Dendy v. Metropolitan Atlanta Rapid Transit Authority , 163 Ga. App. 213 ( 1982 )

Carley, Judge,

dissenting.

I concur in Divisions 3, 4, and 5 of the majority opinion. However, I respectfully dissent as to the reversal of the judgment entered on the jury verdict in this case and disagree with the application of the law to the evidence as set forth in Divisions 1 and 2 of the majority opinion. The majority opinion recognizes the rule in this state that evidence of the replacement cost of a building taken by the condemnor is not probative of value unless depreciation and other factors are considered. State Hwy. Dept. v. Murray, 102 Ga. App. 210 (1) (115 SE2d 711) (1960). In this case, the majority relies upon Dept. of Transp. v. Brand, 149 Ga. App. 547, 548 (254 SE2d 873) (1979), wherein the trial court’s refusal to strike testimony of a witness for the condemnee was affirmed on the basis of the finding that there was sufficient evidence of depreciation to render probative the proffered testimony. Admittedly, Brand sets forth a very liberal standard for allowing evidence of replacement cost. However, the “other factors” existing in Brand and found to be sufficient are totally lacking in this case.

It is important to note that, in Brand, the condemnee’s witness first testified only as to replacement cost and, when a motion to strike was made by the condemnor, the witness was brought back to the stand for the specific purpose of showing depreciation. Addressing the issue of depreciation, the witness in Brand gave his opinion that nothing in the building had depreciated except the roof and he then proceeded to testify as to the age of the roof, its remaining life and the cost of a new roof. Thus, the Brand witness did give his opinion concerning depreciation. In this case, the witness Chastain gave absolutely no testimony regarding depreciation. In fact, counsel for Dendy initially tried to inquire of Chastain as to his consideration of depreciation factors. Dendy’s counsel was unsuccessful in eliciting such testimony because the trial court sustained the condemnor’s objections as to the qualifications of Chastain to offer relevant depreciation testimony. The condemnee’s attorney then abandoned this effort and proceeded to elicit only the testimony discussed in the majority opinion. In fact, on cross-examination, Chastain admitted that he had no knowledge of the elements of depreciation which affect the market value of a building. Accordingly, there is absolutely no evidence — in Chastain’s testimony or elsewhere — which would allow the jury to determine from Chastain’s replacement cost figure the depreciated value of the building as of the date of taking. The effect of the majority opinion in this case is to emasculate the rule of Murray and to allow a witness to testify as to the “brand new” replacement cost of a structure upon merely showing the age of a building and its estimated remaining life without any showing of the depreciated value of the building as of the date of taking.

Because I believe Chastain’s testimony to have been without probative value and properly stricken, I also disagree with Division 2 of the majority opinion holding as error the trial judge’s striking of a portion of the testimony of condemnee Dendy. I cannot agree with the majority that even if Chastain’s testimony were inadmissible, Dendy’s stricken testimony would be admissible in its own right. My review of the record indicates that the only testimony of Dendy which was stricken was that testimony relating to Dendy’s opinion based entirely upon Chastain’s opinion as to the replacement value of the building. Because I believe that the trial court did not err in striking the testimony of Chastain and Dendy, I likewise believe that the judgment entered on the jury verdict should be affirmed. Therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.