Thornton v. Department of Transp., A05A1223.
| Decision Date | 07 September 2005 |
| Docket Number | No. A05A1223.,A05A1223. |
| Citation | 275 Ga. App. 401,620 S.E.2d 621 |
| Parties | THORNTON v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Richard Phillips, Joseph C. Kitchings, Phillips & Kitchings, Ludowici, for appellant.
Thurbert E. Baker, Attorney General, Jerry W. Caldwell, Jesup, for appellee.
Following a jury trial in this condemnation proceeding, the Superior Court of Wayne County entered judgment in favor of the condemnees in the amount of $1,300. The trial court denied condemnee Ben F. Thornton's ensuing motion for a new trial, and Thornton appeals. Thornton contends the trial court erred in granting a motion in limine filed by the condemnor, the Georgia Department of Transportation. Thornton also contends the evidence did not support the judgment. Finding no error, we affirm.
The record reveals the following undisputed facts. At the time of the taking, Thornton owned a parcel of land in Wayne County measuring approximately 2.3 acres which had approximately 490 feet of frontage on U.S. Highway 341.1 On October 14, 1998, the Department filed a declaration of taking pursuant to OCGA § 32-3-4 et seq., condemning a 0.150 acre (approximately 6,500 square feet) tract of Thornton's property as part of a project to improve and widen a portion of U.S. Highway 341. The wedge-shaped tract comprised the entire highway frontage of Thornton's parcel and measured just under five feet wide at the narrower end and approximately 22.5 feet wide at the wider end. Based on an appraisal, the Department estimated $1,300 as the just and adequate compensation to be paid for the taken property, and the trial court issued judgment for that amount. Thornton filed a notice of appeal pursuant to OCGA § 32-3-14, demanding $19,500 as the value of the property taken and $30,000 in consequential damages to the remainder.
Before trial, the Department filed a motion in limine to prevent Thornton from offering evidence of the price for which he had contracted to sell a 50 square foot subparcel to David C. Bland, Inc. ("Bland"). The Department argued that the contract constituted merely an element or use of the land taken, for which Georgia law does not permit a separate recovery. Rather, the Department argued, such an element or use may be taken into consideration only to determine the market value of the land taken and the consequential damages to the remaining land, and, therefore, no witness may testify as to the separate value of such an element or use.
At the hearing on the Department's motion in limine, the evidence showed that over a year before the taking Thornton had entered into a written contract to sell Bland two ten-foot by five-foot billboard plots for $10,000 each. The contract did not contain a legal description of the plots but indicated that each would be "in a mutually agreeable location" on Thornton's parcel. The sale was contingent "[u]pon final written approval from the Ga. Dept. of Transportation and all other regulatory agencies (if any)." The sale of the first subparcel was completed. As planned, Bland erected a billboard on the subparcel, which was set back approximately 24 feet from U.S. Highway 341, and Bland had an easement across the intervening property.
At the hearing, the Department argued that Thornton should not be allowed to testify that, because of the taking, he lost the specific performance of a $10,000 contract to sell the second billboard plot. The trial court granted the Department's motion in limine and ruled specifically that Thornton would not be allowed to introduce the written contract into evidence or to testify that he could not complete the sale of the second billboard plot because of the taking. The trial court explained, however, that Thornton, or his expert, would be allowed to testify regarding the value of the condemned tract if it were used for a sign. In addition, the trial court explained that evidence of the agreement regarding the second billboard plot could be introduced to show the value of the remainder of Thornton's parcel if it were used for a sign and to show consequential damages to the remainder.
At trial, Thornton testified that before the taking he had installed a driveway from U.S. Highway 341 across a drainage ditch and erected a small commercial building on the property and had used the property as a used car lot. Thornton testified that the driveway cost $5,000 to install and was worth that amount. In addition, Thornton testified that Bland offered to buy two five-foot by ten-foot billboard plots for $10,000 each and that one of the sales was completed. Thornton testified that the highest and best use of part of the condemned tract was for the installation of a billboard. Thornton estimated the value of that part of the condemned tract at $10,000.
1. Thornton contends the trial court erred in granting the Department's motion in limine, ruling out the written contract for the two billboard plots and Thornton's testimony showing "the value and location of the sign under the partially performed contract." According to Thornton, this ruling deprived him "of the ability to show that he lost the value of his contract to sell another five foot by ten foot . . . sign location for $10,000 because the [Departme...
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