Citation Codes

Equivalent Citations

citation codes

Docket Number

44867.

Attorney(S)

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Richard L. Chambers, Assistant Attorney General, Marshall R. Sims, George J. Hearn, III, Deputy Assistant Attorneys General, for appellant. Clarke Haygood, Harold G. Clarke, for appellees.

See more information ...

Smart Summary

State Highway Department v. Peters et al., Court of Appeals of Georgia (Feb. 11, 1970)

Factual and Procedural Background

This is a condemnation case in which the State Highway Department appealed from a judgment awarding the condemnees $36,300 for the taking of 30.024 acres of farm land and other rights for construction of Interstate Highway I-75 in Monroe County. The agreed date of taking was July 9, 1965. The trial court excluded the testimony of a real estate appraiser as to value on the date of taking on the stated ground that the appraiser did not personally inspect the property until May of 1968. The State Highway Department also challenged other rulings, including evidentiary rulings on cross-examination and testimony about improvements and costs, a portion of the jury charge on consequential damages, and the trial court's failure to enter a pre-trial order on the Department's motion. The trial court overruled a motion for new trial; the Court of Appeals reviewed those rulings and reversed the judgment.

Legal Issues Presented

Whether the trial court erred in excluding an expert appraiser's opinion as to value on the date of taking because the appraiser did not personally inspect the property until nearly three years after the taking.
Whether the trial court erred in permitting cross-examination about how the exact size and shape required by the condemnor affected value.
Whether the trial court erred in refusing to exclude testimony by one condemnee and another witness concerning improvements and the cost of improving replacement land after the taking.
Whether a particular excerpt from the charge on consequential damages ("You are not confined to the damages proximately caused by the mere taking...") was erroneous, argumentative, misleading, or confusing.
Whether the trial court erred in failing and refusing to enter a pre-trial order on the State Highway Department's motion under Section 16 of the Civil Practice Act (Code Ann. § 81A-116).
Whether the trial court erred in overruling the motion for new trial in light of the exclusion of the appraiser's testimony.

Arguments of the Parties

Appellant (State Highway Department)

Contended the court erroneously excluded the opinion testimony of a qualified real estate appraiser regarding value on the date of taking, relying on precedent allowing later appraisals to be used to opine on earlier values.
Relied on Howard v. State Hwy. Dept., 117 Ga. App. 280 (160 S.E.2d 204), as controlling authority that an expert may testify as to value on a prior date even though the expert did not view or appraise the property at that earlier time, and that the lack of direct knowledge affects weight, not admissibility.
Argued that testimony about the cost of improving replacement land could mislead the jury into allowing double recovery (loss for land taken plus reproduction/improvement costs).
Moved for a pre-trial order under section 16 of the Civil Practice Act (Code Ann. § 81A-116), contending the court erred by failing to enter such an order.

Appellees (Condemnees)

Argued the trial judge's exclusion of the appraiser's testimony was a discretionary evidentiary ruling that should not be disturbed absent manifest abuse.
Contended that, for a witness who had not seen property as of the valuation date, testimony as to value should be introduced only via a hypothetical question laying the foundation; the court of appeals treated this contention as inapplicable because the witness did see the property later and relied on other information to determine prior conditions.
Argued relevance of testimony regarding improvements and costs on replacement land to show the work and expense necessary to make pasture land comparable to the land taken, and thus bearing on fair market value of the land taken.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Howard v. State Hwy. Dept., 117 Ga. App. 280 (160 S.E.2d 204)	That an expert appraiser is not precluded from testifying as to the value of land or damage on a specified earlier date merely because the expert's inspection or appraisal occurred much later; that an opinion based on hearsay or lack of direct knowledge affects weight rather than admissibility.	The court followed Howard as controlling on admissibility. It held that exclusion based solely on the expert's later inspection was erroneous, and reiterated that such deficiencies go to weight for the jury, not to exclusion.
Flemister v. Central Ga. Power Co., 140 Ga. 511 (79 S.E. 148)	Support for the abstract principle stated in the charge concerning consequential damages: measure of such damage is diminution in fair market value of the remainder as of the date of taking.	The court cited Flemister to conclude that the challenged excerpt from the charge was correct as an abstract principle of law and not misleading when read in context.

Court's Reasoning and Analysis

The Court of Appeals reviewed the enumerated assignments of error in sequence and explained its reasoning as follows:

Exclusion of Expert Testimony: The court examined the trial judge's stated basis for exclusion — that the appraiser had not seen the property as it existed on July 9, 1965 — and concluded the judge applied a single-objective test (no personal inspection closely related in time to the taking) rather than exercising discretion on whether the witness qualified as an expert. The court contrasted that approach with the principle articulated in Howard, under which an appraiser who inspected the property later may nonetheless testify as to value on an earlier date and deficiencies in direct knowledge or reliance on hearsay affect the weight of testimony, not its admissibility. The opinion summarized the appraiser's proffered foundation: the witness's training and experience, his May 1968 inspection, information obtained from a condemnee, various photographs, soil percentage data, terrain and erosion/drainage conditions, information from State Highway Department employees about conditions at the time of taking, comparable sales (one 21 months before taking and another 4 months after), and an annual appreciation factor used in valuing farm land, plus consideration of diminished usefulness for dairy operations because of limited access. Based on these points and the Howard authority, the court concluded the trial court erred in excluding the expert's testimony on the ground stated.
Cross-Examination Issue: The court briefly addressed the second enumeration (objections to cross-examination about how exact size and shape affected value) and found it without merit, but did not elaborate on factual details in the opinion.
Testimony about Improvements and Reproduction Costs: The court analyzed the condemnation-evidence dispute over testimony by a condemnee and another witness about improvements and costs of improving replacement land. The condemnees argued the evidence was relevant to show the work and expense necessary to improve pasture land to a comparable state and thus relevant to fair market value. The State Highway Department warned of the risk of double recovery. The trial judge allowed the testimony but instructed the jury that its consideration was limited to determining the value of the land taken and consequential damages to the remainder. The appellate court concluded the evidence had some relevance to market value (e.g., the cost of improving other land might affect bargaining between willing buyers and sellers) and that, given the court's limiting instructions, there was no showing of harmful error. The court suggested that if offered again at another trial, more explicit limiting instructions would be appropriate.
Charge on Consequential Damages: The court considered the challenged excerpt of the charge defining consequential damages in terms of diminution in fair market value of the remainder as of the date of taking. Citing Flemister, the court held the statement was a correct abstract principle of law and not misleading or confusing when read in context with the entire charge on consequential damages.
Failure to Enter Pre-Trial Order: The court acknowledged that Section 16 of the Civil Practice Act (Code Ann. § 81A-116) is couched in mandatory language and that it is error for a court to ignore the statute's mandate. Nevertheless, after reviewing the entire record, the Court of Appeals concluded there was no basis to find harmful error requiring reversal on this ground.
Motion for New Trial: The court concluded that the trial judge erred in overruling the motion for new trial for the reasons set out in Division 1 (i.e., the erroneous exclusion of the appraiser's testimony). The court thus reversed the judgment.

Holding and Implications

Holding: Judgment reversed.

Direct consequences: The Court of Appeals reversed the trial court's judgment awarding $36,300 to the condemnees. The court specifically held that the trial judge erred in excluding the expert appraiser's opinion testimony on the sole ground that the appraiser did not personally inspect the property close in time to the taking, and it also held the trial judge erred in overruling the motion for new trial for that reason. The court found no harmful error as to the challenged cross-examination, the admission of testimony about improvements (given the trial court's limiting instructions), the consequential-damages charge, or the failure to enter a pre-trial order.

Broader implications: The opinion relies on and follows Howard v. State Hwy. Dept. for the proposition that a later inspection does not automatically render an appraiser's opinion inadmissible, placing deficiencies in direct knowledge and hearsay within the realm of weight for the trier of fact. The court did not purport to announce a new rule of law; it applied existing precedent and found reversible error only as to the exclusion of the expert and the overruling of the motion for new trial.

Judges Whitman and Evans concurred with the opinion of the Court of Appeals.

Show full summary ...

STATE HIGHWAY DEPARTMENT v. PETERS et al.

The trial judge erred in excluding the expert opinion testimony of an appraiser as to value on the date of taking for the stated reason that this appraiser did not personally inspect the property involved in the condemnation until nearly three years thereafter, and consequently erred in overruling this ground on the motion for new trial. The remaining enumerations disclose no harmful error.

ARGUED NOVEMBER 4, 1969 — DECIDED FEBRUARY 11, 1970.

In this condemnation case the State Highway Department appeals from a judgment of $36,300 in favor of the condemnees for the taking of 30.024 acres of farm land and other rights for the construction of Highway I-75 in Monroe County, and from the overruling of a motion for new trial.

JORDAN, Presiding Judge.

1. The agreed date of taking is July 9, 1965, and the State Highway Department asserts error in its first enumeration on the refusal of the court to allow a real estate appraiser to give his opinion as to values on that date because he did not personally inspect the property until May of 1968.

The witness testified at length concerning his training and experience in appraising, and his proffered testimony as to how he arrived at his opinion discloses that in addition to his inspection in May of 1968, he relied on information obtained from one of the condemnees at that time, various photographs, information concerning the percentage of various types of soil on the land, terrain features, including erosion and drainage conditions, information obtained from State Highway Department employees concerning the condition of the property at the time of the taking, valuations based on sales of other property, including a sale 21 months before the taking and another 4 months after the taking, a percentage factor of 8% per year respecting the average annual increase in value of farm land in Georgia, and the loss in usefulness of the land for a dairy because the limited access right of way separated the buildings from the major portion of the pasture land.

Before hearing the testimony of the witness as to how he reached his opinion, but after the witness had testified that he did not inspect the property until May of 1968, the trial judge stated, in considering the objection of the condemnees, "I think the case as a whole — the witness, even though he might qualify as an expert, cannot testify to the value of something that he has never seen and this witness did not see this farm as it existed July 9, 1965." Later, in reiterating his ruling after hearing the additional testimony of the witness, he stated, "The only thing I said is that my opinion is that Mr. Wigley could not give an opinion of the value of the land on July 9, 1965."

In view of the above statements, it is clear that the trial court, in excluding the testimony of this witness, did not purport to act in the exercise of a sound discretion as to whether the witness qualified as an expert, but pretermitted this issue and excluded the testimony on a single objective test — no personal inspection by the witness closely related in time to the taking. Accordingly, the contention of the condemnees that the ruling is one made in the exercise of a sound discretion, which should not be disturbed unless manifestly abused, is without merit.

The condemnees further contend that for a witness to testify as to the value of an object which he has never seen, his testimony must be in response to a hypothetical question which lays the proper foundation. The assumption in this contention involves a situation not applicable to the present case, for the witness did see the land, and did consider information to determine conditions as they existed three years previously, and the cases cited by the condemnees do not support the contention.

The appellant relies, among other cases, on Howard v. State Hwy. Dept., 117 Ga. App. 280 ( 160 S.E.2d 204). There the trial court allowed a witness qualified as an expert to testify concerning his appraisal in 1964 for a taking in 1961, and this court, in upholding the ruling of the lower court allowing the witness to testify as an expert, stated conclusions which we summarize as follows: 1. An expert appraiser is not precluded from testifying as to the value of land or damage thereto on a specified date merely because he did not view the property or make an appraisal until much later. 2. His opinion of value is not inadmissible because it is based on hearsay and not on direct knowledge. 3. The lack of actual knowledge goes to the weight of his opinion, a jury question, and does not render the opinion inadmissible. Having again examined the applicable Code provisions (§ 38-1708, 38-1709, 38-1710) and the cases relied upon in the Howard case, we follow the Howard case and consider it controlling in determining the admissibility of the rejected testimony in the present case.

2. The second enumeration, based on the objections to the cross examination of a witness as to how the exact size and shape required by the condemnor affected value, is without merit.

3. The third and fourth enumerations are directed to the refusal of the court to exclude the testimony of one of the condemnees and another witness concerning improvements and the cost of improving land purchased by this condemnee onto which he removed the dairy business from its location on the land divided by the limited access right of way acquired by the State Highway Department.

In their brief the condemnees argue relevancy on the basis that both witnesses testified as to the similarity of the new farm to the old farm, and that "the questions asked and the answers given must certainly be proper in order to show the work and expense necessary for improving pasture land to the state of the land upon which the right of way was taken. These are facts which are directly illustrative of the fair market [value] of the land taken." Among other reasons the State Highway Department argues, in effect, that it could mislead the jury into allowing a double recovery, for the loss of the land taken and consequential damages thereto, plus reproduction costs.

In the lower court the judge, in informing the jury that he would allow this testimony, referred to an earlier ruling sustaining an objection on a continuing basis to evidence "in the nature of what the condemnee contended to be the reproduction costs of bringing the new farm up to the same quality of the farm that is involved in the proceedings" and stated that he would "now allow the condemnee[s] to go into that line of testimony for you to consider along with the other evidence that will be in the case." His final instructions delimit the jury to findings based on the value of the land taken and consequential damages to the remainder.

We think that the evidence is not without some relevance in enabling the jury to determine the true market value of the land being taken and the damage to the remainder, to the extent that the cost of improving other land might affect the price that the owner might be willing to accept and that a buyer might be willing to pay for land already improved, in dealing with each other at arm's length, and the instructions of the court, as given, did not authorize the jury to consider the evidence for any purpose other than to arrive at the value of the land involved in the condemnation. Under these circumstances we do not think there is a showing of harmful error, but in the event of another trial, if the evidence is again offered, it would be appropriate to limit its consideration under somewhat more explicit instructions.

4. The fifth enumeration is directed to an excerpt from the charge, as follows: "In determining consequential damages, if any, to the part not taken, you are not confined to the damages proximately caused by the mere taking, but you may consider any evidence of damages to the remainder of the property, lessening its fair market value as of the date of taking."

The above excerpt is immediately preceded by the following: "You will consider whether consequential damages would naturally and proximately arise to the remainder of the owners' property from the taking of that part which is taken and devoted to the purpose for which it is taken, including its maintenance and operation. The measure of such consequential damage, if any you find, is the diminution or lessening the fair market value of the remainder of the property, proximately arising from the causes just mentioned."

We consider the excerpt correct as an abstract principle of law. See Flemister v. Central Ga. Power Co., 140 Ga. 511 (10) ( 79 S.E. 148). There is also no merit in the contention that it is argumentative, misleading, or confusing, especially when considered in context with the entire charge on consequential damages.

5. In the seventh enumeration the State Highway Department insists that the court erred in failing and refusing to enter a pre-trial order on its motion. While § 16 of the CPA as amended (Ga. L. 1966, pp. 609, 628; 1967, pp. 226, 231; Code Ann. § 81A-116) is couched in mandatory language, and it is error for the court to ignore the mandate of the statute, this court concludes upon a review of the entire record, that no basis exists to support a determination of harmful error requiring reversal.

6. The trial judge erred in overruling the motion for new trial for the reasons set forth in the first division of this opinion.

Judgment reversed. Whitman and Evans, JJ., concur.

STATE HIGHWAY DEPT. v. PETERS