Department of Transp. v. Sharpe, A95A1253

• Decision Date: 17 November 1995
• Docket Number: No. A95A1253,A95A1253
• Parties: DEPARTMENT OF TRANSPORTATION v. SHARPE et al.
• Court: Georgia Court of Appeals

Page 695

465 S.E.2d 695

219 Ga.App. 466

DEPARTMENT OF TRANSPORTATION v. SHARPE et al.

No. A95A1253.

Court of Appeals of Georgia.

Nov. 17, 1995.

Reconsideration Denied Dec. 14, 1995.

Certiorari Granted March 11, 1996.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Atlanta, John A. Draughon, Assistant Attorney General, Sell & Melton, Michelle W. Johnson, Macon, for appellant.

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., Perry, for appellees.

BLACKBURN, Judge.

This is the second appearance of this condemnation case before this Court. In Dept. of Transp. v. Sharpe, 213 Ga.App. 549, 445 S.E.2d 343 (1994), we reversed the judgment entered on the jury's verdict based upon the trial court's erroneous instruction to the jury. The case was returned for a second trial following which the jury awarded condemnees R.G. Sharpe and Dabney Sharpe, individually and as administrators of the estate of C.W. Sharpe, $850,000 for the value of the 19.289 acres of wooded land containing limestone deposits which was condemned by the Department of Transportation (DOT). The award was far in excess of the $23,750 loss set by the DOT's expert appraiser. Judgment was entered on the jury's verdict, and this appeal followed. Specifically, the DOT maintains that experts Robert Gerdhardt and Joseph Limb assigned values to the condemned property as if the eight million tons of limestone deposits had been mined when in fact, no mining had occurred. The DOT asserts that this testimony was improper.

1. The DOT made no contemporaneous objection to the testimony of the experts. Rather, it moved to strike portions of the expert's testimony at the close of evidence. Condemnees assert this method of excluding evidence is untimely and improper. The Supreme Court has previously held that by allowing evidence to be introduced without objection, a party does not necessarily waive the right to move to have the evidence excluded any time before the case goes to the jury. Patton v. Bank of LaFayette, 124 Ga. 965, 974, 53 S.E. 664 (1906).

However, only certain evidence can be excluded by a motion to strike made subsequent to its admission. Patton, supra, raised a similar issue regarding hearsay testimony. "[A] distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid. Hearsay testimony has no probative force whatsoever [cit.], and its only effect is to prejudice the party against whom it is offered. Evidence of a secondary nature, the only objection to which is that it was received without the preliminary foundation for its introduction being first laid, stands upon an altogether different footing; and if admitted without objection, it is to be treated as altogether competent." Patton, supra at 974, 53 S.E. 664; see also Mable v. State, 261 Ga. 379, 381, 405 S.E.2d 48 (1991).

The evidence at issue in this case may be analogized to the hearsay evidence addressed in Patton. This is not an instance of proper evidence being admitted without the necessary foundation. Rather, the DOT asserts that the condemnees offered testimony evidencing the wrong measure of damages. Thus, the DOT claims, the evidence is altogether without probative force as to the condemnees' damages and only served to prejudice the jury by giving them an improper notion of the condemned land's value. Under the facts of this case, we determine that the DOT sought to strike illegal evidence, not secondary evidence, as those terms are defined in Patton, and, accordingly, the DOT's motion to strike was appropriate. ¹

2. Having determined that the DOT's motion to strike properly preserved its objection, we must determine whether the trial court erred in not granting the DOT's motion. Gerdhardt, a real estate appraiser, testified that the highest and best use for the land was residential-agricultural that permits mining. He opined that the surface acreage was worth $16,000. He separately calculated the present value of the mineral deposits at $600,000 to $650,000 based upon a royalty paid upon the extraction of limestone.

DOT argues that this testimony should have been struck under Dept. of Transp. v. Benton, 214 Ga.App. 221, 222, 447 S.E.2d 159 (1994). In Benton a condemnation award was reversed because the condemnee's expert valued undivided, unimproved land by hypothesizing how much the land would be worth if it had been subdivided for residential homes. Even though the expert subtracted the cost necessary to subdivide in determining the land's value, this Court reasoned that the evidence should have been excluded "because it values the property at a time after the taking." Id. at 223, 447 S.E.2d 159.

We agree with the DOT that, in this case, the trial court permitted improper testimony of the condemned land's value. However, our decision is not based on Benton but on other condemnation cases that directly address how to value land containing mineral or soil deposits suitable for extraction. Williams v. Mayor, etc. of Carrollton, 195 Ga.App. 590, 394 S.E.2d 389 (1990) concerned how to value condemned land containing "chewacla" soil. "The fact that chewacla soil was present was a relevant factor to be considered in determining the overall value of the property. See generally State Hwy. Bd. of Ga. v. Shierling, 51 Ga.App. 935 (1, 2) (181 SE 885) (1935). However, the separate value of the chewacla soil would certainly not be a relevant inquiry. Land...