Steele v. Department of Transportation, A08A1195 (Ga. App. 10/6/2008)

• Decision Date: 06 October 2008
• Docket Number: A08A1195.
• Parties: STEELE et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

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STEELE et al. v. DEPARTMENT OF TRANSPORTATION.

A08A1195.

Court of Appeals of Georgia.

Decided: October 6, 2008

PHIPPS, Judge.

The Georgia Department of Transportation (DOT) filed a condemnation petition to acquire fee simple title to 0.653 acres of land and a construction-and-maintenance easement in 0.028 acres of land within a 2.365 acre tract owned by Thomas Jerry Steele and others (condemnees). Dissatisfied with $154,050 the DOT paid into court as its estimate of the total compensation due the condemnees, they appealed to superior court. At trial, the jury returned a verdict in favor of the condemnees finding just and adequate compensation in the total amount of $308,000.

The condemnees now appeal judgment entered on the verdict. They claim that they should have been permitted to impeach the DOT appraiser's trial testimony with his pretrial estimate of just and adequate compensation. They charge the trial court with error in limiting their proof of consequential damages by refusing to allow them to show how much it had cost them to cure the DOT's property damage and how the DOT's taking of part of the property had reduced their allowable building space in the remainder. We find no reversible error and affirm.

The condemnees own a strip shopping center located at the intersection of Jonesboro and Oak Grove Roads in Henry County. The shopping center primarily consists of a building that is about 15,000 square feet and a parking lot containing 73 spaces.

In October 2004, the DOT instituted this proceeding pursuant to OCGA § 32-3-4 to acquire property rights necessary for construction of a state aid road. As required, the DOT filed a declaration of taking that incorporated a sworn affidavit of an appraiser stating "the sum of money estimated by the condemning authority to be just compensation for the land taken, including consequential damages to land not taken."¹ In this affidavit, the appraiser, Kenneth Cantrell, testified that he had estimated that the just and adequate compensation for the parcel, and any consequential damages or benefits considered, was $154,050. Pursuant to OCGA § 32-3-7, that amount was therefore deposited into the court and the land was condemned. The condemnees then filed a notice of appeal as authorized by OCGA § 32-3-14.

Before the case came on for trial before a jury in April 2007, the DOT filed a motion in limine to exclude any testimony or evidence concerning the estimate of just compensation for the condemned property in the affidavit filed by Cantrell with the declaration of taking. At the beginning of the trial, the court granted the DOT's motion.

At trial, the condemnees presented a witness, H. M. Bradford, to testify concerning compensation for the land taken and consequential damages to the remainder. After Bradford testified that he had valued the condemnees' remaining property after the taking at $1,880,154.50, he was asked what types of consequential damage he had found. He responded that he had found consequential damages consisting of a change in the elevation of the property, a reduction in the amount of available building space, and cost to cure damage to the property done by the DOT during construction. After the DOT objected to that testimony, the court heard extensive argument of counsel outside the presence of the jury. The trial court ruled: (1) that Bradford could not present evidence of cost to cure damages without giving an opinion as to how the value of the condemnees' remaining property was thereby diminished, and (2) that the fact that the condemnation of part of the condemnees' property may have precluded the condemnees from expanding the existing building was irrelevant, because the condemnees had never sought to expand the building. Bradford later retook the stand and testified, without objection, as to how the cost to cure damages, including the change in the elevation of the condemnees' remaining property, had adversely affected the property's value.

1. The condemnees charge the trial court with error in refusing to allow them to use the inconsistency between the DOT appraiser's pre-trial affidavit and his trial testimony for impeachment purposes.

"[I]t being well settled that the return of an appraiser in a condemnation case which is contradictory of his testimony on the trial may be introduced for the purpose of impeaching him though it is generally inadmissible[,]"² we agree that the trial court erred in this regard. But here, the DOT's appraiser's estimate of just and adequate compensation in the affidavit accompanying the declaration of taking was $ 154,050, his estimate of just and adequate compensation at trial was $288,600, and the jury awarded the condemnees $308,000 as just and adequate compensation. Under these circumstances, we do not find that the condemnees suffered any legal prejudice at the trial of the case as a result of the court's ruling.³

2. The condemnees next contend that the trial court erred in placing limitations on their ability to prove cost to cure damages.

"There are two elements of just and adequate compensation for a partial taking of property by condemnation: (1) the market value of the portion actually taken, and (2) the consequential damage, if any, to the remainder."⁴ "Consequential damages in a partial taking of property 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."⁵ "[E]vidence of damage to the property as a result of the taking (represented by a cost to cure) may be considered a factor in establishing the reduced fair market value of the remaining property after the taking."⁶ But even though this may be an important factor used by an appraiser in determining the value of the remainder, it is not recoverable as a separate element of damage.⁷

Consequently, in Dept. of Transp. v. Ogburn Hardware & Supply,⁸ the appraiser's testimony was found legally sufficient to show consequential damages where he found that the value of the condemnee's remaining property had been reduced by the amount of the cost to cure. In Dept. of Transp. v. Morris,⁹ however, the appraiser's testimony was found insufficient to establish consequential damages, where he stated only that he had found a certain dollar amount of damages to an improvement to the condemnee's remaining property caused by the taking but did not give any testimony establishing the fair market value of the remainder. Thus, as held in Dept. of Transp. v. Mendel,¹⁰ "the issue is not whether a specific monetary value is assigned as the cost to cure but...