McDaniel v. Department of Transp.

• Citation: 200 Ga.App. 674,409 S.E.2d 552
• Decision Date: 15 July 1991
• Docket Number: No. A91A0239,A91A0239
• Parties: McDANIEL et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 552

409 S.E.2d 552

200 Ga.App. 674

McDANIEL et al. v. DEPARTMENT OF TRANSPORTATION.

No. A91A0239.

Court of Appeals of Georgia.

July 15, 1991.

Reconsideration Denied July 29, 1991.

Ga.App. 1991.

Kris Knox, Baxley, for appellants.

Michael J. Bowers, Atty. Gen., Atlanta, Zorn & Caldwell, William A. Zorn, Jesup, for appellee.

SOGNIER, Chief Judge.

The Department of Transportation condemned property on three parcels of land in Appling County when widening U.S. Route No. 1 and deposited $7,350 with the court as its estimate of just and adequate compensation for the property. Two of the parcels were owned in fee simple by Fannie Mae McDaniel and Earl D. McDaniel. Orien White owned a life estate in the third parcel in which Fannie Mae McDaniel owned the remainder interest. The condemnees appeal from the jury verdict awarding them $9,270 as just and adequate compensation for the property.

1. The DOT's expert witness, T.H. Weatherly, testified on direct examination that his opinion of the value of the property being taken included no amounts for consequential damages because of his determination that there was no reduction in the value of the remaining properties. On cross-examination, appellants' counsel asked Weatherly, "[n]ow since the condemnation have you checked to see whether [condemnee Fannie M.] McDaniel's apartments [in a building on one of the parcels] have been rented in the last year and a half?" Although Weatherly had been asked and had answered a similar question regarding a rental house on another parcel involved in the condemnation, the DOT objected to the above question on the basis that it improperly addressed matters subsequent to the date of the taking. Although appellants' counsel informed the court that the purpose of the question was to explore the matters the DOT's expert witness had considered in arriving at his opinion, the trial court sustained the DOT's objection. Appellants argue that ruling was error because it impermissibly infringed upon their right under OCGA § 24-9-64 to cross-examine thoroughly the DOT's expert witness regarding his testimony on the lack of consequential damages.

We agree with appellants that the trial court erroneously excluded Weatherly's response. "While it is not necessary that an expert witness state the facts upon which he bases his opinion, [cit.], it is error to refuse to permit him to do so for the purpose of showing the basis of the opinion. [Cits.] It matters not whether the facts are sought from the witness while on direct or on cross examination. These may or may not be admissible as direct proof of value, depending upon their nature, but they are generally admissible for showing the basis of the expert's opinion as to value and for enabling the jury to evaluate its weight." State Hwy. Dept. v. Howard, 119 Ga.App. 298, 303(6), 167 S.E.2d 177 (1969). "[A] jury is entitled to know all of the facts upon which the witness' opinion rests and the facts may be brought out on cross-examination. [Cit.; Howard, supra.]" Eason v. State, 260 Ga. 445, 446, 396 S.E.2d 492 (1990).

Although the DOT argues that evidence of lost rentals on the remaining property after the date of taking is irrelevant (but see Continental Corp. v. Dept. of Transp., 185 Ga.App. 792, 794(1), 366 S.E.2d 160 (1988), rental value or diminished rental value can be considered insofar as it helps to establish the fair market value of the remaining property), the issue is not whether appellants sustained lost or diminished rents as a result of the condemnation or whether consideration in some manner of the rents was proper in the condemnation proceeding sub judice (a subject on which we intimate no opinion). Rather, the issue is whether appellants should have been allowed to cross-examine Weatherly on the rentals in order to show the jury whether his valuation had--properly or improperly--included or excluded the rental value issue. Appellants' question was proper and under Howard, supra, and eason, supra, the trial court's restriction on appellants' right of cross-examination of Weatherly was reversible error.

2. Appellants contend the trial court erred by denying their motion for a partial directed verdict because the DOT failed to carry its burden of proof by establishing the damages to each of the three separate pieces of property condemned and the different improvements to each. Weatherly, the DOT's sole witness, testified that: from Tract One, a vacant unimproved piece of property, the DOT was taking .04 of an acre; from Tract Two, on which was situated an older frame house, the DOT was taking .21 of an acre, including a wood fence and a small sign; and from Tract Three, on which were situated some motel units, the DOT was taking .121 of an acre, including a canopy and a planter. It appears that these properties do not abut one another, but are separated by roads or other properties not involved in this condemnation. Weatherly testified that the total taking for all three properties combined was .471 of an acre ¹; that he appraised the properties by looking to sales of comparable properties; that he made the appraisal separately as to each parcel of land; and that the combined value of the property being taken, "land and all improvements," was $7,270. As noted above, he testified that he determined there was no reduction in the value of the remaining properties.

Appellants' expert testified to the value of each individual parcel and its improvements, which he stated amounted to $15,742, and calculated the consequential damages to the remaining properties as totalling $51,464.

" '(T)he basic and controlling requirement is the constitutional command that, before [the] taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof. To obtain a verdict fixing that value, the taker must introduce evidence showing value ...[.] That ruling is consistent with the ruling placing the burden of proving the value upon the condemnor.' [Cit.] 'The condemnor meets this burden as soon as it introduces evidence of value. (Cit.)' [Cit.]" Glover v. Dept. of Transp., 166 Ga.App. 512, 304 S.E.2d 567 (1983).

There is no issue in this appeal regarding the propriety of the DOT's consolidation of condemnation proceedings against these three separate and distinct parcels of property into one in rem action. See Marist Society v. City of Atlanta, 212 Ga. 115, 118(3), 90 S.E.2d 564 (1955). Rather, the issue is whether the DOT was required to prove the value of each property it condemned notwithstanding the consolidation of proceedings against these three properties. Clearly, the burden is on the condemnor to prove the value of property taken, see Glover, supra, and that burden cannot be avoided merely by consolidating multiple takings into one condemnation proceeding. This is not to say that there are not certain circumstances, such as where the values of the land and the improvements on each parcel are equal, where the DOT's burden as condemnor can be carried by adducing evidence of the value of the combined properties. However, such is not the situation in the case sub judice where, quite aside from the confusion the jury must have experienced as a result of the DOT's expert's testimony regarding the amount of acreage actually condemned in each parcel, the DOT adduced no evidence indicating that the value of land and improvements on each of the three parcels was equal. Indeed, Weatherly's testimony regarding the differences among the non-contiguous parcels as to development and the presence of improvements thereon suggests the parcels were not of equal value.

We agree with appellants that the DOT failed to carry its burden of proving the value of each of the three properties so as to enable the jury to determine the just and adequate compensation due appellants. We do not agree with the DOT or the special concurrence that Department of Transp. v. Olshan, 237 Ga. 213, 216-217, 227 S.E.2d 349 (1976), stands for the proposition that where multiple properties have been combined in one condemnation action, the condemnor is not required to prove the value of each property it condemns. In Olshan, condemnee Martin Olshan owned by warranty deed a 64 acre tract of land. The remaining condemnees based their ownership rights in that one tract of land on security deeds each held to a portion of the tract. The Supreme Court rejected the argument that these " 'owners' " were entitled to separate appraisals and separate trials as to the respective parcels in which they held an interest, id. at 215-216, 227 S.E.2d 349, where there was a " 'common denominator' " (e.g., condemnee Martin Olshan) whose ownership right attached "to [the] one tract of land in its entirety." Id. at 216-217, 227 S.E.2d 349. Instead, the Supreme Court authorized the condemnor to proceed to a conclusion with only one in rem action, thereby holding that the condemnor is entitled to bring only one action against all claimants with ownership interests in the property. As summarized in Department of Transp. v. McLaughlin, 163 Ga.App. 1, 3, 292 S.E.2d 435 (1982), the principle in Olshan is that "all claimants to one piece of condemned property [can] be joined in one action for resolution of all issues by the trial." Accordingly, the appellate decisions applying the holding in Olshan all involve one property with multiple ownership interests therein, typically that of lessor/lessee. E.g., Fong v. Dept. of Transp., 194 Ga.App. 702(1), 391 S.E.2d 704 (1990); Smiway, Inc. v. Dept. of Transp., 178 Ga.App. 414, 415-416(3), 343 S.E.2d 497 (1986); McLaughlin, supra, 163 Ga.App. at 2-4(1), 292 S.E.2d 435. since the issue here is not the presence of multiple ownership interests in one tract of property but of multiple properties, Olshan is not applicable here.

We note that the verdict form did not require the jury to allocate separately the amount of just and adequate...