Department of Transp. v. Great Southern Enterprises, Inc.

• Citation: 225 S.E.2d 80,137 Ga.App. 710
• Decision Date: 18 February 1976
• Docket Number: No. 51585,No. 3,51585,3
• Parties: DEPARTMENT OF TRANSPORTATION v. GREAT SOUTHERN ENTERPRISES, INC., et al
• Court: United States Court of Appeals (Georgia)

Page 80

225 S.E.2d 80

137 Ga.App. 710

DEPARTMENT OF TRANSPORTATION v. GREAT SOUTHERN ENTERPRISES, INC., et al.

No. 51585.

Court of Appeals of Georgia, Division No. 3.

Feb. 18, 1976.

Arthur K. Bolton, Atty. Gen., Charles C. Pritchard, Deputy Asst. Atty. Gen., Atlanta, for appellant.

Hansell, Post, Brandon & Dorsey, Dent Acree, Paul H. Anderson, James H. Rollins, C. L. Wagner, Jr., Atlanta, for appellees.

QUILLIAN, Judge.

Appellant/condemnor filed its petition to acquire by condemnation title to a plot of land belonging to appellee, for a right of way for the state highway system of Georgia.

Appellant's petition was an in rem action and the following parties were named as party condemnees: Great Southern Enterprises, Inc., owner of the land; Atlanta Federal Savings & Loan Association (hereinafter referred to as Atlanta Federal), who held title under two security deeds from Great Southern; the Shaw Walker Company who was in possession by virtue of a lease; and Draper Owens Company, an agent entitled to commissions flowing from the lease.

Appellant/condemnor alleged the sum of $157,000.00 to be just and adequate compensation for the land taken. The Superior Court entered an order that the property described was within the bounds of the required right of way, was thereby condemned, and the $157,000.00 was paid into the repository of the court.

Great Southern, being dissatisfied with the estimated compensation, filed a notice of appeal pursuant to Code Ann. § 95A-610 (Ga.L.1973, pp. 947, 1017). Shaw Walker filed its application of payment for $42,500.00 as the value of its leasehold estate. Draper Owens filed for $4,516.87 as the value of its right to receive commissions for the remainder of the term of the lease. Atlanta Federal and Great Southern filed a joint application for payment, with $75,000.00 to Atlanta Federal and the remaining $34,983.13 going to Great Southern. These amounts totaled $157,000.00. (See Appendix.)

On August 9, 1974, the court entered an order for payment in which 'Condemnees . . . consent hereto' and the condemnor did not oppose, making distribution of the state funds as listed above. The court order provided appellee's acceptance of the funds would not prevent it from prosecuting its appeal to the Superior Court.

On its appeal Great Southern alleged that 'the only issue to be determined is the value of its interest, and that it would be entitled to recover from condemnor . . . any amount found by the jury . . . in excess of $109,983.13 (the amount paid to Great Southern in the court's order for payment, which included $75,000.00 to Atlanta Federal as the value of their security deed interest).' Great Southern further contended that 'it (would be) highly prejudicial and harmful to its interest to have the jury consider the value of any interest other than the interest of Great Southern . . . on its appeal.'

The appellant disagreed. It alleged the jury should determine the total value of the fee and the value of the interest of each individual condemnee, irrespective of the fact that no condemnee except Great Southern had appealed.

The court ruled that the jury should return two findings, one being the value of Great Southern's interest and the other being the total value of the entire property. The jury found the total value of the fee to be $190,600.00 and the interest of Great Southern to be $158,000.00. The court's judgment on the verdict gave Great Southern $48,016.87-the difference between the $158,000.00 awarded by the jury and the $109,983.13 paid to Great Southern in the earlier 'Order For Payment.' Of course this award of $48,016.87 in addition to the earlier amount of $157,000.00 paid into the repository of the court, required the appellant to pay a total amount of $205,016.87 which exceeded the total award of the jury ($190,600.00) by $14,416.87. (See Appendix.)

Appellant filed a motion for new trial or in the alternative to set aside judgment. They were overruled and denied. Appellant brings its appeal to this court. Held:

1. Appellant contends that the court erred in permitting two of the condemnee's witnesses to testify as to market value of the subject property without properly qualifying them as experts, without laying a proper foundation for their testimony as non-experts.

The court did not make clear whether these witnesses were permitted to testify as experts or non-experts. There was sufficient evidence presented to qualify them as experts, and sufficient data proved to show that both parties had the opportunity to form a correct opinion as a non-expert. The question of whether a witness is qualified to give his opinion as an expert is one for the court. Braswell v. Owen of Ga., Inc., 128 Ga.App. 528, 532(5), 197 S.E.2d 463. His determination will not be disturbed except that it be manifestly abused. We would find no abuse of discretion if he had determined that these witnesses were experts.

However, one need not be an expert to testify as to market value as it is in the nature of an opinion. Code § 38-1709. Thus a non-expert may give his opinion as to the market value of realty if he has had an opportunity for forming a correct opinion. Id. The determination of the amount of knowledge a witness must possess in order to testify as to value of realty must be left largely to the discretion of the court. The witnesses here having testified as to the value of the land in controversy and the value of other realty in the vicinity, the court did not abuse its discretion in allowing the testimony to go to the jury, to be given such weight as they saw fit. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 5, 76 S.E. 387. The witnesses did establish the facts which formed the basis of their opportunity for forming a correct opinion. State Highway Dept. v. Raines, 129 Ga.App. 123, 125(1), 199 S.E.2d 96. The trial judge did not abuse his discretion. This enumeration is without merit.

2. Appellant alleges the court erred in permitting a condemnor witness to respond to questions by counsel for Great Southern regarding 'the prospective addition of a second floor and thereby doubling the value of the subject property, without any showing of feasibility or probability of this hypothetical improvement.'

In determining just and adequate compensation for property taken by eminent domain, the jury may consider the value of the property for uses other than that for which it was being used at the time of the condemnation. State Hwy. Dept. v. Robinson, 103 Ga.App. 12, 16, 118 S.E.2d 289. But the fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. State Hwy. Dept. v. Howard, 119 Ga.App. 298, 303, 167 S.E.2d 177. In condemnation proceedings, the trial judge may exercise his discretion to determine whether or not the evidence shows a reasonable probability that the property can be used for a different purpose and may admit or exclude evidence of value for such use, and his discretion in admitting such evidence for consideration of the jury, or excluding it, will not be reversed unless there was a manifest abuse of his discretion. State Hwy. Dept. v. Thomas, 106 Ga.App. 849(1), 128 S.E.2d 520. The mere possibility that the property might be used for another purpose is not sufficient to authorize a jury to consider the proposed use in determining the value of the property. Ga. Power Co. v. Livingston, 103 Ga.App. 512(3), 119 S.E.2d 802.

In the instant case the counsel for condemnee asked the expert witness for condemnor: 'Were you aware that this building, the foundation was built so that a second story could be added to the building?' The witness responded: 'No, sir.' The ensuing questions were asked of the expert to attempt to show that this would enhance the value of the building. Five questions later, counsel for the condemnor objected to the line of questioning based on 'a supposition.' The court let the evidence in that 'the foundation was so constructed that another floor could be added.' Further questioning along this line brought further objections as to 'a hypothetical question on a factual situation that isn't in evidence.' The court permitted the questioning to proceed, subject to later connection-with a proper foundation. Our perusal of the record does not show a later connection and counsel for appellant has not directed our attention to such a foundation.

Where the court admits such evidence, over objection, and defers ruling, subject to later connection, it is incumbent upon the objecting party, if the evidence is inadmissible, to direct attention of the court thereto either before or at the close of testimony, and to move to exclude it. Upon his failure to do so he will be held to have waived his objection. Black v. State, 187 Ga. 136(2), 199 S.E. 810; Boyers v. State, 198 Ga. 838, 848(9), 33 S.E.2d 251. The objection was not renewed and is deemed to be waived.

3. It is evident that the judgment of the court awarded sums to the condemnees which totaled up to an amount which exceeded the verdict of the jury. A judgment must conform to the verdict. Code § 110-301. It also must follow the true meaning and...