Clayton County Water Authority v. Harbin

• Decision Date: 12 July 1989
• Docket Number: No. A89A0738,A89A0738
• Citation: 384 S.E.2d 453,192 Ga.App. 257
• Parties: CLAYTON COUNTY WATER AUTHORITY v. HARBIN.
• Court: Georgia Court of Appeals

Page 453

384 S.E.2d 453

192 Ga.App. 257

CLAYTON COUNTY WATER AUTHORITY v. HARBIN.

No. A89A0738.

Court of Appeals of Georgia.

July 12, 1989.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, Jonesboro, Smith & Welch, A.J. Welch, Jr., McDonough, for appellant.

John L. Watson, Jr., Jonesboro, for appellee.

BANKE, Presiding Judge.

The Clayton County Water Authority instituted condemnation proceedings pursuant to OCGA § 22-2-1 et seq. to acquire 23.6 acres of land owned by the appellee. (Certain other property in which the appellee owned an interest was also included in the original condemnation petition but has since been deleted from the proceeding.) The appellee filed an appeal to the superior court pursuant to OCGA § 22-2-80, protesting the amount of compensation awarded by the assessors, and a subsequent jury trial on the issue resulted in a verdict in his favor. The condemnor deposited the difference between the jury's award and the assessors' award into the registry of the trial court and filed a notice of appeal to this court. The appellee subsequently moved the trial court to disburse that money to him, but that motion was denied on the theory that the pending appeal acted as a supersedeas to the distribution of the funds. The initial amount awarded by the assessors has, however, been distributed to the appellee. Held:

1. The appellee has moved this court to dismiss the appeal, contending that the condemnor was required to pay the difference between the jury's award and the assessors' award directly to him rather than into the registry of the court in order to satisfy the "first paid" requirement of Art. I, Sec. III, Par. I(a) of the Georgia Constitution of 1983. See generally City of Atlanta v. Wright, 159 Ga.App. 809, 285 S.E.2d 250 (1981). We disagree.

In City of Gainesville v. Loggins, 224 Ga. 114, 160 S.E.2d 374 (1968), relied on by the condemnee in support of his dismissal motion, the Georgia Supreme Court stated that "[w]here the appeal is from a jury verdict and judgment based thereon for an amount in excess of the original award, and the judgment directs to whom the payment is to be made, then the payment or tender to the condemnee in accordance with such judgment is mandatory under the requirement of the Constitution that just and adequate compensation be first paid." Id. at 117, 160 S.E.2d 374. However, it is apparent from the later decision in Paulk v. Ga. Power Co., 231 Ga. 721, 204 S.E.2d 154 (1974), that the "first paid" requirement may also be satisfied by tendering payment of the additional amount into the registry of the court. Accord City of Douglas v. Carson, 118 Ga.App. 29, 162 S.E.2d 745 (1968); Pickens County v. Darnell, 142 Ga.App. 281, 235 S.E.2d 677 (1977). The motion to dismiss is accordingly denied.

2. While the condemnor's expert witness was being cross-examined by counsel for the appellee, the following exchange occurred: "Q. [H]ow far off the flood plain does the first flood have to be under the ordinance in Henry County? A. I don't remember. I've read it, but to make that.... Q. Just answer my question, please sir. A. I don't know. But let me explain a little bit, please, sir. There is a subdivision being developed next door...." On motion by the appellee, the court disallowed any further explanation by the witness, and the condemnor enumerates that ruling as error on appeal.

As a general rule, a witness must be given a full and adequate opportunity to explain his answer to a question. Brown v. Wilson, 55 Ga.App. 262(2), 189 S.E. 860 (1937). However, "[t]he burden is on the party seeking reversal to show not only error, but also injury arising from the alleged error." Ga. Power Co. v. Bishop, 162 Ga.App. 122, 126, 290 S.E.2d 328 (1982). As no offer of proof was made in the present case regarding what explanation the witness would have made, we hold that this enumeration of error establishes no ground for reversal. See generally Anderson v. Jarriel, 224 Ga. 495(3), 162 S.E.2d 322 (1968); Hyles v. Cockrill, 169 Ga.App. 132(1), 312 S.E.2d 124 (1983).

3. The condemnor contends that the trial court erred in allowing the appellee to offer his own opinion concerning the value of his land. The appellee stated that his opinion was based on comparisons of land sales in the area and on inquiries which he had made to a real estate broker.

"Whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is a decision to be made by the trial court, and this decision will not be disturbed absent an abuse of discretion." Getz Svcs., v. Perloe, 173 Ga.App. 532, 536-7, 327 S.E.2d 761 (1985). One need not be an expert or dealer in real estate in order to give an opinion regarding its value if he "has had an opportunity for forming a correct opinion." OCGA § 24-9-66. Also, opinion testimony regarding the market value of property is not rendered inadmissible merely because it depends to some extent upon hearsay. See Getz Svcs., v. Perloe, supra. Applying these principles, we find no abuse of discretion by the trial court in allowing the testimony at issue. Accord Dept. of Transp. v. McLaughlin, 163 Ga.App. 1(3), 292 S.E.2d 435 (1982); Dept. of Transp. v. Worley, 150 Ga.App. 768(7), 258 S.E.2d 595 (1979).

4. The condemnor contends that the trial court erred in denying its motion to strike certain testimony offered by the appellee concerning the terms of a settlement offer which had been made to him. See OCGA § 24-3-37. However, we conclude that the condemnor waived this objection by failing to interpose it at the time the testimony was offered. See generally Woodruff v. Naik, 181 Ga.App. 70, 71, 351 S.E.2d 233 (1986).

5. In its final enumeration of error, the condemnor takes exception to a portion of the...