DEPARTMENT OF TRANSPORTATION v. 0.095 ACRES OF LAND

• Court: Court of Appeals of Georgia
• Decided: June 27, 2023
• Docket: A23A0136
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 27, 2023

In the Court of Appeals of Georgia A23A0136. DEPARTMENT OF TRANSPORTATION v. 0.095 ACRES OF LAND et al.

MCFADDEN, Presiding Judge.

This case involves the just and adequate compensation that the Department of

Transportation owes Lamar and Melody Pendley for the partial taking of their

property for a highway project. See Ga. Const. of 1983, Art. I, Sec. III, Par. I (a). In

a partial-taking case, “just and adequate compensation is the sum of the market value

of the property that is taken and the consequential damage, if any, to the property that

remains, both measured at the time of taking.” Toler v. Dept. of Transp., 328 Ga. App.

144, 146 (1) (761 SE2d 550) (2014) (citation and punctuation omitted).

After the trial court entered judgment on a jury verdict awarding the Pendleys

$648,800, the Department of Transportation appealed. The Department contends that the trial court improperly allowed the Pendleys to present certain evidence of

consequential damages to their remaining property because that evidence pertained

to losses caused by the overall project rather than the specific taking; addressed

damages that were shared by the public rather than specific to the Pendleys; or

concerned the condition of the property after the taking had occurred.

But as detailed below, the Department did not preserve its evidentiary

objections for ordinary appellate review. The trial court never definitively denied the

motion in limine in which the Department raised these objections, and the Department

did not object contemporaneously to the evidence when it was presented.

Moreover, the Department has not met the stringent requirements to obtain

reversal based on plain error. The Department has made no argument whatsoever as

to plain error, and any error by the trial court was not obvious. So we affirm.

1. Facts and procedural history.

The record shows that the Pendleys owned approximately 14 acres of real

property. Although their property was zoned for residential use, the Pendleys had a

variance that allowed them to operate a commercial business on it behind their

residence.

2 In December 2015, the Department petitioned to take .095 acres of the

Pendleys’ property as part of a project to replace the two-lane county road fronting

the property with a four-lane state highway. The new highway would not actually be

built on the property taken from the Pendleys; instead, the taken property would be

used as a right-of-way next to the highway. The Department estimated $4,500 to be

just and adequate compensation for the taking.

Dissatisfied with that amount of compensation, the Pendleys sought a jury trial

under OCGA §§ 32-3-14 and 32-3-16. After the parties conducted discovery, the

Department filed a pretrial motion in limine to prevent the introduction of certain

evidence of purported consequential damages. In that motion, the Department argued

that the Pendleys should be barred from introducing “evidence purporting to show a

diminution in fair market value of [the Pendleys’] remaining property based solely

upon the widening of the existing road fronting [their] property[,]” specifically the

anticipated testimony of the Pendleys’ expert appraiser, Bruce Penn. The Department

also argued that the Pendleys should be barred from introducing “evidence of

purported consequential damages based upon facts derived significantly after the date

of taking[,]” specifically the anticipated testimony of the Pendleys’ expert traffic

engineer, Marc Acampora.

3 After a hearing on the Department’s motion in limine, the trial court entered

an order provisionally denying it, holding that the Department “ha[d] not shown that

the evidence it seeks to exclude would not be admissible under any circumstances at

trial[.]” The trial court noted that her denial of the motion was based on the limited

record before her and was without prejudice. And the trial court stated that the

Department could “rais[e] these same objections at trial on the basis of the evidentiary

record as developed at that time.”

During the jury trial but before the Pendleys presented testimony from either

Penn or Acampora, the Department renewed its motion in limine. The trial court

stated, “For purposes of the record, I note you renewed the motion. The motion is

made on all the same grounds as previously stated; is that correct?” The Department’s

counsel stated that it was. Then the following exchanged occurred:

THE COURT: And we were present here in court approximately two weeks ago, you presented your evidence. [The Pendleys’ counsel] was here. He presented his defenses, and the Court denied your motion in limine.

[THE DEPARTMENT’S COUNSEL]: Has the Court changed its mind?

THE COURT: No, I haven’t changed my mind. I still deny it today.

4 Subsequently, the Pendleys introduced the challenged testimony without

objection by the Department. Their expert appraiser, Penn, opined that just and

adequate compensation for the partial taking was $648,800. He based this figure in

part on his opinion that the Pendleys suffered consequential damages to their

remaining property caused by the conversion of the road to a four-lane state highway.

Penn testified that the construction of a four-lane highway would diminish the

remaining property’s fair market price and opined as to what someone would pay to

buy the property after the construction of the highway. This was partly because the

highway would negatively affect the ability for vehicles to safely enter and exit the

Pendleys’ driveway. He testified that some of those costs were unique to the Pendleys

due to their business use of the property.

The Pendleys’ expert traffic engineer, Acampora, addressed safety

improvements that he believed might be required by the construction of the four-lane

state highway. He opined at trial that, once the four-lane highway was built, a right-

turn deceleration lane would be needed for the Pendleys’ driveway. He based this

opinion on the anticipated volume of traffic on the road, including the volume of

traffic turning in and out of the Pendleys’ driveway, including trucks which served

5 their business. In support of this opinion, Acampora testified that he personally

performed traffic counts in December 2017 and May 2021, and the Pendleys also

introduced documentary evidence of those traffic counts. The Department expressly

did not object to the admission of the traffic-count exhibits.

On appeal, the Department argues that “[a]ll of the evidence of the Pendleys’

claim for consequential damages was improperly admitted at trial,” pointing to the

opinion testimony of the Pendleys’ expert appraiser, Penn, and their expert traffic

engineer, Acampora. The Department asserts that this evidence was not relevant, and

should not have been admitted, for three reasons: (1) because it concerned damages

that were not alleged to have been caused by the specific taking of the small portion

of land for the right-of-way, but rather concerned damages caused by the road-

expansion project generally; (2) because it concerned damages that were shared by

the public rather than being specific to the Pendleys; and (3) because, in the case of

the traffic engineer’s testimony, it was based on traffic-count data obtained after the

taking.

2. The claimed errors have not been preserved for ordinary appellate review.

The Department did not properly preserve its evidentiary challenges for

ordinary appellate review. Our Evidence Code provides that “[e]rror shall not be

6 predicated upon a ruling which admits . . . evidence unless a substantial right of the

party is affected and . . . a timely objection or motion to strike appears of record. . .

.” OCGA § 24-1-103 (a) (1). “Once the court makes a definitive ruling on the record

admitting . . . any evidence, either at or before trial, a party need not renew an

objection . . . to preserve such claim of error for appeal.” OCGA § 24-1-103 (a)

(emphasis supplied). The question here is whether the trial court’s rulings denying the

Department’s motion in limine were definitive rulings, such that the Department was

not required to object to the evidence when it was introduced.

The trial court’s initial, written ruling denying the Department’s motion in

limine was not a definitive ruling because it left open the possibility that the court

would revisit the issue later. As detailed above, the trial court made the ruling

“without prejudice” and contemplated that the Department could raise the issue again

at trial, after the evidence was more fully developed. A ruling that leaves open the

possibility of the future admission of the evidence is not definitive. See Wilson v.

State, 301 Ga. 83, 87-88 (2) (799 SE2d 757) (2017). See also Yates v. Pinella

Hematology & Oncology, 21 F4th 1288, 1297 (II) (11th Cir. 2021) (“if the trial

court’s ruling is tentative or without prejudice, there is no definitive ruling on the

objection”) (emphasis supplied).

7 And even though the Department renewed the motion in limine at trial, the

record does not show that the trial court definitively ruled on the renewed motion.

Rather, as set forth more fully above, when the Department’s counsel asked the trial

court if she had “changed [her] mind” about the earlier ruling, the trial court replied

that she had not and that she “still den[ied] it.” There was no indication that the trial

court intended her ruling on the renewed motion to be different in any way than her

earlier, non-definitive pretrial motion. There was also no discussion by counsel or the

trial court as to whether the evidence had been sufficiently developed to allow a

different, more definitive ruling. As stated above, neither of the expert witnesses

whose testimony was at issue had begun to testify in the trial.

Arguably, the definitiveness of the trial court’s ruling on the renewed motion

in limine was unclear. But in such circumstances, the Department had the burden to

clarify that issue. An advisory committee note to Federal Rule of Evidence 103 (b),

after which OCGA § 24-1-103 (a) is “specifically patterned,” Williams v. Harvey, 311

Ga. 439, 445 (1) (a) (858 SE2d 479) (2021), explains that the rule “imposes the

obligation on counsel to clarify whether an in limine or other evidentiary ruling is

definitive when there is doubt on that point.” Advisory Committee’s Notes to Federal

Rule of Evidence 103 (b). Such notes are highly persuasive authority in construing

8 provisions of our new Evidence Code that are materially identical to Federal Rules

of Evidence, such as OCGA § 24-1-103, see State v. Almanza, 304 Ga. 553, 559 (3)

n. 6 (820 SE2d 1) (2018), and our Supreme Court has acknowledged this particular

note in discussing OCGA § 24-1-103 (a). See Williams, 311 Ga. at 453 (2) n. 13.

Because the Department did not obtain a definitive ruling on the evidentiary

challenges raised in its motion in limine and did not object contemporaneously to that

evidence when it was introduced at trial, we may review its evidentiary challenges

only for plain error. See OCGA § 24-1-103 (d); Chrysler Group v. Walden, 303 Ga.

358, 359 (812 SE2d 244) (2018).

3. The Department has not shown plain error.

To show plain error, the Department

must show an error or defect that has not been affirmatively waived by the [Department], that is clear and obvious, and that affected the [Department’s] substantial rights by affecting the outcome of the trial court proceedings; if these three requirements are satisfied, we have the discretion to remedy the error but should do so only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Chrysler Group, 303 Ga. at 370 (II) (B) (citation and punctuation omitted).

9 Neither side has made any argument on appeal as to whether or not these

requirements for showing plain error have been met. Nevertheless, because the

Department properly enumerated and argued its claims of erroneous evidentiary

rulings, we will review those claims for plain error. Hines v. State, 320 Ga. App. 854,

864 (5) (b) (740 SE2d 786) (2013). But we point out that the Department’s “fail[ure]

to articulate how the alleged error[s] satisf[y] the high standards required to establish

plain error increases the likelihood that [we] will reject the claim[s].” Id. (citation and

punctuation omitted).

(a) Evidence of diminution of value to the remaining property caused by the

overall road project.

The Department argues that the challenged testimony was inadmissible because

it concerned the diminution of value to the Pendleys’ remaining property caused by

the overall road project, rather than by the taking of the specific .095 acres of land for

the right-of-way. The Department has cited to several cases for the proposition that

a property owner’s consequential damages cannot arise merely from the general

effects of a project but must arise from the use for which the specific property was

taken. See, e. g., Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980);

Herron v. MARTA, 177 Ga. App. 201, 202-203 (2) (338 SE2d 777) (1985); Riviera

10 Assoc. v. Dept. of Transp., 174 Ga. App. 29, 29-30 (329 SE2d 221) (1985); Mason

v. Dept. of Transp., 159 Ga. App. 471 (283 SE2d 690) (1981).

But the Pendleys argue that the Department’s cases are factually inapposite.

They cite Dept. of Transp. v. White, 270 Ga. 281, 282-283 (508 SE2d 407) (1998),

in which our Supreme Court recognized that, depending on the facts of the case, the

impact of an adjacent road or public transportation project may result in continuous

and permanent consequential damage to the remainder which is compensable in a

condemnation proceeding.

There is evidence in this case that the taking of the Pendleys’ property for a

right-of-way was necessary to facilitate the highway expansion, even if the expanded

highway itself was not going to be placed on that property. Arguably, the negative

effects of the highway expansion project on the Pendleys’ remaining property arose

from the use for which the right-of-way property was taken, making the facts of this

case more similar to those in White, supra, than those in the authorities cited by the

Department. Certainly, the availability of consequential damages in such

circumstances must be decided case by case. See generally DeKalb County v. United

Family Life Ins. Co., 235 Ga. 417, 418 (219 SE2d 707) (1975) (compensable elements

of damages in condemnation proceedings must be determined on a case-by-case

11 basis). So without reaching the issue of whether the trial court abused her broad

discretion in admitting the evidence in this particular case, see generally Smith v.

State, 299 Ga. 424, 429 (2) (b) (788 SE2d 433) (2016) (a trial court has broad

discretion in determining the relevance and admissibility of evidence), we conclude

that the Department “has failed to show plain error as it is not obvious under our

precedent that [the trial court so abused her discretion].” Williams v. State, __ Ga. __

(3) (Case No. S23A0203, decided May 16, 2023).

(b) Evidence of safety concerns with ingress and egress.

The Department argues that the testimony regarding the need to mitigate safety

concerns involving vehicles turning into the Pendleys’ driveway from a four-lane

state highway was inadmissible because it involved damages shared by the public

rather than damages specific to the Pendleys. But as with the above argument, the

Department has not shown that precedent demanded a different ruling by the trial

court, so it has not shown that any error by the trial court was an obvious error. See

Williams, __ Ga. at __ (3).

The Department cites authority for the proposition that changes in traffic

patterns on adjacent roads generally are not compensable as consequential damages

in condemnation proceedings. As a general rule, an “inconvenience . . . which is

12 shared by the public in general . . . is not compensable, [but one] which is special to

the landowner . . . is compensable.” Dept. of Transp. v. Taylor, 264 Ga. 18, 20 (3) (a)

(440 SE2d 652) (1994). If a property owner’s access to the property is not

“terminated or obstructed, if he has the same access to the highway as he did

[previously], his damage is not special, but is of the same kind, although it may be

greater in degree, than that of the general public, and he has lost no property right for

which he is entitled to compensation.” Dept. of Transp. v. Katz, 169 Ga. App. 310,

312 (2) (312 SE2d 635) (1983) (citation and punctuation omitted). “[G]reater

difficulty in ingress and egress which is occasioned by a change in traffic patterns is

not an appropriate item of damages in [condemnation] proceedings.” Taylor, 264 Ga.

at 20 (3) (a) (citation and punctuation omitted).

Nevertheless, there have been cases in which Georgia courts have recognized

compensable damages in condemnation proceedings based on facts similar to those

here. For example, in Dept. of Transp. v. George, 202 Ga. App. 270, 273 (5) (414

SE2d 307) (1991), we held that a trial court did not err in admitting, to show

consequential damages to the remaining property in a condemnation proceeding,

evidence that changes to the adjacent road limited the ability for certain types of

vehicles to access the property, where such access was “critical” to the business

13 conducted on that property. We cannot say that it was an obvious error for the trial

court to allow similar evidence in this case.

(c) Evidence of post-taking traffic data.

The Department argues that the opinion testimony of the expert traffic engineer

should not have been allowed because it was based on traffic counts performed after

the December 2015 taking. But the Department has not shown plain error. As stated

above, the Department affirmatively waived its objections to the underlying traffic-

count documents entered into evidence during the traffic engineer’s testimony,

because the Department expressly stated that it had no objection to them. See

McAllister v. State, 351 Ga. App. 76, 88 (3) (830 SE2d 443) (2019) (appellant

affirmatively waived his objection to exhibits by stating that he had “no objection”

to them when they were tendered into evidence, and so could not show plain error).

And as to the opinion testimony itself, the Department again has not shown that the

trial court made an obvious error.

“The proper measure of consequential damages to the remainder is the

diminution, if any, in the market value of the remainder in its circumstance just prior

to the time of the taking compared with its market value in its new circumstance just

after the time of the taking.” Wright v. MARTA, 248 Ga. 372, 376 (283 SE2d 466)

14 (1981). But in determining whether there was diminution to the fair market value of

the remaining property, a jury may consider whether a buyer contemplating a

purchase of the remaining property at the time of the taking would take into account

the impact of the anticipated completed project. See id. at 375. The expert traffic

engineer’s opinion testimony about the potential impact of the proposed four-lane

state highway on access into and out of the property was relevant to that issue, and

the Pendleys’ expert appraiser referred to the traffic counts as a basis for reaching his

opinion about the fair market value of the remaining property at the time of the

Judgment affirmed. Brown and Markle, JJ., concur.