PENDARVIS CONST., CORP. v. Cobb County-Marietta Water Auth., A99A0346.

• Decision Date: 08 July 1999
• Docket Number: No. A99A0346.,A99A0346.
• Parties: PENDARVIS CONSTRUCTION CORPORATION et al. v. COBB COUNTY-MARIETTA WATER AUTHORITY et al.
• Court: Georgia Court of Appeals

520 S.E.2d 530

239 Ga. App. 14

PENDARVIS CONSTRUCTION CORPORATION et al. v. COBB COUNTY-MARIETTA WATER AUTHORITY et al.

No. A99A0346.

Court of Appeals of Georgia.

July 8, 1999.

Frank Pendarvis, pro se.

Cochran, Camp & Snipes, Scott A. Cochran, Smyrna, for appellants.

Talley & Darden, David P. Darden, Marietta, for appellees.

POPE, Presiding Judge.

A jury returned a verdict of $5,826 in favor of Pendarvis Construction Corporation in a condemnation action involving an easement for an underground water line over its property sought by Cobb County-Marietta Water Authority (the "Water Authority"). Pendarvis appeals and contends a jury charge impermissibly shifted the burden of proof and the court erroneously excluded certain material evidence.

1. The court instructed the jury with regard to the burden of proof as follows:

The law puts the burden of proof upon the condemnor to prove by a preponderance of evidence what amount of money constitutes just and adequate compensation for the property taken and that all material allegations made in the condemnor's pleadings are true except such allegations as are admitted by the owner in its pleadings or in open court.

Those contentions admitted by the owner will be taken to be true without the necessity of the proof. Those allegations, neither admitted nor denied, must likewise be proven. While the burden of proof is upon the condemning authority, the owner of the property is also allowed to offer evidence upon the issues involved, and you must determine the issues in the case by the preponderance of evidence as you find it to be.

The condemnor must prove its case by what is known as a preponderance of the evidence. That is evidence upon the issues involved which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.

The court then instructed the jury on credibility, expert testimony, and several other matters including determining value of the property. Then the court gave this instruction: "The condemnee bears the burden of showing the amount of any additional damages with a reasonable degree of certainty. The amount of compensation for such additional damages cannot be left to speculation, conjecture or guess work by the jury."

The charge regarding the burden on the condemnee was erroneous. Lewis v. State Hwy. Dept., 110 Ga.App. 845, 140 S.E.2d 109 (1964). In Lewis, the court gave a charge which concluded with the following:

where the condemnee asserts the compensation to be paid, to which she is justly entitled, is greater than that shown by the condemnor's evidence, then the law places upon her likewise the burden to prove by a preponderance of the evidence that such assertion on her part is true.

Id. at 846, 140 S.E.2d 109. The court in Lewis, held that this charge impermissibly shifted the burden of proof from the condemnor. "The burden of proving value and damages never shifts from the condemnor, though a burden of producing evidence may arise on the part of the condemnee when he asserts the greater value or damage." Id. at 845(1)(b), 140 S.E.2d 109. See also Dawson v. Dept. of Transp., 203 Ga.App. 157, 158-159, 416 S.E.2d 163 (1992).

The Water Authority argues that the charge given is consistent with Lewis because it only explains that Pendarvis had the burden of producing evidence to support its claim. Id. Although the charge as given used the phrase "burden of showing" instead of "burden of proving," we conclude the two are confusingly similar in this setting. In Ga. Power Co. v. Smith, 94 Ga.App. 166(1), 94 S.E.2d 48 (1956), the court explained the difference between the burdens on the parties in a condemnation action, and in so doing said, "In a case where the power of eminent domain is exercised, the burden is on the condemnor to show the value of the property taken and the consequential damages to the remainder of the property." Thus, the word "show" was used to describe the condemnor's burden. Its use here certainly suggests that the condemnee had the burden. The charge used in this case then required Pendarvis to make this showing "with a reasonable degree of certainty." This phrase also suggests a burden of proof. See Herr v. Withers, 237 Ga.App. 420, 515 S.E.2d 174 (1999) (improper charge on reasonable degree of medical certainty).

The Water Authority contends Dept. of Transp. v. Bird, 158 Ga.App. 369, 280 S.E.2d 394 (1981) sanctions the charge given in this case. In that condemnation case, this court stated:

Where a party seeks additional damages he has the burden of proof of showing the amount of loss in a manner from which the jury or the trial judge in a non-jury case can calculate the amount of the loss with a reasonable degree of certainty.

Id. at 370, 280 S.E.2d 394. However, none of the three cases cited for the proposition are condemnation cases.¹ The court in Bird continued its reasoning and stated that once the condemnor showed a prima facie case, "the burden then fell upon the [condemnee] to show that the [condemnor's] proof of value was inadequate." Bird, 158 Ga.App. at 371, 280 S.E.2d 394.

This statement is not consistent with condemnation law. See Lewis, 110 Ga.App. at 845, 140 S.E.2d 109; Dawson, 203 Ga.App. at 157, 416 S.E.2d 163. The burden of proof in a condemnation case never shifts and Bird states that it does. As explained by the Supreme Court,

While there are involved [in a condemnation action] such matters as requiring the condemnor to make proof against its interest and the necessity for evidence to authorize the amount found for the condemnee—which would suggest that the condemnee should have the burden of proving injury, however, the basic and controlling requirement is the constitutional command that, before such taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof.

Ga. Power v. Brooks, 207 Ga. 406, 411(4), 62 S.E.2d 183 (1950). We therefore disapprove of using the language in Bird as the basis for a jury charge regarding the burden of the condemnee. We further criticize West v. Dept. of Transp., 176 Ga.App. 806, 809(2), 338 S.E.2d 45 (1985) to the extent it appears to sanction the holding in Bird.

Even taken as a whole, the charge given impermissibly placed the burden of proof on Pendarvis to show a value greater than offered by the Water Authority. As such, it was error to give the charge.

2. During the charge conference, Pendarvis stated it had no objection to any of the Water Authority's proposed jury charges. After the court charged the jury, Pendarvis stated it had no objection to the whole charge as given. Failure to object to an instruction before the jury returns its verdict generally results in a waiver of any defects in the charge. OCGA § 5-5-24(a); Bryant v. Housing Auth. of City of Atlanta, 121 Ga. App. 32(2), 172 S.E.2d 439 (1970); Pope v. Goodgame, 223 Ga.App. 672, 675(3)(c), 478 S.E.2d 636 (1996). However, "the appellate courts shall consider and review erroneous charges where there...