Flint v. Department of Transp., A96A0839
| Decision Date | 05 December 1996 |
| Docket Number | No. A96A0839,A96A0839 |
| Citation | 479 S.E.2d 160,223 Ga.App. 815 |
| Parties | , 96 FCDR 4396 FLINT et al. v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Hicks, Maloof & Campbell, Bruce M. Edenfield, Atlanta, for appellants.
Michael J. Bowers, Attorney General, James S. Howell, Atlanta, for appellee.
Four members of the Flint family appeal from the judgment entered on the jury's verdict setting a condemnation award for a fee taking of .7928 acre and an additional 1.6821 acres as a slope easement, contending the court erred in refusing to allow Moody, the Flints' expert appraiser, to testify regarding consequential damages and in its charge to the jury on expert witnesses.
1. The property was condemned December 15, 1992. At that time, the total property consisted of 7.684 acres of raw acreage, which was zoned C-3, the highest commercial zoning class inside the city of Canton. Dr. Flint testified that, as of December 1992, the family had no site plans regarding any proposed development of the property, other than a previously done driveway site plan; there were no negotiations going on with any potential builder/developer; no engineering or soil studies had been done; no specific building plans had been prepared; and no potential income analysis of any kind of structure that could be placed on the property had been performed. As he stated, "at that time, we were not ready to develop the property...."
Because of the configuration of the property, located between the Etowah River and the state highway, the Flints' appraiser, Moody, considered the property as two shelves or pads, one upper and one lower, for purposes of discussing future use in order to determine the claimed consequential damages to the remaining fee. He concluded that the lower shelf, consisting of 3.1 acres, would best be suited for a "fast food or a hotel/motel-type operation" and would generate a higher value than the upper 4.584 acre shelf. Because no proffer of proof was made regarding the upper shelf, we consider only the lower shelf on this issue.
Moody testified that, in his opinion, there had been a "gross infringement on the buildable area of this property, particularly in the easement area," and that the remaining fee suffered consequential damages from the taking. After being retained regarding the condemnation, Moody contacted Lusk and asked him to prepare a preliminary sketch of a proposed building for each shelf. Lusk spotted a building on each pad, both before the taking and after the taking. On the lower shelf, before the taking, a 24,000-square-foot building with 93 parking spaces could have been built, according to Lusk. After the taking, a 13,600-square-foot building with 60 parking spaces could have been built.
As stated by Moody, He then stated that "I developed a potential stream of income." The court then excused the jury and asked for a proffer of proof concerning the stream of income and how it could be related to consequential damages to the remaining fee, as opposed to business losses, of which there were none, since there was no business operating on the land at the time of taking. After a lengthy hearing, during which Moody attempted to explain how the operating income could be used to show the diminished value of the highest and best use "strictly as to the loss in square foot of buildable area," the court ruled that testimony concerning the reduced utility of the remainder would be allowed, based on the size of the pads being diminished, but that no testimony would be allowed regarding any income stream or any analysis based on an income stream. Loss of buildable area had also been introduced by other witnesses. Asked by the Flints if Moody could put a figure on the value of the loss of buildable area, the court ruled Moody could give his opinion.
After a break in the proceedings, Flints' counsel announced that Moody was
Pretermitting the issue of whether counsel's statement evidenced a strategic abandonment of the effort to introduce this evidence at this point, there was no error in the court's ruling.
" Dept. of Transp. v. Metts, 208 Ga.App. 401, 403(4), 430 S.E.2d 622 (1993).
Dept. of Transp. v. Acree Oil Co., 266 Ga. 336, 337(2), 467...
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