Steele v. Department of Transp.
| Decision Date | 25 November 2008 |
| Docket Number | No. A08A1195.,A08A1195. |
| Citation | 671 S.E.2d 275,295 Ga. App. 244 |
| Parties | STEELE et al. v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Fincher, Denmark & Williams, Steven M. Fincher, Winston A. Denmark, Jonesboro, and Emilia C. Walker, for appellants.
Thurbert E. Baker, Attorney General, Power & Cooper, Warren R. Power, McDonough, for appellee.
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. Because the trial court committed prejudicial error in refusing to allow the condemnees to impeach the DOT's appraiser, we reverse.
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.
"[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.
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, it could be argued that the condemnees did not suffer any legal prejudice at the trial of the case as a result of the court's ruling.3 And indeed Smaha v. State Hwy. Dept.4 constitutes authority in support of such an argument.
But Dept. of Transp. v. Adams5 overruled Smaha. In Adams, the condemnees' expert testified that in arriving at his opinion as to value, he had used a sale occurring over one year after the condemnation as a comparable sale. The condemnor sought to impeach the expert by showing that the same property had been sold only a few months after the condemnation. The condemnees argued that any error in the trial court's refusal to allow the impeachment was harmless because the jury had returned a verdict in an amount less than the opinion given by the expert at trial. Adams rejected the condemnees' "harmless error" argument, recognizing that if the expert had been impeached, the jury would have been authorized to discount the entirety of his testimony. Therefore, even though the verdict may have been lower than the expert's opinion as to value, it could not be said with any certainty that the verdict would not have been even lower had he been impeached.
The situation in this case is analogous to the one in Adams. Here, the condemnees' expert's estimate of just and adequate compensation was $584,135. As argued by the condemnees, if they had been allowed to impeach the condemnor's expert by showing the wide disparity in his $154,050 and $288,600 compensation estimates before and at trial, the jury might have been persuaded to render a verdict closer to the condemnees' expert's $584,135 estimate rather than the $308,000 verdict that was much more closely aligned with the estimate provided by the condemnor's expert at trial. We thus find that the court's refusal to allow impeachment of the condemnor's expert constituted harmful error requiring a new trial. The condemnees' remaining claims of error will be reviewed because of the possibility that the issues raised can recur on retrial.
"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."6 "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."7 "[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."8 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.9
Consequently, in Dept. of Transp. v. Ogburn Hardware & Supply,10 the appraiser's testimony was found legally sufficient to show consequential damages where he found that the...
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