Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, Inc., A92A2319

• Citation: 428 S.E.2d 687,207 Ga.App. 693
• Decision Date: 09 March 1993
• Docket Number: No. A92A2319,A92A2319
• Parties: CLAYTON COUNTY BOARD OF TAX ASSESSORS v. LAKE SPIVEY GOLF CLUB, INC., et al.
• Court: Georgia Court of Appeals

Page 687

428 S.E.2d 687

207 Ga.App. 693

CLAYTON COUNTY BOARD OF TAX ASSESSORS v. LAKE SPIVEY GOLF CLUB, INC., et al.

No. A92A2319.

Court of Appeals of Georgia.

March 9, 1993.

Foster & Foster, Michael D. Anderson, Jonesboro, for appellant.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, Jonesboro, for appellees.

JOHNSON, Judge.

The Clayton County Board of Tax Assessors determined that the fair market value of the Lake Spivey Golf Club as of January 1, 1991, was $2,770,000. Lake Spivey Golf Club, Inc. and Golf South, Inc. d/b/a Lake Spivey Golf Club appealed the board's decision to the superior court. The board served requests for production of documents on Lake Spivey, Golf South and two nonparties, Tara State Bank and the Small Business Administration (SBA). Lake Spivey and Golf South filed a motion for a protective order to prevent the board from obtaining any of the requested documents. The board filed a motion to compel discovery. At the hearing on the motions, the board presented one witness in support of its motion while Lake Spivey and Golf South presented no evidence. The court entered an order granting the motion for a protective order of Lake Spivey and Golf South and denying the board's motion to compel. In its order the court also ruled that a prior jury verdict establishing the fair market value of the property on January 1, 1990, as $1,700,000 is admissible evidence at the trial of this case. We granted the board's application for interlocutory review of the court's order.

1. The board correctly contends that the trial court erred in ruling that the prior jury verdict as to the 1990 value of the property is admissible evidence. "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. The issue in this case is the fair market value of the golf club on January 1, 1991. The opinion of a jury, after hearing conflicting evidence, as to the value of that property a year earlier does not bear upon this issue either directly or indirectly. The instant case is analogous to condemnation cases in which the only question is the fair market value of the property on the date of the actual taking. In those cases, the jury cannot consider the value of the property prior to the actual taking. Brookhaven Assoc. v. DeKalb County, 187 Ga.App. 749, 750(1), 371 S.E.2d 231 (1988). Similarly, the jury in the instant case cannot consider the value of the Lake Spivey Golf Club prior to January 1, 1991. Only evidence which shows the value of the property on that date is relevant and admissible.

Moreover, direct testimony as to market value is in the nature of opinion evidence. OCGA § 24-9-66. "To give an opinion on value the witness must supply reasons by showing knowledge, experience or familiarity as to value." City of Alma v. Morris, 180 Ga.App. 420, 421-422(3), 349 S.E.2d 277 (1986). In the present case, there is no procedure by which the parties could question the jury in the prior case about the reasons for its opinion of the property's 1990 value and the prior jury could not relate its opinion to the value of the property on January 1, 1991. The instant case cannot be used as a vehicle to retry that prior case. The trial court abused its discretion in ruling that the prior jury verdict is admissible evidence. See generally West v. Nodvin, 196 Ga.App. 825, 827(2)(b), 397 S.E.2d 567 (1990).

2. The board contends that the trial court erred in issuing a protective order limiting discovery from the appellees and the two nonparties. The board asked Lake Spivey and Golf South to produce accounting records, income tax returns and appraisals of the value of the golf club. The board asked Tara State Bank and the SBA to produce any financial statements and any appraisals of the golf club's value submitted by Lake Spivey or Golf South in connection with loan applications. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." OCGA § 9-11-26(b)(1).

Lake Spivey and Golf South argue that the documents requested from Tara State Bank and the SBA are privileged under OCGA § 24-9-27(c) as advice of and consultation with professional advisers. This argument is wholly without merit. The documents requested by the board may contain admissions by Lake Spivey or Golf South, and other evidence, as to the value of the property in question. Such admissions are not the advice of a professional adviser and they cannot be considered part of a privileged consultation simply because they are included in a loan application.

The appellees also argue that the documents in the bank's possession are protected under OCGA §...