Overby v. State
315 Ga. App. 735
Ga. Ct. App.2012Background
- Overby pleaded guilty to first-degree arson of a dwelling owned by the victim; sentenced to 20 years on probation with restitution conditions.
- Trial court required restitution of $63,125 payable in monthly installments of $270; restitution could be suspended after five years if restitution paid.
- Victim testified to lost home value and rental income; appraiser valued pre-fire FMV at $63,125 but testified the house post-fire was worth nothing.
- Overby presented a real estate appraiser opining repair costs and his financial inability; his testimony raised questions about feasibility of repairs.
- Court held restitution should be based on the cost of repairing the home (or diminution in value if repair is absurd), but the State failed to prove repair costs, so remanded for a new restitution hearing.
- Decided May 2, 2012; judgment vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the restitution measure used was proper | Overby argues costs to repair, not diminution in value, is the correct measure | State contends diminution in value suffices given conditions | Remanded for new restitution hearing applying proper measure. |
| Whether the State proved the amount of damages | Overby asserts insufficient evidence of repair costs | State relied on diminution in value evidence from appraiser | Insufficient evidence; remand for new hearing. |
Key Cases Cited
- Harrison v. Kiser, 79 Ga. 588 (1887) (cost to restore building to prior condition when only building is damaged)
- Getz Servs., Inc. v. Perloe, 173 Ga. App. 532 (1985) (damages for building injury measured by restoration cost unless restoration would be absurd)
- City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1 (1992) (measure of damages for injury to realty equals pre- to post-injury value difference)
- Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98 (1984) (damages where restoration costs may be disproportionate; use diminution in value in some contexts)
- Mayfield v. State, 307 Ga. App. 630 (2011) (restitution appropriate when no absurd restoration; consider cost of restoration)