Department of Transp. v. Metts

• Decision Date: 12 March 1993
• Docket Number: No. A92A2138,A92A2138
• Citation: 430 S.E.2d 622,208 Ga.App. 401
• Parties: DEPARTMENT OF TRANSPORTATION v. METTS, et al.
• Court: Georgia Court of Appeals

Page 622

430 S.E.2d 622

208 Ga.App. 401

DEPARTMENT OF TRANSPORTATION v. METTS, et al.

No. A92A2138.

Court of Appeals of Georgia.

March 12, 1993.

Reconsideration Denied April 2, 1993.

Certiorari Denied July 15, 1993.

Michael J. Bowers, Atty. Gen., George P. Shingler, Senior Asst. Atty. Gen., Kopp & Conner, Neal L. Conner, Jr., Mary Jane Cardwell, Waycross, for appellant.

Robert B. Sumner, Douglas, Berrien L. Sutton, Homerville, for appellees.

CARLEY, Presiding Judge.

Appellant-Condemnor filed a declaration of taking as to a portion of property owned by appellee-Condemnees. Condemnees filed a timely appeal to the superior court and the issue of just and adequate compensation was tried before a jury. Condemnor appeals from the judgment entered by the trial court on the jury's verdict.

1. In the trial court and on appeal, Condemnees have placed heavy reliance upon an unreported opinion of this Court. We note at the outset that such reliance is misplaced. The unreported opinion "is lacking in value as precedent and is not binding on lower courts within the meaning of Ga. Const. of 1983, Art. VI, Sec. V, Par. III.... 'No unreported opinion shall be cited as a physical or binding precedent of the Court.' [Cit.]" Floyd v. First Union Nat. Bank of Ga., 203 Ga.App. 788, 790-791(1), 417 S.E.2d 725 (1992).

2. The giving of charges on "uniqueness" is enumerated as error.

Evidence that the property was of sentimental significance to the Condemnees clearly would not support a charge on uniqueness. All property can be said to have sentimental value to one whose family has lived on it. However, "[a] merely aesthetic or sentimental value is not sufficient." Housing Auth. of the City of Atlanta v. Troncalli, 111 Ga.App. 515, 520, 142 S.E.2d 93 (1965). "Value to the owner means pecuniary value and not sentimental value. Although the location of the property is a factor in determining its value, the fact that the [C]ondemnee lives near [or lived on] the property is not relevant. Unique value is based on the characteristics of the land and the use of the land by the owner, but not the characteristics of the owner. [Cit.]" Taylor v. Jones County, 205 Ga.App. 628, 630(3), 422 S.E.2d 890 (1992).

A business had formerly been operated on the property and there was evidence that, considering the property's location and existing improvements, its highest and best use was for commercial redevelopment. This evidence was certainly "admissible in establishing 'market value' of realty, and any decrease [in its suitability for commercial use] following [the partial taking] would be a factor to be assessed by a jury in determining if there was any diminution in the value of the property--hence, to be included in computing consequential damages to the remainder; [but such evidence of the highest and best use of the property is not], as a matter of law, ... sufficient to authorize a charge on, or a finding of, 'unique[ness],' or an existing use value which is 'peculiar' to the owner." Macon-Bibb County Water etc. Auth. v. Reynolds, 165 Ga.App. 348, 354(3), 299 S.E.2d 594 (1983).

" '[U]nique property is simply property which must be valued by something other than the fair market standard' because there is no general market for such property. [Cit.]" Macon-Bibb County Water etc. Auth. v. Reynolds, supra at 353(3), 299 S.E.2d 594. Other than the irrelevant sentimental value, "[t]here was no showing ... that the value to [Condemnees] of the land taken was other than its own intrinsic value for certain purposes." State Hwy. Dept. v. Hood, 118 Ga.App. 720, 722(2), 165 S.E.2d 601 (1968). Obviously, there is a general market for property with potential for commercial development. The market value of such property will be greater or lesser, depending upon the location, availability of similar parcels, and other market factors capable of quantification. "However, '(a)s long as there is an ascertainable market value, no consideration need be given to value peculiar to the owner. Sentimental value must be ignored. Condemnation proceedings are in rem and just compensation must be based upon the value of the rights taken, without regard to the personality of the owner or his personal relationship to the property taken. The value of the property for his personal purposes must be disregarded.' [Cits.]" Macon-Bibb County Water etc. Auth. v. Reynolds, supra at 353(3), 299 S.E.2d 594. "[A]s a matter of law, there being no evidence of uniqueness or existing use with value peculiar to the [Condemnees], it was error to give a charge permitting computation of damages on a basis other than market value. [Cits.]" Macon-Bibb County Water etc. Auth. v. Reynolds, supra at 355(3), 299 S.E.2d 594.

3. The trial court erred in failing to sustain an objection to testimony concerning the sentimental value of the property. Such testimony was irrelevant. Taylor v. Jones County, supra.

4. In a partial taking case, evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder. Dept. of Transp. v. Adams, 193 Ga.App. 866, 868(2), 389 S.E.2d 343 (1989); State Hwy. Dept. v. Jackson, 100 Ga.App. 704, 706(4), 112 S.E.2d 356 (1959). In the instant case, however, the trial court erred in allowing evidence as to the cost to cure at the time of trial rather than the cost to cure at the time of the taking. "The diminution in value of the remainder that is the measure of consequential damages should be measured as of the date of the taking.... The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. [Cits.]" (Emphasis supplied.) Wright v. MARTA, 248 Ga. 372, 375-376, 283 S.E.2d 466 (1981). Testimony that the costs in the instant case had "risen just a little bit" between the time of the taking and the time of trial was not sufficient. Cf. MARTA v. Dendy, 250 Ga. 538, 541(1a), 299 S.E.2d 876 (1983).

5. The Condemnees submitted a number of photographs. The Condemnor objected to these photographs, as a whole, contending that they were all inadmissible as showing temporary inconvenience during construction of the project. The trial court's refusal to sustain this objection is enumerated as error.

A review of the photographs shows that, although the Condemnor's objection was probably well taken as to at least some of them, it was not well taken as to all of them. "Under these circumstances there was no error in overruling the objection as made, the objectionable [photographs] in the group objected to not being pointed out with particularity and some of the evidence objected to being admissible. [Cits.]" Hudson v. Miller, 142 Ga.App. 331(1), 235 S.E.2d 773 (1977).

6. The Condemnees introduced evidence of replacement costs of various improvements without any evidence of depreciation also being introduced. The Condemnor's motion to strike this testimony was erroneously denied. MARTA v. Dendy, supra 250 Ga. at 542(1a), 299 S.E.2d 876; Dept. of Transp. v. Fitzpatrick, 184 Ga.App. 249, 251(3), 361 S.E.2d 241 (1987). The Condemnees' reliance upon Dept. of Transp. v. Brand, 149 Ga.App. 547, 254 S.E.2d 873 (1979) is misplaced. Brand was overruled in MARTA v. Dendy, supra 250 Ga. at 542(1a), 299 S.E.2d 876.

7. The trial court erred in allowing Condemnees to give their opinion of the value of their property. "There was no attempt to...