328 Ga. App. 144
Ga. Ct. App.2014Background
- DOT condemned 1.7 acres of Tolers’ land in Wilkinson County in 2000; Tolers demanded a jury trial and claimed both property value and business losses from kaolin mining.
- The land was subject to a 1991 lease to J.M. Huber Corporation (Huber) giving Huber mining rights and royalty payments; Huber had been paid over $1 million historically but was not actively mining at the taking.
- In 2010 Huber assigned all rights to any condemnation award to the Tolers for no consideration (the Assignment).
- At a June 2012 trial the jury awarded $212,135 for real property taken/damaged but awarded nothing for business losses; Tolers appealed the denial of business-loss recovery.
- On appeal Tolers argued several evidentiary errors: admission of evidence about consideration (or lack thereof) for the Assignment, admission/reference to DOT’s deposit with the court, exclusion/limitation of certain expert testimony (Ginn and Bosz).
- The court found some evidentiary rulings erroneous (Assignment consideration, DOT deposit), affirmed binding admission as to Ginn, and left Bosz’s expert-qualification issue open for retrial consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of evidence about amount paid for Assignment | Assignment price is irrelevant to causation/uniqueness and business-loss value; admission prejudicial | Evidence probative of value of business-loss claim; jury can consider assignment consideration | Court: Admission was abuse of discretion; evidence not relevant to causation/uniqueness; new trial on business-loss claim granted |
| Reference to DOT’s deposit of estimated compensation | Deposit fact/amount is misleading and prejudicial; should be excluded | DOT may note deposit requirement (but not amount) | Court: Error to allow reference to deposit; deposit should not be mentioned at retrial |
| Exclusion of Ginn’s valuation testimony (motion in limine) | Tolers: Ginn should be allowed to testify on value | DOT: Counsel’s in-court statement that Ginn would not be used is a binding admission in judicio | Court: Affirmed exclusion — counsel’s representation binding on Huber/assignees; trial court within discretion |
| Exclusion/limitation of Bosz’s testimony on kaolin processing/output | Bosz qualified to testify about kaolin production and finished-product yield | DOT: Reliability/relevance concerns under expert admissibility standards | Court: Qualification/reliability assessment is for trial court; cannot review now — left to trial court at retrial |
Key Cases Cited
- Thornton v. Dept. of Transp., 275 Ga. App. 401 (review of evidentiary discretion standard)
- Davis Co., Inc. v. Dept. of Transp., 262 Ga. App. 138 (evidentiary rulings reviewed for abuse of discretion)
- Dept. of Transp. v. Dixie Highway Bottle Shop, Inc., 245 Ga. 314 (business-loss recoverability when lessee separately harmed)
- Buck's Service Station, Inc. v. Dept. of Transp., 191 Ga. App. 341 (business loss is separate recoverable item)
- Dept. of Transp. v. Mendel, 237 Ga. App. 900 (assignment consideration not relevant to fair market value of property taken)
- CNLAPF Partners, LP v. Dept. of Transp., 307 Ga. App. 511 (DOT deposit evidence inadmissible)
- HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641 (trial court gatekeeper role and standards for expert admissibility)