Pribeagu v. Gwinnett Cnty.

• Decision Date: 13 April 2016
• Docket Number: No. A15A2026.,A15A2026.
• Citation: 336 Ga.App. 753,785 S.E.2d 567
• Parties: PRIBEAGU et al. v. GWINNETT COUNTY.
• Court: Georgia Court of Appeals

336 Ga.App. 753

785 S.E.2d 567

PRIBEAGU et al.

v.GWINNETT COUNTY.

No. A15A2026.

Court of Appeals of Georgia.

April 13, 2016.

Reconsideration Granted April 13, 2016.

Larry Eugene Stewart, Lawrenceville, for Appellants.

Forrest Sylvester Fields Jr., for Appellee.

McMILLIAN

, Judge.

This Court granted the application of Corneliu and Sanda Pribeagu for interlocutory review of the trial court's order granting a motion in limine filed by Gwinnett County, Georgia (the “County”) in the Pribeagus' action against the County for inverse condemnation.

The Pribeagus' complaint alleged that the County failed to maintain the road and storm water drainage system serving the Pribeagus' residence, resulting in repetitious flooding of their home and property. The County moved for summary judgment on these claims, but the trial court denied the motion. The County then filed a motion in limine, asserting that sovereign immunity barred the Pribeagus' claims for damage to personal property, cost of repair, emotional upset, and attorney fees. Following a hearing, the trial court granted the County's motion in limine and excluded the testimony of two of the Pribeagus' expert witnesses. However, the trial court granted the Pribeagus a certificate of immediate review of its ruling, which led to this appeal. The Pribeagus argue on appeal that the trial court erred in excluding evidence relating to their claims for damages to personal property and for attorney fees and in barring the testimony of two of their experts relating to damage to personal property and cost of repair.

“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.” (Citation and punctuation omitted.) Webster v. Desai, 305 Ga.App. 234, 235(1), 699 S.E.2d 419 (2010)

. “Admission of evidence lies in the sound discretion of the trial court, and we will not reverse in the absence of a showing of abuse of discretion.” (Citation and punctuation omitted.) Huckaby v. Cheatham, 272 Ga.App. 746, 752(2), 612 S.E.2d 810 (2005). See also Blackwell v. Potts, 266 Ga.App. 702, 705(1), 598 S.E.2d 1 (2004) (appellate courts review a ruling on a motion in limine for an abuse of discretion).

The Pribeagus' inverse condemnation claim is based on allegations that the County created a continuing nuisance, resulting in repeated flooding to their property. In Georgia, “[a] county, unlike a municipality, is not ... generally liable for creating nuisances.” Duffield v. DeKalb County, 242 Ga. 432, 434(2), 249 S.E.2d 235 (1978)

. Rather, a county is only liable when it “causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes.” (Citation and punctuation omitted.) DeKalb County v. Orwig, 261 Ga. 137, 138(1), 402 S.E.2d 513 (1991) (“Orwig II ”). See also Columbia County v. Doolittle, 270 Ga. 490, 491(1), 512 S.E.2d 236 (1999) (recognizing that counties may be sued in inverse condemnation for a continuing nuisance); Duffield, 242 Ga. at 433(1), 249 S.E.2d 235 (counties may be subject to liability under a theory of inverse condemnation). Thus, “a county cannot be liable for a nuisance which does not rise to the level of a taking of property” under the Georgia Constitution. Orwig II, 261 Ga. at 138(1), 402 S.E.2d 513

.¹

Accordingly, the Pribeagus are “only entitled, if [they are] entitled to damages at all, to those damages recoverable under a theory of inverse condemnation.” Orwig II, 261 Ga. at 139(3), 402 S.E.2d 513

. “Damages recoverable in an inverse condemnation are a substitute for the damages recoverable in a condemnation proceeding, and are measured by the same standard.” (Citation and punctuation omitted.) Dept. of Transp. v. Edwards, 267 Ga. 733, 737(1)(b), 482 S.E.2d 260 (1997). See also Howard v. Gourmet Concepts Intl., Inc., 242 Ga.App. 521, 524(3), 529 S.E.2d 406 (2000) (measure of damages in an inverse condemnation case same as in condemnation cases). In condemnation actions, only two elements of damages are considered: “first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned.” (Citation and punctuation omitted.) Simon v. Dept. of Transp., 245 Ga. 478, 478, 265 S.E.2d 777 (1980). See also Dept. of Transp. v. White, 270 Ga. 281, 282, 508 S.E.2d 407 (1998) ; Flo–Rob, Inc. v. Colonial Pipeline Co., 170 Ga.App. 650, 651, 317 S.E.2d 885 (1984). Cf. OCGA § 22–2–109(c). “Consequential damages ... are shown by the difference between the fair market value of the remaining property prior to the taking and the fair market value of the remaining property after the taking.” (Citation and punctuation omitted.) Dept. of Transp. v. Ogburn Hardware & Supply, Inc., 273 Ga.App. 124, 126(1), 614 S.E.2d 108 (2005).

1. The Pribeagus assert that the trial court erred in finding that they were not entitled to recover for damages to their personal property under their inverse condemnation claim and in excluding the testimony of their expert Wayne McKinley, “a personal property loss adjuster,” whom they identified as an expert to testify on their personal property losses. They argue that the trial court erred in relying on the Supreme Court's opinion in Orwig II to find that they were not entitled as a matter of law to recover damages to personal property. We agree.

In their complaint, the Pribeagus asserted that the County is liable for all “direct, consequential, special and emotional damages”² arising out of the repeated flooding of their home. Following the hearing on the motion in limine, the Pribeagus submitted a schedule prepared by McKinley listing the personal property, including furniture and other household items, as to which they are seeking damages.³ The trial court subsequently granted the motion in limine as to their claim of damage to such property finding that under Orwig II, as “[a]gainst a county, the only damages recoverable are for the reduction in value of the affected property.”

In Orwig II, the plaintiff sought to recover damages against DeKalb County resulting from two instances of sewage backing up into her home, and the jury entered a verdict awarding her damages to her real and personal property and for attorney fees. 261 Ga. at 137, 402 S.E.2d 513

. In addition, the plaintiff had asserted claims to recover damages for mental and emotional distress and attorney fees, and this Court held in DeKalb County v. Orwig, 196 Ga.App. 255, 259(2), (3), 395 S.E.2d 824 (1990) (“Orwig I ”), that such damages were recoverable against the county. It also held that the trial court erred in refusing to let the jury consider certain evidence relevant to the claim of mental distress. Id. at 261(7), 395 S.E.2d 824. This Court based its determination on a finding that the plaintiff did not have to prove a constitutional taking in order to recover against the county, id. at 258(1), 395 S.E.2d 824, and her recovery was not limited to only those damages recoverable in a condemnation proceeding. Id. at 258(2), 395 S.E.2d 824.

As noted above, however, the Supreme Court held in Orwig II that a county is only liable for nuisances that amount to a constitutional taking of property. 261 Ga. at 138(1), 402 S.E.2d 513

. Thus, the Supreme Court reversed this Court's holding to the contrary and stated that “[i]t follows from our holding that damages in cases such as this one cannot include such items as damages for mental distress and expenses of litigation.” Id. But neither this Court's opinion nor the Supreme Court's opinion in the Orwig case specifically addressed the issue of whether a plaintiff can recover for damages to personal property in an inverse condemnation action. Accordingly, we find that the trial court abused its discretion in relying on Orwig II to grant the County's motion in limine as to such damages.

Moreover, we note that the eminent domain provisions of the Georgia Constitution provide that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const. of 1983, Art. I, Sec. III, Par. I

(a). Our Supreme Court has held that as used in this provision, “[t]he term ‘property’ is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed.” (Citation and punctuation omitted.) Bowers v. Fulton County, 221 Ga. 731, 737(2), 146 S.E.2d 884 (1966). Thus, the Court criticized certain earlier decisions addressing condemnation damages, finding that they had “[failed] to perceive that the right of the owner to recover for damage done [to] his property was inclusive of damages to every species of property, real and personal, corporeal and incorporeal.” Id. The Court then concluded that

[t]he constitutional provision is susceptible to no construction except the condemnee is entitled to be compensated for all damage to his property and expense caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount which he is entitled to recover as the actual value of his building.

Id. at 738(2), 146 S.E.2d 884

. Accordingly, the Court held that the condemnee in that case was entitled to recover business losses and the cost of removing equipment, fixtures, and supplies from the condemned property. Id. at 738–39(2), 146 S.E.2d 884. See also Woodside v. City of Atlanta, 214 Ga. 75, 83(3), 103 S.E.2d 108 (1958) (noting comprehensive definition of property); R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga.App. 800, 804(2), 189 S.E.2d 114 (1972) (citing Bowers in allowing recovery for lost rental income).

Based on the foregoing, we reverse the grant of the County's motion in limine as to the Pribeagus' claim for damage to personal...