Jotin Realty Co., Inc. v. Department of Transp.
| Citation | 174 Ga.App. 809,331 S.E.2d 605 |
| Decision Date | 25 April 1985 |
| Docket Number | No. 69795,69795 |
| Parties | JOTIN REALTY COMPANY, INC. v. DEPARTMENT OF TRANSPORTATION. |
| Court | United States Court of Appeals (Georgia) |
James Garland Peek, J. Corbett Peek, Jr., Atlanta, for appellant.
James S. S. Howell, Beryl H. Weiner, Michael J. Bowers, Atty. Gen., James P. Googe, James P. Howell, Marion O. Gordon, Roland F. Matson, John R. Strother, J. Matthew Dwyer, Jr., Asst. Attys. Gen., for appellee.
The Department of Transportation filed a declaration of taking on November 14, 1979, and acquired certain real property owned by Jotin Realty Co., Inc. This property consisted of 2.948 acres on which was situated an office/warehouse facility of approximately 50,000 square feet that had been rented to a large corporation for several years. A jury trial on the issue of just and adequate compensation took place nearly four years after the taking. The jury returned a verdict in favor of the condemnee in the amount of $796,902. Both parties filed a motion for new trial, and the motions were denied. Jotin appeals.
1. During the course of the trial, the condemnee sought to present portions of the deposition of Alvin R. Weeks, who was deceased at the time of trial. The desired testimony went to the witness' opinion of the value of the condemned property and the basis for Weeks' opinion. The Department of Transportation objected, contending that the witness' opinion of value was based on an incorrect and impermissible standard. Appellant contends that the trial court erred in sustaining the objection and excluding all of the proffered deposition testimony.
There appears to be no question that Mr. Weeks was an expert and also that he possessed a foundation for an opinion on the subject of interest here. He stated he had been an investor, primarily in real estate in Atlanta, since 1964, and he owned approximately two and one-half million square feet of commercial office buildings and hotels, plus 500-600 undeveloped acres of land in and around metro Atlanta. He built and developed 300,000-700,000 square feet of commercial space every year, he built and owned the Honeywell Center on Interstate 85 and Interstate Industrial Park, and he had been trained through experience in dealing in real estate for "the last 20 odd years" buying and selling commercial property. In addition to his experience, Weeks had personally examined the property and building in question on several occasions in 1977 and 1978 or 1979 and was thoroughly familiar with the building, its construction and condition. In forming his opinion on value, Weeks stated he relied on his own experience and knowledge, which included knowledge of the sales of similar property in the area.
The court held that the witness' testimony was irrelevant and without probative value because he couched his opinion in terms of "what I would pay for it" or "what it would be worth to me."
"In condemnation proceedings brought under CH. 36-3 OF THE CODE1 the only issue before the assessors or a jury on appeal is the amount of compensation to be paid for the property taken...." B & W Hen Farm v. Ga. Power Co., 222 Ga. 830, 831 (1), 152 S.E.2d 841 (1966). The law regarding highway takings expressly provides that when appeal is made by the condemnee, "it shall be the duty of the court ... to cause an issue to be made and tried by a jury as to the value of the property or interest taken...." OCGA § 32-3-16 (a). The "value" referred to is "the fair market value of the property or interest taken." OCGA § 32-3-16(b)(1). Thus the procedural statute provides "a de novo investigation [jury trial] with the right of either party, under the rules of evidence as provided for in the general laws of this state, to introduce evidence concerning: (1) The fair market value of the property or interest taken or other evidence of just and adequate compensation." OCGA § 32-3-16(b)(1). The latter alternative relates to property having a unique or special use. DeKalb County v. Cowan, 151 Ga.App. 753, 754-555(7), 261 S.E.2d 478 (1979).
Thus the issue here was the fair market value. As stated in White v. Georgia Power Co., 237 Ga. 341, 343 (1), 227 S.E.2d 385 (1976) 2: "First, it shall be the duty of the fact finder ... to determine the fair market value of the property actually taken." What is meant by "fair market value" is as defined in the charge recited in Housing Auth. of Calhoun v. Spink, 91 Ga.App. 72, 75, 85 S.E.2d 80 (1954): "what [the property] will bring when sold for cash by a person ready and willing to sell, but under no obligation to sell, and when bought by a person ready and willing to buy, but under no obligation to buy."
"Direct testimony as to market value is in the nature of opinion evidence." OCGA § 24-9-66. The opinions of experts on such a question are admissible. OCGA § 24-9-67. DeKalb County v. Cowan, supra 151 Ga.App. at 753 (3), 261 S.E.2d 478; State Hwy. Dept. v. Sinclair Refining Co., 103 Ga.App 18, 118 S.E.2d 293 (1961).
There is little question that the witness was an expert as to property values in the area. As an expert, of course, he could state his opinion in his area of expertise. White v. Ga. Power Co., supra 237 Ga. at 341, 227 S.E.2d 385. But that was not the primary objection. Nor was the objection that he did not have a proper basis for forming an opinion as to fair market value. Rather, what was objected to was that his opinion as to value was irrelevant because it related merely to what the property was worth to him and what he would pay for it. That is, the testimony, the condemnor complained, was not focused on fair market value but rather on what he, a particular and singular member of the market, but with very individualized habits, goals, and personal judgments as to investments, would pay.
The dilemma was occasioned by the fact that Weeks had not been asked on deposition expressly what his opinion was of the fair market value. This shortfall was apparently occasioned by the fact that the witness' deposition had been taken for discovery, without thought that it would have to be used in lieu of his live testimony at trial due to his intervening death. Thus there was no opportunity to correct the shortcoming.
Market value may be established by circumstantial as well as direct evidence. C. & S. Nat. Bank v. Williams, 147 Ga.App. 205, 249 S.E.2d 289 (1978); Grant v. Dannals, 87 Ga.App. 389, 391 (1), 74 S.E.2d 119 (1953). The jury is the ultimate determiner of fair market value. Dept. of Transp. v. Brown, 155 Ga.App 622, 271 S.E.2d 876 (1980). Also in that case, the court held that a property owner may give his opinion as to the value of his own property after testifying to his familiarity...
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