Jackson v. Department of Transp.
| Citation | 283 S.E.2d 59,159 Ga.App. 130 |
| Decision Date | 01 July 1981 |
| Docket Number | No. 61772,61772 |
| Parties | JACKSON et al. v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
George P. Dillard, Decatur, for appellants.
Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Don A. Langham, First Asst. Atty. Gen., Marion O. Gordon, Senior Asst. Atty. Gen., M. T. Simmons, Richard L. Chambers, Sp. Asst. Attys. Gen., for appellee.
Condemnation. The appellants (Jackson, the Hosford brothers, and Reeves) in 1972 apparently entered into a joint venture with another (Dorough--since deceased) to purchase certain acreage at the southeast corner of the intersection of Clairmont Road and I-85 in DeKalb County. At various times during the intervening years between 1972 and the 1978 condemnation by the Department of Transportation, the appellants entertained plans to sell the property to others as a restaurant site, to lease it as a restaurant site for an extended term of years, or to build their own office building on the site, intending to occupy two floors and rent out two floors. Evidence as to the sales price of the unimproved land, the cost of the building and the value of rental lease were all admitted. The only one accessible entry into the property was from Clairmont Road. The bulk of the property was a large, solid out-cropping of rock rising to a promontory above I-85, giving an extensive view in all directions. There was considerable sediment on top of the rock with tree growth. At various times discussions were held with the county and DOT to obtain curb cuts from Clairmont Road preparatory to the conversion to a restaurant site or construction of the proposed building. Also there were at one time preliminary discussions with DOT with a view toward an equal exchange of property from land contiguous to the I-85 ramp onto Clairmont Road (owned by DOT) for property along Clairmont Road (part of that owned by appellants). The owners (appellants) were given opportunity to offer evidence as to the failure of the negotiations to exchange property, the failure to obtain curb cuts, the price paid for the property in 1972, expert testimony as to the fair market value, the unique value to the owners, the potential use of the property as a restaurant site and as an office building site, and general evidence as to the highest and best use of the property. At the time of the taking by DOT, the property remained totally unimproved. The appellants did not protest the procedure or formalities followed in the taking. At condemnation DOT paid into the registry of the court the sum of $40,950 as the fair market value of the property. The taking included the right of way along Clairmont Road and completely landlocked the remainder of the property. Appellants objected only to the valuation placed upon the property ($40,950 for .04 acre) and demanded a jury trial as to the single issue of valuation. The trial court admitted the above described and expert testimony as to the fair market value (including consequential damages) but disallowed all evidence pertaining to the negotiations with the DOT as to the exchange, the particulars of the negotiations for the sale or the rental of the property, and the preparation costs for placing an office building thereon. The trial court reasoned that much of the offered evidence was based upon hearsay but more importantly that negotiations for improvement of the property were immaterial inasmuch as the property at the time of the taking was still unimproved and unfruitful efforts (and the preparatory costs involved therein) to improve the property were irrelevant to establish a fair value for the still unimproved property. The jury returned a verdict for $56,000. The trial court added $15,050 to the sum already paid into court by DOT and added $916.15 interest. The owners bring this appeal enumerating 32 errors. Held :
1. Courts of review have the right to expect assistance from counsel in the resolution of the questions presented on appeal. See Redwing Carriers v. Knight, 143 Ga.App. 668, 676(11), 239 S.E.2d 686. That assistance tends to become somewhat ephemeral, however, where the enumerations consist of a combing of the record for the purpose of enunciating every objection overruled or every motion denied or tactical manoeuver thwarted regardless of the merits of the action of the trial court. We do not suggest that counsel in this case has presented to us frivolous, non-meritorious enumerations but we are confronted with 32 separate but sometimes redundant enumerations, many of which we believe could have been consolidated. Inasmuch as we have that belief, we will in fact consolidate those enumerations which logically can be treated together.
2. In Enumeration of error 3 appellants argue that the taking of their property constituted a taking under color of right by the state and thus deprived them of rights, privileges, or immunities secured by the Constitution (i. e., a deprivation of their civil rights), all in violation of 42 U.S.C. § 1983. As prevailing party, appellants urge that they are entitled to recover attorney fees and costs of litigation as provided by 42 U.S.C. § 1988. We are impressed more with the ingenuity of the argument than its merits. We perceive the taking in this case to be no more than an ordinary legal action by the DOT to condemn private property in accordance with the condemnation statutes of this state. We have difficulty converting this procedure into a civil rights' violation. Appellants raised no legal objection to the propriety of that taking, contesting only the value of the property taken and consequential damages. It is the clearly announced law of this state that attorney fees (as well as expenses involved in defense of the litigation) are not recoverable, i. e., that such costs are not a part of the condemnation process. DeKalb County v. Trustees, Decatur Lodge No. 1602, B. P. O. E., 242 Ga. 707, 709, 251 S.E.2d 243. See Jacksonville Paper Co. v. Owen, 193 Ga. 23, 17 S.E.2d 76. For the same reason, it was not error for the trial court to exclude as irrelevant evidence that the project in question is federally funded or that the state should follow the rules for acquiring property of a federally funded project (enumeration of error 10). As noted above, appellants did not file appropriate objections to the administrative procedures followed by the state in the condemnation of their property. These enumerations are without merit. (Also see Division 3.)
3. In Enumerations 4, 9, 11,...
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Hall County v. Merritt
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Allen v. Brackett
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Brown v. Department of Transp., A89A1955
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