Partners v. Dep't of Transp..Rci Realty

• Decision Date: 30 December 2010
• Docket Number: Nos. A10A1812,A10A1991.,s. A10A1812
• Parties: CNL APF PARTNERS, LP et al.v.DEPARTMENT OF TRANSPORTATION.RCI Realty, LLC et al.v.Department of Transportation.
• Court: Georgia Court of Appeals

307 Ga.App. 511

705 S.E.2d 862

11 FCDR 4

CNL APF PARTNERS, LP et al.

v.DEPARTMENT OF TRANSPORTATION.RCI Realty, LLC et al.

v.Department of Transportation.

Nos. A10A1812

A10A1991.

Court of Appeals of Georgia.

Dec. 30, 2010.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Charles L. Ruffin, Atlanta, Ivy N. Cadle, Macon, for appellants (case no. A10A1812).Pursley, Lowery & Meeks, Charles N. Pursley, Jr., Atlanta, for appellants (case no. A10A1991).Thurbert E. Baker, Attorney General, Capers, Dunbar, Sanders, Bruckner & Belloti, Paul H. Dunbar III, Ziva P. Bruckner, Augusta, for appellee.PHIPPS, Presiding Judge.

The Georgia Department of Transportation (DOT) instituted proceedings to condemn real property on which a restaurant stood. The condemnation constituted a total taking of the property, and the condemnees sought a jury trial on their fair and adequate compensation for the taking. ¹ We granted this interlocutory review of the trial court's rulings on several pre-trial motions.

In Case No. A10A1812, condemnee CNL APF Partners, LP (CNL) appeals the trial court's denial of its motion for partial summary judgment, its motion to strike the DOT's brief in opposition to partial summary judgment, and its motion in limine to exclude evidence. For reasons that follow, we vacate the court's ruling on the partial summary judgment motion and remand for further proceedings not inconsistent herewith; we affirm the court's ruling on the motion to strike; and we reverse the court's ruling on the motion in limine.

In Case No. A10A1991, condemnees RCI Realty, LLC (RCI) and Restaurant Concepts II, LLC (Restaurant Concepts) appeal the court's denial of their several motions in limine to exclude evidence. For reasons that follow, we affirm the denial of their motions to exclude evidence of certain of the condemnees' prior knowledge of the potential condemnation, evidence of a 2003 letter from Restaurant Concepts's counsel to an appraiser, and evidence of rent that RCI had charged Restaurant Concepts for use of the property. We reverse the denial of the motions to exclude evidence of funds that the DOT placed in the court registry when it petitioned for condemnation, and evidence of the cause of a fire that damaged the restaurant on the property prior to the condemnation.

The record shows that in December 2004, CNL purchased from RCI the property at issue, on which the restaurant was operating. CNL leased the property back to RCI under a lease agreement dated December 30, 2004. RCI in turn subleased the property to a related entity, Restaurant Concepts, which continued to operate the restaurant.

On January 9, 2006, the restaurant was damaged in a fire. The restaurant ceased operating after the fire, but RCI continued to pay CNL rent on the property pursuant to the parties' lease agreement. RCI filed an insurance claim and obtained estimates for restoring the restaurant so it could reopen, but it did not restore or reopen the restaurant.

On March 23, 2006, the DOT petitioned to condemn the property and deposited into the court registry its estimate of the property's value. On April 20, 2006, RCI exercised a contractual option to terminate its lease with CNL on account of the condemnation. Subsequently, the insurance carrier paid a claim relating to the restaurant fire.

Case No. A10A1812

1. CNL sought a partial summary judgment on the issue of RCI's contractual obligations under the December 30, 2004 lease between those parties. Specifically, CNL sought a ruling on RCI's obligations, at the time of the taking, to continue paying CNL rent on the property and to restore and repair the restaurant. The trial court denied CNL's motion. We agree with CNL that this ruling was error.

The court determined that it had no jurisdiction to decide the issue because a ruling thereon would amount to an advisory opinion. But the ruling sought in the motion was not advisory—it concerned the condemnees' legally compensable interests in property that was the subject of the pending condemnation proceeding.² The court had jurisdiction over the motion for partial summary judgment filed in the condemnation action pending before it.³

The court also determined that a ruling on the issue raised in the motion for partial summary judgment would invade the province of the jury. But the construction of a contract is a matter of law for the court so long as the contract is unambiguous.⁴ This general rule of contract interpretation has been applied to the construction of a lease in a condemnation action.⁵ Thus, the construction of the lease in this case would require jury resolution only if the lease contained an ambiguity that could not be resolved by applying the pertinent rules of contract construction.⁶ The trial court did not conduct this contract analysis.

We decline to affirm the denial of partial summary judgment under the “right for any reason” rule. In the proceeding below, neither the trial court nor the DOT addressed the merits of the sole argument made by CNL in support of its motion for partial summary judgment, and no considerations of judicial economy apply given the procedural posture of this case.⁷

Accordingly, we vacate the order denying the motion for partial summary judgment and remand to the trial court for further proceedings not inconsistent herewith.

2. CNL contends that the trial court erred in denying its motion to strike as untimely filed the DOT's brief in opposition to summary judgment. The record shows that the DOT filed its brief more than 30 days after the service of CNL's motion, in violation of Uniform Superior Court Rule 6.2. But the effect of an untimely response to a motion for summary judgment is the loss of the responding party's right to present evidence in opposition to the motion.⁸ The DOT did not attempt to present evidence opposing CNL's motion, but instead used its brief solely to present legal argument. Under these circumstances, we find no abuse of discretion in the trial court's decision not to strike the DOT's brief, and we affirm that ruling.⁹

3. CNL contends that the trial court erred in denying its motion in limine. “A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. Irrelevant evidence that does not bear directly or indirectly on the questions being tried should be excluded.” ¹⁰ We review the court's ruling on a motion in limine for abuse of discretion.¹¹

CNL sought in its motion to exclude evidence of its entitlement to statutory pre-judgment interest under OCGA § 32–3–19. That Code section concerns the acquisition of property for transportation purposes and provides in pertinent part that, after a jury enters a verdict in a condemnation proceeding, the court shall enter judgment in favor of the condemnee in the amount of the jury verdict, together with accrued court costs.¹² Subject to certain limitations specified in the Code section,

[a]fter just and adequate compensation has been ascertained and established by judgment, the judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment pursuant to final judgment at the rate of 7 percent per annum on the amount awarded by final judgment as the value of the property as of the date of taking.¹³

Under this statutory framework, the amount of pre-judgment interest due a condemnee is determined after the jury enters its verdict.¹⁴ As the trial court acknowledged in its order, “all parties are in agreement that pre-judgment interest ... should not be considered by the jury in making its award.” ¹⁵ Accordingly, the evidence regarding pre-judgment interest that CNL sought to exclude through its motion in limine was not relevant to the issue to be decided by the jury.¹⁶ Nevertheless, the court denied the motion to exclude this irrelevant evidence, stating in an order prepared and presented to it by the DOT's counsel that the

best way to insure that this matter does not creep into the jury's deliberation, either consciously or subconsciously, is for the Court to explain to the jury that it is the obligation of the Court to add pre-judgment interest to any award where applicable and the jury should not consider the matter.¹⁷ The court further noted its intent to instruct the jury not to consider pre-judgment interest.

That the court can later instruct the jury to disregard irrelevant evidence is not a reason to allow the jury to hear the irrelevant evidence.¹⁸ The court erred in denying CNL's motion to exclude the irrelevant evidence.¹⁹ We reverse the denial of CNL's motion in limine.

Case No. A10A1991

4. RCI and Restaurant Concepts argue that the court erred in denying their motions in limine to exclude certain evidence. As discussed above,²⁰ the trial court should exclude evidence that does not bear directly or indirectly on the question being tried.²¹ “[T]he sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken.” ²² In the case of a total taking, as here, the just and adequate compensation generally is determined by the fair market value of the condemned property at the time of the taking. ²³ “As the lessee[s] of the condemned premises ..., [RCI and Restaurant Concepts] would be entitled to just and adequate compensation for the value, if any, of [their] leasehold.” ²⁴ When a leasehold is condemned, the lessee loses the use of the property for a specified time at a set amount of rent.²⁵ The property owner (lessor) loses the value of the improved property.²⁶ Courts should be “liberal in allowing matters to be considered by the jury which might affect [the jurors'] collective minds in determining the just and adequate compensation to be paid the condemnee.” ²⁷

(a) RCI and Restaurant Concepts moved to exclude evidence concerning funds, representing an estimate of the property's value, that the DOT had deposited into the...