State Highway Dept. v. Rosenfeld, s. 44725-44726
| Decision Date | 03 October 1969 |
| Docket Number | Nos. 44725-44726,No. 2,s. 44725-44726,2 |
| Citation | 120 Ga.App. 439,170 S.E.2d 837 |
| Parties | STATE HIGHWAY DEPARTMENT v. Samuel ROSENFELD et al. FRANCHISE REALTY INTERSTATE CORPORATION et al. v. STATE HIGHWAY DEPARTMENT et al. Sept, 10, 1969. Rehearing Denied |
| Court | Georgia Court of Appeals |
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Richard L. Chambers, Robert E. Sherrell, Asst. Attys. Gen., Thurman E. Duncan, Deputy Asst. Atty. Gen., Atlanta, Lennie F. Davis, Columbus, for the State Highway Dept.
Foley, Chappell, Hollis & Schloth, William J. Schloth, Hatcher, Stubbs, Land & Rothschild, Richard Y. Bradley, Columbus, for Samuel Rosenfeld and others.
Hatcher, Stubbs, Land & Rothschild, Richard Y. Bradley, Columbus, for Franchise Realty and others.
Syllabus Opinion by the Court
The State Highway Department filed its petition to condemn 0.069 acres of land against Samuel Rosenfeld, the owner, Franchise Realty Interstate Corporation, the ground lessee, and Mr. and Me., Inc., the sublessee which operates a McDonald's drive-in restaturant on the premises. Condemnor and condemnees appealed to a jury in the superior court from the award of the special master, and after verdict and judgment the condemnees filed their motion for new trial. The trial court sustained Ground 4 of the motion, which complained that the court erred in charging the jury upon the question of consequential benefits, and overruled all other grounds. The condemnor appealed from the order granting a new trial, and we dismissed the appeal since it was not a final judgment subject to direct appeal and there was no statutory certificate from the trial court. State Highway Dept. v. Rosenfeld, 118 Ga.App. 524, 164 S.E.2d 259. The case was re-tried, resulting in a verdict for condemnees in stated amounts, and condemnor now appeals from the final judgment entered on the verdict in the second trial, enumerating as error the previous granting of a new trial to condemnees. Franchise Realty and Mr. and Mr., Inc., cross appeal from the judgment entered in the second trial, enumerating as error the failure of the trial court to give a requested charge on the second trial. Held:
1. 'Where an appeal is taken under any provision of paragraph (a) above, all judgments, rulings or orders rendered in the case whch are raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order appealed from was final, or was appealable by some other express provision of law contained in paragraph (a) above, or elsewhere.' Code Ann. § 6-701(b).
The present appeal is taken from a final judgment, and error is assigned on a previous nonappealable order of the court below. Under Code Ann. § 6-701(b), supra, the prior order granting condemnees' motion for new trial is now properly before us for review.
2. The sole issue raised by the main appeal is whether there was sufficient evidence of consequential benefits to the property not taken to authorize the trial court to charge the jury on that subject. The recognized rule is that to justify the charge there must be evidence as to the consequential benefits from which the jury could reasonably estimate the amount of improvement so that the consequential benefits could be set off against or deducted from the consequential damages. Andrus v. State Highway Dept., 93 Ga.App. 827, 829, 93 S.E.2d 174, affirmed 212 Ga. 737, 95 S.E.2d 781; Smith v. State Highway Dept., 105 Ga.App. 245, 246, 124 S.E.2d 305; State Highway Dept. v. Grant, 106 Ga.App. 696, 698, 127 S.E.2d 920; Ball v. State Highway Dept., 108 Ga.App. 457, 460, 133 S.E.2d 638.
Condemnor's expert appraiser testified that there would be consequential benefits as a result of the highway construction; that the property would be worth more after the taking than before. The lease under which two of the condemnees make their claim for damages in this proceeding was introduced into evidence and provided that Franchise Realty would pay to the lessor $500 per month 'until the clover leaf is opened on Macon Road for U.S. Highway #80,' and thereafter $625 per month. There was testimony from condemnees' witness that the $125 per month increase in rental upon completion of the improvement was also incorporated into the lease between the lessee and sublessee. This witness, in arriving at the value of the land, used the income approach and explained in detal to the jury how rental value of investment land was computed into market value. In essence, he testified that...
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Speer v. Gemco Elevator Co., Inc.
...the new trial on that ground will be reversed. State Highway v. Smith, 117 Ga.App. 210, 160 S.E.2d 215; State Highway Dept. v. Rosenfeld, 120 Ga.App. 439, 170 S.E.2d 837. Moreover, even where the trial court grants a new trial both on the general and one or more of the special grounds, and ......
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Strickland v. Department of Transp., A90A0313
...172 Ga.App. 766(2), 324 S.E.2d 588; accord Theo v. Dept. of Transp., 160 Ga.App. 518(4), 287 S.E.2d 333; State Hwy. Dept. v. Rosenfeld, 120 Ga.App. 439(2), 170 S.E.2d 837; Ball v. State Hwy. Dept., 108 Ga.App. 457(3), 133 S.E.2d 638; State Hwy. Dept. v. Grant, 106 Ga.App. 696, 698, 127 S.E.......
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Smith v. Mullinax
...and could not become the law of the case by virtue of not appealing within thirty days from the order. See State Highway Department v. Rosenfield, 120 Ga.App. 439(1), 170 S.E.2d 837. 2. Several of the enumerations deal with a contended lack of jurisdiction and insufficiency of process as to......
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Barrow v. City of Atlanta, 76903
...172 Ga.App. 766 (2), 324 S.E.2d 588; accord Theo v. Dept. of Transp., 160 Ga.App. 518 (4), 287 S.E.2d 333; State Hwy. Dept. v. Rosenfeld, 120 Ga.App. 439 (2), 170 S.E.2d 837; Ball v. State Hwy. Dept., 108 Ga.App. 457 (3), 133 S.E.2d 638; State Hwy. Dept. v. Grant, 106 Ga.App. 696, 698, 127 ......