Lil Champ Food Stores v. Dept. of Transp.

• Decision Date: 23 February 1998
• Docket Number: No. A97A2339.,A97A2339.
• Citation: 498 S.E.2d 94,230 Ga. App. 715
• Parties: LIL CHAMP FOOD STORES, INC. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

498 S.E.2d 94

230 Ga. App. 715

LIL CHAMP FOOD STORES, INC. v. DEPARTMENT OF TRANSPORTATION.

No. A97A2339.

Court of Appeals of Georgia.

February 23, 1998.

Certiorari Denied June 5, 1998.

Portman & Felser, Barnard M. Portman, Paul H. Felser, Savannah, for appellant.

Thurbert E. Baker, Attorney General, Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Vidalia, Beckmann & Lewis, Leo G. Beckmann, Jr., Savannah, George A. Waters, for appellee.

ANDREWS, Chief Judge.

Lil Champ appeals the trial court's award of $13,549 for its leasehold interest in land condemned by the Department of Transportation (DOT). For the reasons which follow, we affirm the judgment of the trial court.

This case arose when the DOT condemned.25 acres of land owned by Betty Miner. Lil Champ Food Stores leased from Miner a portion of the property used as a gas station and convenience store and Meadows, Inc. held an easement across the property.

The DOT filed a declaration of taking pursuant to OCGA § 32-2-6 and paid $156,600 into the registry of the court as the amount determined by its appraiser to be just and adequate compensation for the condemned property. Meadows, Inc. and Miner filed a timely notice of appeal, demanding a jury trial on the issue of damages. Lil Champ failed to file a notice of appeal within the time prescribed by OCGA § 32-3-14; but after time had expired for Lil Champ to file its own notice of appeal, it filed a motion to join in the appeal filed by Meadows, Inc. and Miner. Although the court allowed Lil Champ to join in the appeal, the court's order also provided that Lil Champ could participate in the condemnation proceedings only for as long as the appeal of Betty Miner remained pending.

Miner subsequently settled with the DOT. Accordingly, under the terms of the order, Lil Champ was no longer entitled to a jury trial, but was bound by the $156,600 appraisal.

After holding the hearing on the apportionment of the $156,600 between Miner and Lil Champ, the court awarded Lil Champ $13,549 which was the value of the leasehold equipment and fixtures. Lil Champ now appeals the court's determination as to the value of its interest in the condemned property and also claims it was entitled to a jury trial on the valuation of the taking.

1. Lil Champ's main argument on appeal is that the trial court erred in dismissing its appeal when Miner settled with the DOT. Lil Champ contends it was entitled to a jury trial on the valuation of its interest, despite the fact that it did not file a timely notice of appeal. We disagree.

The right to appeal to a jury from a declaration of taking is absolutely conditional upon the filing of a timely notice of appeal in the superior court. Not even the trial court is empowered to extend the time for filing a notice of appeal. Dept. of Transp. v. Rudeseal, 156 Ga.App. 712, 714, 276 S.E.2d 52 (1980). However, this Court has held that a condemnee who fails to file a timely notice of appeal after being served in a condemnation proceeding, may nevertheless join in an appeal filed by other condemnees. Brown v. Dept. of Transp., 191 Ga.App. 321, 322, 381 S.E.2d 532 (1989); Dept. of Transp. v. Morris, 186 Ga.App. 673, 368 S.E.2d 155 (1988). The reasoning behind these decisions was that "since the issue of value was going to be tried anyway, fundamental fairness dictated that the condemnee who had not filed a timely appeal, but whose interests would of necessity be adjudicated at the trial on the issue of value, be allowed to participate. [Cit.]" (Punctuation omitted.) Brown, supra at 322, 381 S.E.2d 532; Morris, supra at 675, 368 S.E.2d 155.

Lil Champ contends that Brown and Morris do not make the untimely appeal dependent on the timely appeal. Lil Champ cites no authority for this proposition and we find none. Rather, the language of the cases themselves shows that this Court intended for the untimely appeal to be allowed only because the issue of valuation was going to be tried to a jury anyway and since the condemnee who had not filed a timely notice was going to have his interests adjudicated at trial, fundamental fairness required that he be allowed to participate. Brown, supra; Morris, supra. Here, since Miner settled, the issue of valuation was not going to be tried to a jury and, therefore, there was no requirement that Lil Champ be allowed to participate in a trial. To rule otherwise would be to allow Lil Champ to do indirectly that which it cannot do directly. Richmond County v. McElmurray, 223 Ga. 440, 443, 156 S.E.2d 53 (1967).

2. In its next enumeration of error, Lil Champ claims the superior court erred when it dismissed Lil Champ's appeal in the order of October 10, 1996. This is inaccurate. As set out above, in this order the superior court granted the motion to join in the appeal, conditional on Miner's continued participation. To the extent that Lil Champ claims the court should have entered the order sooner, Lil Champ shows no harm arising from this delay, nor does it state how it would have proceeded differently if the order had been entered earlier. As Lil Champ fully participated in the proceedings up until the time Miner settled with the DOT, there was no harmful error.

3. Lil Champ also appears to be arguing that the court erred in finding its right to appeal was conditioned on Miner's participation and not on Meadows' participation. Lil Champ makes no argument and does not cite to any authority in support of this enumeration. In any event, there is no evidence that Meadows was to be paid for its interest from the $156,600 paid into court. Indeed, the record shows that it had no interest in the $156,600. The consent order for the disbursement of funds provided that the $156,600 was to be divided solely between the condemnees, Lil Champ and Miner. Meadows did not appear at the hearing and did not appeal the trial court's final judgment. Although Lil Champ has submitted an affidavit from Meadows' attorney stating that Meadows' claim had not been finalized, there is nothing in the record to show Meadows' claim is to be tried to a jury or that there are any further proceedings pending in the superior court on Meadows' claim. Rather, the evidence in the record showed that Meadows settled its claim for $2200. Moreover, this affidavit was submitted after the hearing and after the court entered its order on the apportionment of the $156,600. "[T]he grounds we may consider on appeal are limited to those presented to the trial court." Rogers v. State, 224 Ga.App. 359, 360(1), 480 S.E.2d 368 (1997).

4. Next, Lil Champ argues the trial court erred when it refused to hear evidence of business losses. It argues that even though it filed no notice of appeal from the condemnation, it should have been allowed to introduce evidence at the hearing as to its business losses. Lil Champ also contends the DOT should have allowed for business losses in determining what was just and adequate compensation.

As previously discussed, "[i]f the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, as provided for in Code Section 32-3-7, such person or persons, or any of them, shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service as provided for in Code Sections 32-3-8 and 32-3-9, to file with the court a notice of appeal, the same to be in writing and made a part of the record in the proceedings." OCGA § 32-3-14. "It is well-settled that once a condemnation proceeding has been initiated by a condemning authority, that proceeding establishes the exclusive avenue for litigating the issues of just and adequate compensation. [Cits.] If, in a condemnation action initiated pursuant to the declaration of taking procedure set forth at OCGA § 32-3-1 et seq., the condemnee fails to file a timely appeal on the issue of value..., the trial court is required to `enter judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking.' OCGA § 32-3-13(b). That award then becomes res judicata with respect to the issue of just and adequate compensation." Dept. of Transp. v. Samuels, 185 Ga.App. 871, 872-873, 366 S.E.2d 181 (1988). Having failed to appeal within the requisite period of time, Lil Champ cannot now raise the issue of business losses.

Moreover, the DOT was not required to include business losses in its computation of just and adequate compensation. "Post-taking business losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses are recoverable as a separate item only if the property is `unique' and the loss is not remote or speculative." Dept. of Transp. v. Acree, 266 Ga....