Justice v. Georgia Power Co., No. 65068

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: McMURRAY
• Citation: 164 Ga.App. 599,298 S.E.2d 579
• Parties: JUSTICE v. GEORGIA POWER COMPANY.
• Docket Number: No. 65068
• Decision Date: 02 December 1982

Page 579

298 S.E.2d 579 164 Ga.App. 599 JUSTICE
v.
GEORGIA POWER COMPANY. No. 65068. Court of Appeals of Georgia. Dec. 2, 1982.

Page 580

[164 Ga.App. 602] Lamar Gibson, Waycross, for appellant.

E. Kontz Bennet, Sr., Waycross, for appellee.

[164 Ga.App. 599] McMURRAY, Presiding Judge.

This is an appeal by the condemnee from a jury verdict awarding him $10,000 for an easement along his property. Condemnee challenges the award on three specific grounds. Held:

1. Error is first cited that the trial court erred in holding condemnee did not have the right to opening and concluding arguments even if he decided to present no evidence. He relies on Canada Dry Bottling Company v. Campbell, 112 Ga.App. 56, 143 S.E.2d 785, and numerous other cases holding that a defendant in a civil case is entitled to opening and concluding arguments to the jury when he has introduced no evidence. However, condemnor argues that this rule has no applicability to condemnation cases, citing State Highway Department v. Smith, 111 Ga.App. 292, 294(5), 141 S.E.2d 590, since the burden of proof is always on the condemnor no matter which party appeals to the superior court. Aliter is the result in other types of appeal cases unless there be statutory authority for same. See such cases as Hall County Board of Tax Assessors v. Reed, 142 Ga.App. 556, 236 S.E.2d 532; Stoddard v. Board of Tax Assessors of Grady County, 163 Ga.App. 499, 295 S.E.2d 170; Georgia Power Company v. McCrea, 46 Ga.App. 279(2), 167 S.E. 542; Georgia Power Company v. Brooks, 207 Ga. 406(4), 411, 62 S.E.2d 183.

The issue concerning condemnee's alleged right to open and close arose at the conclusion of condemnor's case when condemnee's counsel advised the court that he did not intend to introduce any evidence if the court permitted him to open and close. The pretrial order specifically provided that condemnor had the right to open and close. After lengthy argument on the issue, the court inquired as to whether condemnee had closed his case. Counsel advised the court that he wanted a ruling on the issue prior to closing his case. After repeatedly stating that he did not feel such a ruling would be proper until counsel closed, the trial judge finally "ruled" that condemnee would not be able to open and close even if he presented no evidence. Whereupon condemnee

Page 581

then presented the testimony of three witnesses and introduced documentary evidence.

It is true that a defendant who has inherited the right to open and close by introducing no evidence may not be denied that right. American Casualty Company v. Seckinger, 108 Ga.App. 262, 263, 132 S.E.2d 794. However, "the opening and conclusion are lost if [the defendant proves through the introduction of evidence] ... any facts that are material to the defence [sic]." East Tenn., Va. & Ga. Railway Co. v. Fleetwood, 90 Ga. 23, 24(4), 15 S.E. 778.

Upon the presentation of evidence after the trial court's [164 Ga.App. 600] advisory "ruling" prior to the close of his case counsel waived any right here to open and close. This case is distinguished from Phillips v. Smith, 76 Ga.App. 705, 47 S.E.2d 156, in which the defendants closed their case and their counsel started to open the argument before being stopped by the trial court. The trial court then granted defendants' motion to reopen the evidence, and this court held that the defendants did not waive any objection to the court's ruling on argument by reopening their case with leave of court....