2. The city contends that the court erred in excluding from evidence a document purporting to grant the Smiths an easement across the condemned property to their remaining property. "Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded." OCGA § 24-2-1; King Cotton, Ltd. v. Powers, 190 Ga.App. 845, 850(4), 380 S.E.2d 481 (1989). The document in question was executed by the city during the trial, over a year after the date the property was actually taken. The trial court properly excluded the document as irrelevant since the only question for decision in this case was the value of the property at the time of its actual taking. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 418, 219 S.E.2d 707 (1975); Brookhaven Assoc. v. DeKalb County, 187 Ga.App. 749, 750(1), 371 S.E.2d 231 (1988); City of Atlanta v. West, 123 Ga.App. 255, 256-257(1), 180 S.E.2d 277 (1971).

3. In its third and fourth enumerations of error, the city contends that the court's jury charge regarding admissions in judicio was insufficient and that the court erred in refusing to give four of its requested charges on such admissions. "It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error." (Citations and punctuation omitted.) Swint v. Smith, 204 Ga.App. 54, 55(2), 418 S.E.2d 375 (1992). Here, the court did not err in refusing to give the requested charges because the charge actually given regarding admissions in judicio was sufficient. These enumerated errors are without merit.

4. The city complains that the court erred in giving four of the Smiths' requested charges regarding the law of access to a public road. The record reveals that the city waived any objections to these charges by failing, upon inquiry by the court, to object or reserve exceptions to these charges. Rodriquez v. Davis, 202 Ga.App. 550(1), 415 S.E.2d 41 (1992); Hunter v. Hardnett, 199 Ga.App. 443, 445(3), 405 S.E.2d 286 (1991).

5. The city argues that the court erred in refusing to give its written request to charge the jury that loss of privacy caused by a public project is not a proper element of damages. "[W]here the trial court refused to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge. It is only necessary that the refusal to charge be objected to at some point." (Citations and punctuation omitted.) Kres v. Winn-Dixie Stores, 183 Ga.App. 854, 856-857(3), 360 S.E.2d 415 (1987). The portion of the trial transcript cited by the city in support of its claim that it objected to the court's refusal to give the requested charge actually shows that the city did not make such an objection. Our review of the entire record fails to reveal that the city, at any point during the trial, excepted to the court's refusal to give the requested charge. The city therefore has waived appellate review of the court's ruling. Lewis v. Noonan, 142 Ga.App. 654, 656(4), 236 S.E.2d 900 (1977).

Even if the city had not waived the objection, it is without merit because the requested charge is not an entirely correct and accurate statement of the law. Lee v. Bartusek, 205 Ga.App. 551, 422 S.E.2d 570 (1992). Loss of privacy is "an element to be considered in determining whether there were consequential damages to the remainder." Macon-Bibb County Water, etc., Auth. v. Reynolds, 165 Ga.App. 348, 351(2), 299 S.E.2d 594 (1983). The trial court did not err in refusing to give the requested charge.

6. The city contends that the court erred in failing to give its requested charge on the Smiths' duty to mitigate damages. The only evidence cited by the city in support of such a charge is the fact that the Smiths objected to the admission into evidence of the...