Lead Opinion
Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) condemned property which was owned by Mr. Nick Petkas and others (condemnees). The issue of just and adequate compensation was tried before a jury and the verdict which was returned was in excess of the amount which had been paid into court by DOT. The trial court entered judgment in favor of the condemnees for the difference. Thereafter, DOT filed a motion for new trial. Relying upon OCGA § 32-3-19 (b), DOT also subsequently moved that the judgment in favor of the condemnees be vacated as having been prematurely entered on the jury’s verdict. The trial court denied DOT’s motion for new trial, but it did order that the judgment in favor of the condemnees be set aside. In Case No. 76525, DOT appeals from the denial of its motion for new trial. In Case No. 76526, the condemnees cross-appeal from the setting aside of the judgment.
1. Because the cross-appeal raises an issue which relates to the existence of appellate jurisdiction over this and other condemnation actions initiated pursuant to OCGA § 32-3-1 et seq., that appeal will be addressed first.
The condemnees enumerate as error the grant of DOT’S motion to set aside the judgment which had been entered on the jury’s verdict. As previously indicated, in urging that the judgment in favor of the condemnees be set aside as premature, DOT rеlied upon OCGA § 32-3-19 (b) and, in granting the motion to set aside, the trial court also relied upon that statute. OCGA § 32-3-19 (b) provides: “After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declаration of taking and which shall bear interest as provided in subsection (c) of this Code section. . . .” (Emphasis supplied.) Under DOT’s construction of OCGA § 32-3-19 (b), the entry of judgment in this case would have been authorized had no timely motion for new trial been filed but, since a timely motion for new trial was filed, the entry of judgment was premature and prohibited.
Before addressing the issue of what the statute prohibits, consideration must be given to what the statute authorizes. If read literally, OCGA § 32-3-19 (b) contemplates that the trial court “shall” enter judgment on the jury’s verdict in three enumerated instances. First, the trial court “shall” enter judgment “where no motion for new trial. ... is filed within the time provided for by law. ...” However, “the time provided for by law” for the filing of a motion for new trial does not begin to run until such time as a judgment has been entered on the jury’s verdict. Accordingly, the direction that judgment “shall” be entered in this enumerated instance is mere surplusage. A judgment “shall” necessarily have been entered by the trial court in all instances where no timely motion for new trial has been filed, for the very reason that no motion for new trial could otherwise have been timely filed. Second, OCGA § 32-3-19 (b) provides that the trial court “shall” enter judgment “where no . . . notice of appeal is filed within the time provided for by law. . . .” However, “the time provided for by law” for the filing of a notice of appeal likewise does not begin to run until such time as a judgment has been entered on thе jury’s verdict. Accordingly, the direction that judgment “shall” be entered in
“Where possible, we construe language used by the General Assembly in a manner that will not render it meaningless or mere surplusage. [Cit.]” State of Ga. v. C. S. B.,
If the language of OCGA § 32-3-19 (b) which explicitly directs the entry of judgment in certain enumerated instances is meaningless or mere surplusage, it necessarily follows that there is no validity to DOT’s construction of that language as implicitly prohibiting the entry of judgment in the unenumerated instances. To give effect to that
The trial court erred in relying upon OCGA § 32-3-19 (b) as authority for setting aside the judgment that it had entered on the jury’s verdict. Accordingly, the order of the trial court which sets aside that judgment is reversed and thе case is remanded with direction that the trial court reinstate the original judgment.
Case No. 76525
2. Technically, until such time as the remittitur in Case No. 76526 is made the judgment of the trial court, there is no actual judgment in the case upon which DOT could predicate either its motion for new trial or its appeal from the denial thereof. However, in the interest of judicial economy and fairness to the parties, we will address the merits of the errors that are enumerated in DOT’s main appeal, rather than dismiss in contemplation of DOT’s refiling of a motion for new trial or notice of appeal subsequent to the reinstatement of the judgment that is mandated by our holding in Case No. 76526.
3. The trial cоurt refused to admit into evidence some 50 of DOT’s photographs of the property. This evidentiary ruling is enumerated as error.
At trial, introduction of the photographs was disallowed on the clearly erroneous ground that they had been made subsequent to the date that the property had been taken by DOT. “It is the substantial resemblance, not the date, which should control. [Cits.]” Camelot Club Condo. Assn. v. Metro Lawns,
In denying DOT’s motion for new trial, the trial court apparently recognized that its evidentiary ruling wаs erroneous, but it further concluded that the excluded photographs were cumulative of other evidence which had been admitted in the case. The excluded photographs were not, however, cumulative of any other photographs introduced by DOT. The trial court’s ruling excluded all of DOT’s photographic evidence. The proposition that DOT’s erroneously excluded photographic evidence should be considered as merely cumulative of the oral testimony is untenable. “A condemnation case can easily become a confusing mass of numbers if the parties do not introduce clear and intelligible evidence to supplement the testimony.” Pursley, Ga. Eminent Domain, ¶ 7-10, p. 191 (1982). The trial court did allow the condemnees to introduce photographs to supplement the testimony which supported their contentions as to the just and adequate compensation for the property. DOT, however, was erroneously required to rely solely upon oral testimony to support its own contentions in that regard. The erroneous evidentiary ruling excluding all of DOT’s photographs was clearly harmful because it “effectively eviscerated [DOT’s] theory” as to just and adequate compensation for the property. Harris v. Collins,
4. The trial court refused to allow DOT to cross-examine witnesses with regard to the fact that, at the time of the taking, a pending lawsuit between two of the condemnees involved the property which was the subject of the condemnation proceeding. This ruling is enumerated as an erroneous curtailment of DOT’s right to conduct a thorough and sifting cross-examination.
The condemnees urge that this cross-examination was improper absent any showing by DOT that the legal dispute would have interfered with any sale or lease of the property. This contention ignores, however, that the very purpose of DOT’s cross-examination was to determine whether or not the legal dispute would have interfered with any sale or lease of the property and, therefore, whether or not it would have had an effect on its value. “Fаir market value is the price a seller who desires, but is not required, to sell and a buyer who desires, but is not required, to buy, would agree is a fair price, after due consideration of all the elements reasonably affecting value. [Cit.]” (Emphasis supplied.) Wright v. MARTA,
The condemnees further urge that any relevancy of the cross-examination would be outweighed by its prejudice. If, however, the witnesses had responded in the negative as to the impact of the legal dispute upon the value of the property, the condemnees certainly would not have been prejudiced. If, on the other hand, the witnesses had responded to DOT’s inquiries in the affirmative, the relevancy of those affirmative responses to the issue of the value of the property would clearly outweigh any arguable prejudice to the condemnees. “ ‘A relevant and material fact is not subject to an objection that it would inflame the minds of the jurors.’ [Cits.]” Cagle Poultry &c. Co. v. Busick,
5. The trial court allowed the condemnees to introduce evidence regarding the changes made by DOT in its plans for the property prior to the date of the actual taking. This evidentiary ruling is enumerated as error.
The condemnees urge that this evidence was admissible to rebut the testimony of DOT’s experts whose opinions as to value had been based, in part, upon the vacancy of the improvements on the date of taking. However, the only relevant inquiry was the value of the property on the date of taking. That the value of the property on that date may have been lessened as a result of the anticipated condemnation is totally irrelevant to the issue of just and adequate compensation. “[L]osses occurring to property before the actual date of taking are not compensable in direct condemnation actions. Thus, while there is a diminution in value as a result of anticipated condemnation, no compensation may be paid. [Cit.]” Josh Cabaret, Inc. v. Dept. of Transp.,
The inadmissible evidence undoubtedly caused the jury to infer that DOT was somehow guilty of pre-taking bad faith, and that such bad faith should be given consideration in the determination of the
6. DOT enumerates as error the trial court’s exclusion of statistical evidence concerning the occurrence of actual traffic mishaps at the intersection where the property was located.
It is the condemnees’ contention that the effect of this ruling was only to exclude evidence which was merely cumulative of other evidence which had been admitted regarding the existence of traffic and safety problems at the intersection. A review of the record reveals, however, that the excluded repоrt was not merely additional evidence as to the general existence of “traffic and safety problems” at the intersection. It sought to quantify and to clarify those general traffic problems by showing exactly how many actual mishaps had occurred at the intersection. The condemnees were allowed to show that the property was presumably benefited by the intersection’s high traffic count, and DOT was likewise entitled to show that that high traffic count was not an entirely advantageous element. The value of property located at a known high traffic-mishap intersection may differ from the value of property which is located at an intersection which presents only such general “traffic and safety problems” as are usually associated with a high-traffic count. Cf. Department of Transp. v. Whitehead,
Thus, the trial court’s ruling had the erroneous and harmful effect of preventing DOT from introducing relevant evidence as to an element “reasonably affecting value. [Cit.]” Wright v. MARTA, supra at 375. “ ‘Evidence which, in connection with other evidence, tends, however slightly, to prove, explain, or illustrate a fact, even though it
7. Error is enumerated as to the trial court’s ruling which allowed the condemnees to elicit testimony concerning the denial of certain permits to them by the City of Atlanta.
This evidence was totally irrelevant. “Although the presence or absence of a special use permit may reflect upon the value of a piece of property and thereby affect the amount of compensation to be paid for it, a condemnation proceeding is not the proper forum to litigate the denial of an application for such a permit. [Cit.]” United Waste v. Fulton County,
The harm occasioned by the admission of this irrelevant evidence is apparent. It undoubtedly caused the jury to infer that the denial of the permits, insofar as it was attributable to DOT’s proposed condemnation, should be given consideration in determining the value of the property on the date of taking. Thus, the trial court’s erroneous evidentiary ruling had the harmful effect of allowing the condemnees to recover “from the DOT . . . what [they] might have earned had [they] sought the proper relief in a timely manner from the party that actually denied [them] the opportunity to use [their] property as [they] desired.” Department of Transp. v. Poole, supra at 639 (1).
8. Remaining enumerations which are not otherwise discussed have been considered. None of them, however, constitutes reversible
9. In considering the general grounds on appeal, “this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdiсt. [Cit.]” Felton v. Mercer,
Judgment reversed in Case No. 76525. Judgment reversed and case remanded with direction in Case No. 76526.
Dissenting Opinion
dissenting.
Construing the evidence in favor of upholding the jury’s verdict, Ackerman/Adair Realty Co. v. Coopedge,
1. The trial court refused to admit approximately 50 photographs depicting the subject property which were shot by a DOT employee shortly after the date of taking. The issue on appeal is not whether the photographs should have been admitted, since both I and the trial court agree with the majority that it would have been better to have admitted the photographs. The issue for determination is whether the improper exclusion of this evidence constituted a material error mandating reversal. “It is incumbent upon the reviewing court to determine if the mistake was of sufficient magnitude to require a new trial. [Cit.]” Dual S. Enterprises v. Webb,
2. The trial court refused to allow the DOT to cross-examine two witnesses regarding a lawsuit between two of the condemnees or to allow the DOT to introduce into evidence the voluminous record of that lawsuit. The majority concurs with the DOT that since a jury is allowed to consider “all the elements reasonably affecting value” under Wright v. MARTA,
This court has held that the admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court. Macon-Bibb County &c. Auth. v. Reynolds,
3. The DOT’s experts testified that their opinions as to the value of appellees’ property were based in part on the fact that the improvements on the property were vacant on the date of taking. In rebuttal, condemnees were allowed to tеstify that they had difficulty trying to lease the improvements on their property during the six-year interval between the public announcement of the DOT’s plans and the actual date of taking because of the DOT’s many changes in plans and that due to the vacancy of the improvements, the appearance, though not necessarily the value, of the property had dramatically deteriorated. The majority finds that this evidence was inadmissible under Josh Cabaret, Inc. v. Dept. of Transp.,
As to the actual testimony at trial, the record is clear that appellees were not litigating an inverse condemnation suit against the DOT. Nor were they seeking compensаtory damages for any losses incurred in the period prior to the date of taking. What is clear is that Josh Cabaret, supra, is totally inapposite here. As to the inference that the DOT was “somehow guilty” of pre-taking bad faith, there is no evidence whatsoever in the record that the DOT defrauded appellees or acted outside its official capacity when it altered the plans in
While the DOT evidently believes that the inevitable response of any jury informed of the DOT’s pre-taking activities will be to impute bad faith and fraud to the DOT, I do not agree that the hostility the DOT imputes to juries renders inadmissible evidence relevant to the value of the condemned property as of the date of taking, especially where, as here, the evidence is necessary to rebut testimony by the DOT’s own experts using the effect of the pre-taking activity as a basis for a lower value for the property. The rule is too well established that wherе evidence is pertinent and admissible, it cannot be excluded merely because it would be prejudicial. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 339 (4) (
4. The majority determines the jury’s verdict must be reversed because the trial court excluded the DOT’s “quantifying and clarifying” statistical evidence regarding actual traffic accidents at or near the Piedmont-Lindbergh intersection where appellees’ property is located. This was not some hotly contested issue at trial which required reams of statistical evidence to persuade the jury. The DOT’s detailed compilation of statistics was cumulative of other evidеnce regarding the well known and uncontroverted traffic and safety problems at this intersection. Under the circumstances of this case, I cannot understand how the majority can hold that the trial court’s exercise of its discretion by refusing to admit repetitive evidence regarding a minor undisputed evidentiary matter “practically wronged” the DOT so as to mandate reversal of the jury’s verdict. See Leverett v. Flint Fuel,
5. Regarding the testimony relative to the City of Atlanta’s denial of building permits, the record consists of Robert Batcher’s statement that they had decided to abandon a building project on the property because “[w]e couldn’t get any permits to do anything to the building,” and James Beak’s statement during his explanation of the potential value of a building on the property that “the building could structurally be used if we could get a permit to use the building.” Beak’s follow-up statement was stricken by the trial court on hearsay grounds. The record clearly reveals that there was no other testimony by witnesses on this matter.
As to the comments cited by the majority which were made dur
Turning to what the transcript reveals was actually said by witnesses at trial, I cannot agree with the majority that there is any merit in the DOT’s assertion that the admission of Batcher’s and Beak’s statements constitutes reversible error under Department of Transp. v. Poole,
“ ‘Questions of relevancy of evidence, which include the issue of materiality, are for the [trial] court, and in the absence of an abuse of judicial discretion, this court will not interfere.’ [Cit.] ‘[B]road discretion is reposed in the trial court whose decision will not be disturbed except in cases demonstrating a clear abuse of that discretion.’ [Cit.]” Metropolitan Property &c. Ins. Co. v. Shepherd,
6. Based on the above discussion and my review of the remaining enumerations, I can find no reversible error in the trial court’s order denying the DOT’s motion for new trial. Since I would affirm the judgment in Case No. 76525, I respectfully dissent to the majority’s opinion in that case.