Department of Transportation v. Southeast Timberlands, Inc., A03A1537.

• Decision Date: 09 October 2003
• Docket Number: A03A1537.,A03A2195.
• Parties: DEPARTMENT OF TRANSPORTATION v. SOUTHEAST TIMBERLANDS, INC. SOUTHEAST TIMBERLANDS, INC. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

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DEPARTMENT OF TRANSPORTATION v. SOUTHEAST TIMBERLANDS, INC. SOUTHEAST TIMBERLANDS, INC. v. DEPARTMENT OF TRANSPORTATION.

A03A1537.

A03A2195.

Court of Appeals of Georgia, Third Division.

Decided October 9, 2003.

PHIPPS, Judge.

The Georgia Department of Transportation (DOT) filed a condemnation petition in the Superior Court of Chatham County to acquire approximately 378 acres of land for $ 285,000. DOT wanted the land "to mitigate damages to wetlands being destroyed by the construction" of a nearby state road. The landowner, Southeast Timberlands, Inc. (Southeast), opposed the petition and demanded greater compensation. A jury awarded Southeast $ 886,999.

In Case No. A03A1537, DOT appeals, arguing that the trial court erred by allowing Southeast to present inadmissible evidence concerning the value of the land and by failing to direct a verdict in its favor. In Case No. A03A2195, Southeast appeals the trial court's denial of its motion to dismiss DOT's appeal for unreasonable delay in transmitting the record to this court. We consolidate these cases, consider Case No. A03A2195 first, and affirm both.

1. The undisputed facts relevant to Southeast's claim are as follows. After the trial court entered judgment for Southeast on the jury verdict, DOT filed a motion for new trial and - later the same day - Southeast filed a notice of appeal. The clerk of court billed Southeast for costs associated with transmitting the record to this court, but Southeast did not pay the bill because it believed its appeal was void.¹

The trial court later denied DOT's motion for new trial, and DOT filed a notice of cross-appeal. Southeast moved to dismiss the cross-appeal as void, but the trial court denied that motion. At the hearing on the motion to dismiss, DOT's counsel stated that he had a check to pay the bill of appeal costs, but first wanted the clerk's office to send a new bill of costs to DOT. Counsel for Southeast did not object. The clerk's office then billed DOT directly, and DOT paid the bill approximately three weeks later.

Southeast moved to dismiss DOT's appeal for unreasonable delay in the payment of costs. After a hearing, the trial court denied the motion, finding that while there had been a delay, "it was due to the confusion surrounding the post-trial appellate procedure" and was "neither unreasonable nor inexcusable." Southeast appeals that ruling.

Under O.C.G.A. § 5-6-48 (c), the trial court may dismiss an appeal, after notice and an opportunity for a hearing, if there has been a delay in the transmission of the record to the appellate court and that delay was unreasonable, inexcusable, and caused by the appealing party.² Although a delay of more than 30 days is presumptively unreasonable and inexcusable, the appealing party may rebut the presumption by presenting evidence at a hearing on the issue.³ The trial court has broad discretion to determine whether to dismiss an appeal due to a delay in paying costs, and we will not disturb the court's decision absent an abuse of discretion.⁴

Guided by the principle that we should avoid dismissing appeals and reach the merits whenever possible,⁵ we find no abuse of discretion here. The evidence in the record supports the court's conclusion that the delay in payment of costs was due to confusion about the status of the parties' appeals. That confusion began when Southeast filed a notice of appeal shortly after DOT filed a motion for new trial and continued when DOT filed a subsequent notice of cross-appeal. Because the appellant, not the appellee, is responsible for payment of costs,⁶ the clerk's office initially billed Southeast, not DOT. Moreover, the record indicates that DOT's counsel was uncertain whether the amount of the initial bill was correct, that counsel declared in open court his intention to ask the clerk to bill DOT directly, and that Southeast's counsel did not object to this delay. Once DOT was billed directly, it paid the bill within 30 days. Thus, the evidence authorized the trial court to find that the delay was reasonable, excusable, and not DOT's fault. In addition, we note that Southeast presented no evidence that it was prejudiced by the delay.⁷

Southeast relies on Leonard v. Ognio,⁸ in which we reversed a trial court's denial of a motion to dismiss an appeal for late payment of costs. But unlike this case, Leonard involved no confusion over which party was supposed to pay the costs, whether an appeal was valid, and whether the amount billed by the clerk of court was correct. Thus, Leonard is not controlling.

2. We now turn to the merits of DOT's appeal.

(a) DOT contends that the trial court erred in admitting the testimony of Southeast's expert witness, environmental consultant Thomas Ballou, regarding the taken land's potential use as a wetlands mitigation bank.

At trial, Southeast's president, Jewett W. Tucker, Jr., testified that in the 1980's he had assembled six contiguous parcels of mostly unimproved land near Savannah totaling more than 10,000 acres. The property had once been known as Vallambrosa Plantation, and rice had been cultivated there. The 378 acres acquired by DOT were located near the center of the tract and were mostly controlled marshland, but also included some swampland and an easement for ingress and egress over approximately 11 acres of wooded uplands.

Southeast claimed that the highest and best use of the land was as a wetlands mitigation bank. Ballou testified that the Army Corps of Engineers requires permits to be obtained before construction in certain areas designated as wetlands. If the construction will damage the wetlands, then the builder must mitigate that damage by creating new wetlands elsewhere or by restoring, enhancing, or preserving existing wetlands. "On-site" mitigation occurs when a builder uses part of his own property near the proposed construction to mitigate wetlands damage. "Off-site" mitigation, on the other hand, "is located someplace other than the property where the permit allows you to fill the wetlands." Ballou explained that wetlands mitigation banks are areas where large amounts of wetlands can be restored relatively cheaply, thereby generating a reserve of "mitigation credits" that can be sold to builders needing wetlands permits for other projects.

Ballou testified that the taken land "was a natural wetland area that had been highly modified, but . . . could be very easily restored." Thus, he opined that the land was "very, very well suited, almost uniquely suited" for development as a wetlands mitigation bank. Ballou estimated that it would cost up to $ 350,000 to develop the land into a mitigation bank, and that the bank could generate between 1,286 and 1,701 mitigation credits.

DOT repeatedly objected that Ballou's testimony was speculative and irrelevant because the land had not been developed into a wetlands mitigation bank on the date of the taking. DOT also moved to strike Ballou's testimony. The trial court overruled the objections and denied the motion to strike.

The measure of damages in a condemnation case isfirst, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned.⁹ "It has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee."¹⁰ Thus, in calculating the market value of the property, the jury "should be allowed to inquire as to all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use is reasonable and probable and not remote or speculative."¹¹ The trial court has discretion to admit or exclude evidence of a proposed use for the land, and we will not disturb the court's decision absent a manifest abuse of that discretion.¹²

DOT argues that Ballou's testimony should not have been admitted because Tucker testified that he had planned to develop Vallambrosa Plantation into a "high-end golf course community" with a marina, not a wetlands mitigation bank. But Tucker also testified that he "had always planned on utilizing the [taken] property" as on-site mitigation for the golf course community. Indeed, DOT planned to use the land for wetlands mitigation and obtained a permit for that purpose before the taking. Thus, the trial court did not abuse its discretion in admitting Ballou's testimony that the land's highest and best use was for wetlands mitigation.

DOT also contends that Ballou "was erroneously permitted to presume that the development of the subject property as a wetland mitigation bank was an accomplished fact," although there was no evidence that Southeast had tried to develop the land for that purpose before the taking. DOT relies on our decisions in Colonial Pipeline Co. v. Williams¹³ and DOT v. Benton,¹⁴ in which we held:

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. Even where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.¹⁵

Colonial Pipeline and Benton do not apply here. In those cases, the taken parcels of land were unimproved, but the condemnees' expert witnesses testified that their highest and best uses were as residential subdivisions. In addition, the expert witnesses estimated what the parcels would be worth after subdivision. We held that evidence of...