White v. Department of Transportation

SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, 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.
http://www.gaappeals.us/rules
October 27, 2017
In the Court of Appeals of Georgia
A17A1109. WHITE v. DEPARTMENT OF TRANSPORTATION DO-044
DOYLE, Judge.
This appeal arises from a declaration of taking and petition to condemn
property by the Department of Transportation (“DOT”) for construction of a retaining
wall related to State Route 16. The petition was filed as to land known as Parcel 32,
which consists of a shopping center with multiple, separately owned but connected
buildings, one of which is owned by appellant, James White, Jr., who also owns an
easement in the shopping center parking lot and ingress/egress easements from the
rear of his building to the parking lot and from the parking lot to the road. White
appealed DOT’s declaration of taking, disputing that the compensation offered by
DOT was just.1 DOT filed a motion for partial summary judgment. White appeals the
trial court’s grant of DOT’s motion, arguing that (1) there is a factual dispute
regarding whether his property was included as part of the condemned property, and
(2) summary judgment was improper because his access easement rights were altered
causing consequential damages. For the reasons that follow, we affirm.
“Generally, the issue of whether compensation is just and adequate is a jury
question, not susceptible to summary judgment[, and t]he burden of proving just and
adequate compensation is on the condemnor[.]”2 Nevertheless, if it appears from the
pleadings and evidence that there is no issue of material fact, then a party moving for
summary judgment “is entitled to summary judgment as a matter of law.”3
So viewed, the evidence shows that on March 22, 2013, DOT condemned a
portion of Parcel 32, including .040 acres of land for additional right of way for
widening State Route 16 in Monticello, Georgia; .094 acres of permanent easement;
and 2 temporary driveway easements. Parcel 32 is entirely owned by Mary Patrick,
1
White also filed an inverse condemnation case to preserve his rights to just
compensation; however, that action is not before this Court at this time.
2
(Citations omitted.) Lee v. City of Atlanta, 219 Ga. App. 264, 267 (4) (464
SE2d 879) (1995).
3
Id. at 265 (2).
2
as the Trustee under the Last Will and Testament of Walter Fred Armistead, deceased.
DOT named Mary Patrick, White, and a number of other related owners, leasees, and
interested persons in its petition to condemn.
Out of all the named owners, White was the only one to file an appeal. It is
undisputed that Parcel 32 contains a shopping center and parking lot, and White owns
an 8,125 square foot tract of land (“Tract A”) covered by a commercial building (also
owned by White) within the shopping center and bounded on the north, south, and
west by Parcel 32.4 A building owned by a third party flanks the remaining east side
of Tract A. White also owns a parking and access easement on Parcel 32 that provides
for White, his tenants, and his customers: non-exclusive parking in the shopping
center parking lot, ingress and egress from State Route 16 over Parcel 32, and an
additional 20-foot wide easement for access from the shared parking lot around the
shopping center to the rear of White’s building for loading dock access. The portion
of Parcel 32 taken by DOT consists of the northern most portion of Parcel 32 fronting
State Route 16.
4
White leased the property to a discount retail chain store, but the lease ended
and the store moved out of the property around the same time as the condemnation.
3
Licensed professional engineer William Price averred that no portion of Tract
A is part of the condemned property. The deposition of real estate appraiser Michael
Biggers was presented by White, and Biggers deposed that White was owed
compensation in the amount of $2,445 for the condemnation’s impact solely to his
parking easement on Parcel 32. Additionally, Biggers testified that he calculated
consequential damages to be a 50 percent reduction in the estimated value of Tract
A due to the taking of a portion of Parcel 32 (from $122,400 to about $60,000), which
he based on the addition of a wall and guardrail that affect building visibility, the
steep grading on the driveway that affects accessability, the taking of a sign, and
potential increased water flow from the steep grading. Biggers testified that White’s
property consisted of a building and an easement, neither of which would be worth
much without the other. Price averred that the original access points to the shared
parking lot were reconnected to State Route 16 after widening and construction of the
retaining walls was completed. Biggers, however, testified that the western driveway
was more steeply graded than before, which made the property less accessible for
many of the vehicles common in a rural area such as this.
The trial court granted DOT’s motion for partial summary judgment, finding
that while White may seek compensation for his easement interest in the land for
4
which it awarded White $2,445, he could not recover damages to his contiguous
property in the condemnation proceeding itself, finding instead that White needed to
pursue those claims in an inverse condemnation action.
White contends that there is a question of fact as to whether Tract A was
considered part of Parcel 32 for ownership purposes, or alternatively, he contends that
the trial court should have addressed his claims for consequential damages to Tract
A based on the taking of his easement rights in Parcel 32. We agree with the trial
court, however, that White’s consequential damages claim to Tract A must be pursued
in his inverse condemnation action.
It is axiomatic that
in order for a condemnee to recover consequential damages to the
remainder of his property when only a part is taken, it must appear that
the damages to the remainder proximately and naturally arose from the
condemnation and taking of the condemnee’s own property.
Consequential damages to a contiguous tract of land having a different
ownership from that in which the taking occurs may be real and may in
fact exist, but a separate owner’s claim for consequential damages to
his land contiguous to the tract where the taking occurs cannot be
asserted in a condemnation action. Consequential damages to ‘the
remainder of the tract in which the taking occurs’ are the only
5
consequential damages that may be recovered in the condemnation
action.5
Despite his arguments otherwise, White presented no evidence of common
ownership of Tract A and Parcel 32. Tract A, although landlocked, is a contiguous
parcel for the purposes of condemnation.6 White does not argue on appeal that the
trial court’s award of $2,445 was not a sufficient award for the damages he sustained
to his easement over Parcel 32,7 and the remainder of his claim — the consequential
damages as testified to by Biggers that diminished the value of Tract A as a result of
5
(Punctuation omitted; emphasis in original.) Dept. of Transp. v. Simon, 151
Ga. App. 807, 810 (1) (261 SE2d 710) (1979), quoting Ga. Power Co. v. Bray, 232
Ga. 558, 560 (207 SE2d 442) (1974), and citing Southwire Co. v. Dept. of Transp.,
147 Ga. App. 606, 607 (1) (249 SE2d 650) (1978).
6
See, e.g, Bray, 232 Ga. at 560; Simon, 151 Ga. App. at 811 (1).
7
See Dept. of Transp. v. Whitehead, 253 Ga. 150, 152 (2) (317 SE2d 542)
(1984). See also Lee, 219 Ga. App. at 266 (3) (explaining that an owner of an
easement is entitled to compensation measured by the value of the easement when the
easement is extinguished by eminent domain). And we note that while DOT conceded
White could “recover consequential damages in this condemnation action for the
reduction in the value of his easement interest, if any, in the remainder of the subject
property (Parcel 32) proximately caused by the normal and proper maintenance and
operation of the public improvement on the part of the property that was taken,”
White has put forth no evidence or argument that he in entitled to such damages
beyond the $2,445 awarded by the trial court.
6
DOT’s condemnation of Parcel 32 and changes to that property — must be addressed
in his inverse condemnation action.8 While this creates the need for two cases to
address very similar subject matter, this is the rule in Georgia.9
Judgment affirmed. Miller, P. J., and Reese, J., concur.
8
See Bray, 232 Ga. at 560. White’s arguments that the estimated value of Tract
A has been reduced due to the taking of a portion of Parcel 32, the addition of a wall
and guardrail, the steep grading on the driveway, a taking of a sign, and increased
water flow are appropriately addressed via his inverse condemnation claim.
9
See Simon v. Dept. of Transp., 245 Ga. 478, 479 (265 SE2d 777) (1980)
(“Though the law generally favors the prevention of a multiplicity of actions, it
appears that condemnation law in Georgia rather strictly limits the relevant evidence
in condemnation cases and therefore separate suits for different kinds of damages are
not uncommon.”).
7