Sharpe v. Department of Transp.

• Citation: 476 S.E.2d 722,267 Ga. 267
• Decision Date: 07 October 1996
• Docket Number: No. S96G0546,S96G0546
• Parties: , 96 FCDR 3972 SHARPE et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Supreme Court of Georgia

Page 722

476 S.E.2d 722

267 Ga. 267, 96 FCDR 3972

SHARPE et al. v. DEPARTMENT OF TRANSPORTATION.

No. S96G0546.

Supreme Court of Georgia.

Oct. 7, 1996.

Reconsideration Denied Nov. 8, 1996.

Tom W. Daniel, William R. Jerles, Jr., Daniel, Lawson, Tuggle & Jerles, Perry, for Sharpe et al.

Michael J. Bowers, Attorney General., Atlanta, John A. Draughon, Michelle W. Johnson, Sell & Melton, Macon, Cathy Ann Cox-Brakefield, Assistant Attorney General, Atlanta, for Department of Transportation.

HUNSTEIN, Justice.

The Court of Appeals held that the Department of Transportation did not waive its right to object to certain testimony by condemnees' experts when the DOT failed to make a contemporaneous objection but instead chose at the close of the evidence to make a motion to strike the testimony. Dept. of Transp. v. Sharpe, 219 Ga.App. 466, 465 S.E.2d 695 (1995). Relying on Patton v. Bank of LaFayette, 124 Ga. 965, 974-975, 53 S.E. 664 (1906), the Court of Appeals found that the challenged testimony was "illegal" evidence and thus the motion to strike was proper. We granted certiorari and now hold that because the experts' testimony was probative, not illegal, evidence, the DOT's failure to object contemporaneously thereto resulted in a waiver of its right to object. ¹ Further, we henceforth disallow the use of those types of motions to strike approved in Patton, supra, except under the limited circumstance set forth herein.

1. The contemporaneous objection rule has long been a mainstay of Georgia trial practice. See, e.g., Goodtitle v. Roe, 20 Ga. 135(4) (1856); Burtine v. State, 18 Ga. 534(1) (1855). That rule provides that

in order to preserve a point of error for the consideration of an appellate court, counsel must take exception to the alleged error at the earliest possible opportunity in the progress of the case by a proper objection made a part of the record.

Nashville, Chattanooga, etc., Rwy. v. Ham, 78 Ga.App. 403, 408, 50 S.E.2d 831 (1948). Patton itself acknowledges the contemporaneous objection rule as a "wholesome rule of court which requires that all of [a party's] objections must be urged at one and the same time." Id. at 974, 53 S.E. 664.

Our appellate courts have recognized an "extension" of the contemporaneous objection rule, whereby a party is allowed to move to strike evidence which appeared admissible at the time it was adduced but which is subsequently shown to have been inadmissible, conditioned upon the party's prompt objection as soon as the inadmissibility becomes apparent. See Brown v. Techdata Corp., 238 Ga. 622, 628, 234 S.E.2d 787 (1977). Chastain v. Fayette County, 221 Ga.App. 118 (1), 470 S.E.2d 513 (1996). However, the only true "exception" to the contemporaneous objection rule was recognized by this Court ninety years ago in Patton, supra. In Patton, the Court held that a party is excused from making a contemporaneous objection to known errors in those limited instances where the error involves "illegal" rather than "secondary" evidence. This exception was premised on the fact that "[h]earsay testimony has no probative force whatsoever ( [cit.] ), and its only effect is to prejudice the party against whom it is offered." Id. at 974, 53 S.E. 664. Patton thus distinguished "illegal" hearsay evidence from "secondary" evidence, i.e., "evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid." Id. at 974, 53 S.E. 664. Only "illegal" evidence can be challenged by means of a "Patton -style" motion to strike made at any point before the case is submitted to the jury. The definition of "illegal" evidence has been expanded beyond the scope of hearsay evidence so as to include evidence inadmissible because it was obtained in violation of a criminal defendant's constitutional rights. E.g., Mable v. State, 261 Ga. 379, 381, 405 S.E.2d 48 (1991).

In the instant case, the testimony of condemnees' experts did not constitute illegal hearsay evidence and definitely did not involve matters of constitutional rights. The challenged evidence consisted of expert testimony discussing the value of the limestone deposits on condemnees' property. ² The Court of Appeals credited the DOT's argument that the testimony, although not hearsay, should be analogized to "illegal" hearsay evidence because it reflected the wrong measure of damages. We disagree.

The rule is well established that "[a]nything that actually enhances the value [of condemned property] must be considered in order to meet the demands of the Constitution that the owner be paid before the taking, adequate and just compensation." Hard v. Housing Auth. of Atlanta, 219 Ga. 74, 80, 132 S.E.2d 25 (1963). Accord Central Georgia Power Co. v. Cornwell, 141 Ga. 643(1), 81 S.E. 882 (1914). See also Gunn v. Dept. of Transp., 222 Ga.App. 684, 476 S.E.2d 46 (1996). Accordingly, the appellate courts have recognized that evidence regarding the presence of mineral deposits in condemned property is relevant to the jury's determination of the overall value of the property. Atlanta Terra Cotta Co. v. Ga. Ry., etc., Co., 132 Ga. 537, 545-546(7), 64 S.E. 563 (1909) (clay); Williams v. Mayor, etc., of Carrollton, 195 Ga.App. 590, 394 S.E.2d 389 (1990) (chewacla soil). It is equally well established that an expert is entitled to explain all the various elements considered in formulating his opinion. Moore v. State Highway Dept., 221 Ga. 392, 393, 144 S.E.2d 747 (1965); State Highway Dept. v. Howard, 119 Ga.App. 298(6), 167 S.E.2d 177 (1969). However, because the loss of mineral deposits on condemned property does not constitute a separate element of damages recoverable in a condemnation proceeding, testimony regarding mineral deposits must focus on the value of the land as enhanced by the mineral deposits and not simply on the value of the mineral deposits alone. Atlanta Terra Cotta Co., supra, 132 Ga. at 546(7), 64 S.E. 563 (no recovery both for the land as such and also for the mineral in the land); Southern Ry. Co. v. Miller, 94 Ga.App. 701, 704, 96 S.E.2d 297 (1956) (expert erred by testifying as to value of sand but giving no opinion as to value of property as a whole). See also 26 Am.Jur.2d 751, § 338. Hence, evidence of the value of mineral deposits is relevant not to establish the separate value of the deposits but to establish the value of the overall property as enhanced by the deposits.

Accordingly, while the testimony of condemnees' experts regarding the limestone deposits was relevant to the jury's determination of the overall value of the property, Atlanta Terra Cotta Co., supra, as well as to show the basis of the experts' opinions as to value, to enable the jury to evaluate the experts' credibility, and to assist the jury in determining the weight to be given the testimony, see generally White v. Ga. Power Co., 237 Ga. 341(3), 227 S.E.2d 385 (1976), overruled on other grounds, DeKalb Co. v. Trustees, etc., Elks, 242 Ga. 707, 709, 251 S.E.2d 243 (1978), the testimony was deemed inadmissible by the Court of Appeals on the basis that condemnees improperly adduced the evidence of the mineral deposits as a separate element of damages rather than as " 'one subject matter' " together with the land. Dept. of Transp. v. Sharpe, supra, 219 Ga.App. at 468-469, 465 S.E.2d 695 (citing Southern R. Co. v. Miller, supra, 94 Ga.App. at 704(1), 96 S.E.2d 297). In other words, while the limestone deposit evidence itself was probative, the evidence as presented was deemed inadmissible by condemnees' failure to place the evidence into its proper context.

Because the evidence in issue was relevant and its inadmissibility was due solely to condemnees' failure to establish the proper foundation in which such evidence could be adduced, the evidence must qualify as "secondary" evidence rather than "illegal" evidence under Patton, supra. It therefore follows that because the DOT did not raise a contemporaneous objection, the DOT "forfeited [its] right to insist that the [testimonies] should be excluded from the evidence." Id. at 975, 53 S.E. 664. Accordingly, the ruling to the contrary in the Court of Appeals is reversed.

2. The evidentiary ruling in this case, albeit erroneous, does not present this Court with a matter of "great concern, gravity, and importance to the public" so as to justify the grant of the writ of certiorari. Supreme Court of Georgia Rule 40. Rather, certiorari was granted to reconsider this Court's approval of the Patton-style motion to strike because of the confusion and unfairness that results from use of such a motion, as exemplified by the instant appeal. Confusion is shown by the difficulty between determining when evidence is "illegal" rather than "secondary," a decision so complicated that even the members of this Court cannot agree on its resolution. Unfairness is shown by the "sandbagging" effect that results from the use of a Patton-style motion to strike, in that a party can sit silent while curable error is committed then wait until it is too late for the opposing party to correct the matter before raising an objection.

Patton was rendered 60 years before the enactment of the Civil Practice Act with its rejection of stratagems that impede the desired goal of "just, speedy, and inexpensive" resolution of civil disputes. OCGA § 9-11-1. See OCGA § 9-11-46(a), which abolished formal exceptions and holds sufficient those objections asserted "at the time the ruling or order of the court is made or sought." Abolishing the Patton-style motion to strike is consistent with the prevailing procedural rule requiring contemporaneous objection. Although Patton has the strength of stare decisis behind it as a reason for maintaining the viability of its exception to the contemporaneous objection rule, stare decisis is not a particularly compelling reason here given the conflict with modern trial practice and the fact that the precedent in issue does...