Dendy v. Metropolitan Atlanta Rapid Transit Authority, 63591

CourtUnited States Court of Appeals (Georgia)
Citation293 S.E.2d 372,163 Ga.App. 213
Docket NumberNo. 63591,63591
Decision Date06 July 1982

Eugene R. Simons, Atlanta, for appellant.

Charles N. Pursley Jr., Jo Lanier Meeks, Atlanta, for appellee.

QUILLIAN, Chief Judge.

This action arose in 1978 when the City of Atlanta filed a complaint in the Fulton Superior Court seeking to condemn certain portions of the property belonging to the condemnee, Frederick H. Dendy, Jr. The city desired to condemn two construction easements and the rearmost portion of the condemnee's property in fee simple, and certain rights of access to a side street. Although the petition named others who might claim an interest in the property as condemnees, and all condemnees answered the complaint, the only condemnee involved in this appeal who made a claim of interest was Dendy.

The city amended the complaint by substituting a new legal description and by condemning all rights in two alleys to the rear of the property. A special master having been appointed, he entered an award to Dendy in the sum of $222,000.00. The City of Atlanta duly filed its appeal to the Fulton Superior Court, after which MARTA was substituted as a plaintiff and the style of the case was amended to reflect this. The case came on for trial at which the jury returned a verdict finding just and adequate compensation for Dendy's property to be $110,175.72. Thereupon, judgment was entered against Dendy in the amount of $111,824.28, this being the difference between the sum awarded by the special master and the verdict of the jury. Dendy filed a motion for a new trial, and subsequently an amendment thereto. The motion for new trial was overruled and from that judgment, appeal was taken. Held :

The following background facts should be noted. The entire parcel of land owned by the condemnee Dendy consisted of approximately 30,000 square feet. A building constructed in 1947 occupied a majority of that square footage (approximately 23,000 square feet). This condemnation proceeding involved a partial taking of Dendy's property in that MARTA acquired 7,085 square feet of land and 10,098 square feet of the building from the back portion of the property. While only approximately 7,000 square feet was actually required for location of the proposed MARTA station, in order for construction to take place and the project be completed, 3,013 more square feet of the building had to be demolished and MARTA acquired a temporary construction easement to such portion for 30 months, and also a temporary construction easement for three months to approximately 750 square feet in order to restore the demolished rear wall of the building. The actual date of taking in this case was August 23, 1978. We also observe that at issue were alleys at the rear of the condemnee Dendy's property, which were used as part of MARTA's right-of-way requirements for the terminal station at Garnett Street. Moreover, the pedestrian mall for that station was subsequently located where the alleys were formerly located.

Although the motion for a new trial raised the issue of the general grounds, and the denial was enumerated as error, there is no specific question as to the sufficiency of the evidence on appeal. Instead, the condemnee raises several enumerations of error which deal basically with four principal questions which shall be considered seriatim.

1. The first issue presented is whether the trial court erred in striking testimony by an expert witness as to the replacement cost of the portion of the building condemned. The witness, Chastain, was qualified as an expert in the field of construction, but admitted he did not know the elements or types of depreciation that affect the market value of a building. The witness testified that in his opinion the replacement cost of the building was $18.00 per foot. He arrived at this figure from an amount of $22.00 per square foot, as the cost, new, to replace the building, and from that figure he deducted $4.00 per square foot for replacement of certain fixtures. He pointed out that the 30 year-old building had a useful life of another 50 to 60 years. The $4.00 deduction included those items which would have to be replaced over that 50 to 60-year span, such as the sprinkler system, the electrical system and the heating system.

In State Highway Department v. Murray, 102 Ga.App. 210(1), 115 S.E.2d 711, this court held "In a condemnation action evidence of the replacement cost of the property to be taken is relevant and admissible; however, in a situation where other factors must be taken into account in determining the fair value of the property, if a replacement cost is the only evidence as to value of the property, there is not sufficient evidence of value or damage in the record which will justify a verdict of the jury fixing the amount the condemnee is entitled to receive, and accordingly, upon proper motion, the replacement cost testimony should be stricken from the record." The decision pointed out: "In the case of an absolutely new house, the reproduction cost might possibly be the best measure of damages. However, in the case of property which has some age, depreciation and other factors must of necessity be considered." Id., pg. 214, 115 S.E.2d 711. The principles enunciated in Murray, supra, have been applied in other cases. Polk v. Fulton County, 96 Ga.App. 733, 736, 101 S.E.2d 736; Zeeman Manufacturing Co., Inc., et al., v. L. R. Sams Co., Inc., 123 Ga.App. 99, 179 S.E.2d 552; State Highway Department v. Clark, et al., 123 Ga.App. 627(3), 181 S.E.2d 881; Housing Authority, City of Atlanta v. Goolsby, et al., 136 Ga.App. 156, 159, 220 S.E.2d 466. Compare State Highway Department v. Thomas, et al., 106 Ga.App. 849, 851(2), 128 S.E.2d 520; Department of Transportation v. Dent, et al., 142 Ga.App. 94(2), 235 S.E.2d 610; Department of Transportation v. Kendricks, 150 Ga.App. 9, 12(5), 256 S.E.2d 610. In Zeeman, supra, this court emphasized: "The courts have generally held in this context that the owner or lessor is not entitled to replacement of an old structure without deduction for depreciation of the old one." Id. at 102, 179 S.E.2d 552.

MARTA argues that the testimony was properly stricken since the record clearly reveals the condemnee failed to take into account depreciation in arriving at replacement costs. The condemnee argues that the striking of the testimony was error, since Murray involved five houses of varying age, from two to twenty years old; thus, in that case replacement costs would not be enough without showing depreciation. Furthermore, it is contended that Murray, supra, should not be taken on its face for any more than holding that replacement cost alone is insufficient, and that a party need not show specifically depreciation, but that the showing of any other factor is sufficient.

In our consideration of this issue we recognize the guiding principle that utilization of the replacement cost method based on the expenses necessary to construct a new building substantially equivalent to the old building would not be an accurate figure for the jury to consider unless depreciation and other factors were figured. Our determination must be as to what constitutes the necessary showing as to depreciation and other factors. Department of Transportation v. Brand, et al., 149 Ga.App. 547, 548(3), 254 S.E.2d 873 was a condemnation proceeding in which this court considered the admissibility of certain evidence. Our decision recited: "The carpenter also gave his opinion of the value of the house, using the replacement cost method. The department moved to strike this testimony on the ground that the witness had not allowed for depreciation. The trial judge thereupon allowed the witness to be recalled. He testified on re-direct examination that since the house was made out of concrete block, only the roof had suffered any substantial depreciation. He further stated that the roof was about ten years old and would last another ten years, and gave an estimate of what it would cost to replace the roof. The department did not cross examine. We hold that the jury was provided with sufficient evidence upon which to make a determination of how much the house had depreciated."

Here the testimony was that as of the time of taking, August 23, 1978, the building in question was 30 years old and apparently had a useful life remaining of some 50 to 60 more years. We also have testimony by the witness as to what it would cost to replace the building at that time (in 1978). Thus, although there was no clear-cut testimony as to depreciation, the same factors are present in this case as were found in Department of Transportation v. Brand, 149 Ga.App. 547, 254 S.E.2d 873, supra, to be sufficient for the jury to make a determination. Therefore, it cannot be said that evidence of other factors is so lacking as to require the rejection of the testimony. See Department of Transportation v. Kendricks, 150 Ga.App. 9, 12, 256 S.E.2d 610, supra.

"Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas. Ga. Power Co. v. Harwell, 113 Ga.App. 653, 654, 149 S.E.2d 376 (1966). After a witness has given her basis for opinion evidence as to value it is up to the jury to determine its weight. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 5, (76 S.E. 387) (1912); Dept. of Transportation v. Worley, 150 Ga.App. 768, 772, 258 S.E.2d 595 (1979)." Toney v. Johns, 153 Ga.App. 880, 882, 267 S.E.2d 298.

The trial judge abused his discretion in striking the testimony of the witness Chastain.

2. The trial judge struck a portion of the testimony of the condemnee Dendy, who attempted to give a value based in part on cost figures he received from the witness Chastain. MARTA argues the testimony was properly...

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    • United States Court of Appeals (Georgia)
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