2016 program materials - institute of continuing … program materials m printed by: institute of...

COSPONSORED BY:Eminent Domain Section, State Bar of Georgia

Institute of Continuing Legal Education in Georgia

THE TRIAL OF AN EMINENT DOMAIN

CASE FROM START TO FINISH

2016 PROGRAM MATERIALS

m

Printed By:

Institute of Continuing Legal Education in Georgia • P.O. Box 1885 • Athens, Georgia 30603-1885

Publication No.

169133

The Institute of Continuing Legal Education in Georgia (ICLE) is the

not-for-profi t educational service of the State Bar of Georgia and is a

consortium of the Bar and the Law Schools of the Universities of Georgia,

Emory, Mercer, Georgia State and John Marshall. It is fully self-supporting

and receives all of its income from tuition charges and sale of publications.

ICLE exists solely to serve the educational needs of practicing lawyers with

any surplus revenues being devoted entirely to the improvement of CLE

products and services.

Copyright © 2016 by the Institute of Continuing Legal Education in Georgia. All rights reserved.

Printed in the United States of America. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying,

recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education in Georgia’s publications are intended to provide

current and accurate information on designated subject matter. They are off ered as an aid to

practicing attorneys to help them maintain professional competence with the understanding that

the publisher is not rendering legal, accounting, or other professional advice. Attorneys should

not rely solely on ICLE publications. Attorneys should research original and current sources of

authority and take any other measures that are necessary and appropriate to ensure that they are

in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the

presentation of information on their designated subjects at the seminar. The opinions expressed

by the faculty in their papers and presentations are their own and do not necessarily refl ect the

opinions of the Institute of Continuing Legal Education in Georgia, its offi cers, or employees. The

faculty is not engaged in rendering legal or other professional advice and this publication is not a

substitute for the advice of an attorney. This publication was created to serve the continuing legal

education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a

competent attorney or other professional. If you require legal or other expert advice, you should

seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this

book was correct at press time, the publisher and faculty do not assume and hereby disclaim any

liability to any party for any loss, damage, or disruption caused by errors or omissions, whether

such errors or omissions result from negligence, accident, or any other cause.

iii

FOREWORD

The Institute is especially grateful to our outstanding Seminar Chairperson(s) for providing

the necessary leadership, organization, and supervision that has brought this program into a

reality. Indeed a debt of gratitude is particularly due our articulate and knowledgeable faculty,

without whose untiring dedication and eff orts this seminar would not have been possible. Their

names are listed on the PROGRAM page(s) of this book and their contributions to the success of

this seminar are immeasurable.

I would be remiss if I did not extend a special thanks to each of you who are attending this

seminar and for whom the program was planned. All of us hope your attendance will be most

benefi cial as well as enjoyable. Your comments and suggestions are always welcome.

February, 2016 Stephen J. Harper

Executive Director

Institute of Continuing Legal

Education in Georgia

Presiding:

Jason P. Wright, Program Chair, Lewis Brisbois Bisgaard & Smith LLP, Atlanta

7:30 REGISTRATION AND CONTINENTAL BREAKFAST

(All attendees must check in upon arrival. A removable jacket or sweater is recommended.)

MINIMOCK TRIAL

Pursley City Dept. of Transp. v. Hubert Theater Group, Inc., et al.

8:15 WELCOME AND INTRODUCTION

Hon. Robert F. Mumford, Judge, Superior Court, Rockdale Judicial Circuit, Conyers

Charles N. Pursley, Jr., Pursley Friese Torgrimson, Atlanta

Donald W. Janney, Troutman Sanders LLP, Atlanta

8:30 PRE TRIAL MATTERS: MOTIONS IN LIMINE, MOTIONS TO COMPEL, SANCTIONS, MOTIONS

TO EXCLUDE, PROFESSIONALISM/ETHICS INTEGRATED ON DISCOVERY ABUSE

Elizabeth R. Story, Pursley Friese Torgrimson, Atlanta

Melissa J. Perignat, Holt, Ney, Zatcoff , & Wasserman, LLP, Atlanta

9:10 OPENING

Charles L. “Buck” Ruffi n, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Macon

Kenneth W. Carpenter, Zachary & Seagraves, Decatur

9:50 BREAK

10:00 DIRECT AND CROSS OF CONDEMNEE REAL ESTATE APPRAISER

William A. White, Attorney at Law, McDonough

Warren R. Power, Power-Jaugstetter, McDonough

Kenneth Cantrell, Senior Managing Director, Valbridge Property Advisors, Atlanta

10:45 DIRECT AND CROSS OF ENGINEER

Abdul Amer, A&R Engineering, Inc., Marietta

Andrea C. Jones, The Galloway Law Group, LLC, Atlanta

Robert W. Diggs, Weiner, Yancey, Dempsey & Diggs, LLP, Atlanta

11:30 CASE UPDATE

Anne W. Sapp, Anne W. Sapp, P.C., Atlanta

12:00 LUNCH AND SECTION BUSINESS MEETING PRESENTATION OF PURSLEY AWARD

v

PROGRAM

12:30 SPECIAL ETHICS / PROFESSIONALISM PRESENTATION

Mock Trial Faculty

1:00 DIRECT AND CROSS OF CONDEMNEE BUSINESS EVALUATOR

Leanne Gould, HDH Advisors, LLC, Atlanta

R. Matthew Reeves, Andersen, Tate & Carr, P.C., Duluth

George L. Lewis, George L. Lewis P.C., Savannah

2:00 BREAK

2:15 MOTION FOR DIRECTED VERDICT ON UNIQUENESS, CHARGE CONFERENCE

Nicholas S. Papleacos, Chamberlain, Hrdlicka, White, Williams & Aughtry, Atlanta

Kenneth L. Levy, Zachary & Segraves, Decatur

Thomas L. Fitzgerald, Hulsey, Oliver & Mahar, LLP, Gainesville

2:45 CLOSE

Richard N. “Dick” Hubert, Attorney at Law, Atlanta

Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta

3:00 ADJOURN

vi

PROGRAM

TABLE OF CONTENTS

vii

PAGE CHAPTER

Foreword .................................................................................................................................................................. iii

Program Schedule ..................................................................................................................................................v

Pre-Trial Matters: Motions in Limine to Exclude Evidence and Motions for

Sanctions and to Compel Discovery in Condemnation Cases ....................................................... 1–38 01

Melissa J. Perignat and Elizabeth R. Story

Opening ................................................................................................................................................................1–4 02

Kenneth W. Carpenter

Materials Were Not Submitted for This Presentation at the Time of Printing/Duplication ............ 03

William A. White, Warren R. Power, and Kenneth Cantrell

Direct and Cross of Engineer ...................................................................................................................... 1–15 04

Andrea C. Jones and Robert W. Diggs

Eminent Domain Case Law Update ............................................................................................................1–9 05

Anne W. Sapp

Direct and Cross of Condemnee Business Evaluator ......................................................................... 1–72 06

Doug Gaskins and Leanne Gould

Direct and Cross of Business Valuation Experts ......................................................................................1–3 07

R. Matthew Reeves

Motion in Limine and Jury Charges for Use by Plaintiff -Condemnor .......................................... 1–66 08

Thomas L. Fitzgerald

Closing Argument and Condemnor’s Closing Argument, Part II .....................................................1–9 09

Richard N. Hubert and Paul H. Dunbar, III

Appendix:

The Institute of Continuing Legal Education in Georgia .........................................................................1

Georgia Mandatory CLE Fact Sheet ................................................................................................................4

Postface ......................................................................................................................................................................5

PRE-TRIAL MATTERS: MOTIONS IN LIMINE TO EXCLUDE EVIDENCE AND

MOTIONS FOR SANCTIONS AND TO COMPEL DISCOVERY IN

CONDEMNATION CASES

Melissa J. Perignat

Holt, Ney, Zatcoff , & Wasserman, LLP

Atlanta, Georgia

Elizabeth R. Story

Pursley Friese Torgrimson

Atlanta, Georgia

THE TRIAL OF AN EMINENT DOMAIN CASE FROM START TO FINISH


Pre-Trial Matters Motions in Limine to Exclude Evidence and

Motions for Sanctions and To Compel Discovery in Condemnation Cases

Melissa J. Perignat and Elizabeth R. Story

i

Pre-Trial Matters: Motions in Limine To Exclude Evidence and Motions for Sanctions and To Compel Discovery in Condemnation Cases

Melissa J. Perignat and Elizabeth R. Story Atlanta, Georgia

Table of Contents

I. Introduction .................................................................................................... 1

II. Motions in Limine in Condemnation Cases ........................................... 1

III. Motions To Compel Discovery and for Sanctions in Condemnation Cases ............................................................................................. 6

IV. Motions in Pursley City Department of Transportation v. Hubert Theater Group, Inc. ..................................................................... 10

a. Condemnor’s Motion in Limine To Exclude All Evidence of Consequential

Damages Arising From Impairment of Access. ........................................... 11

b. Condemnee’s Response to Condemnor’s Motion in Limine To Exclude All Evidence of Consequential Damages Arising From Impairment of Access. ..................................................................................................................... 20

c. Condemnor’s Motion To Compel Discovery and for Reasonable Expenses, Including Attorneys’ Fees . .......................................................................... 31

d. Condemnee’s Response in Opposition to Condemnor’s Motion To Compel Discovery and for Reasonable Expenses, Including Attorneys’ Fees ......... 32

Chapter 1i

1

2016 ICLE Eminent Domain Law Seminar

Pre-Trial Matters: Motions in Limine To Exclude Evidence and Motions for Sanctions and To Compel Discovery in Condemnation Cases

By Melissa J. Perignat and Elizabeth R. Story

I. Introduction Pre-trial matters matter, and they matter a lot. Indeed, an attorney’s entire

strategy and case structure in presenting a case to a jury is directly impacted by pre-trial

matters, such as motions in limine, discovery motions and motions for sanctions. From

day one of litigation, an attorney should be mindful of possible discovery contests and

keep track of irrelevant and troublesome evidence that should be excluded from trial.

This paper provides a summary of the general purposes and uses of motions in limine,

motions for sanctions and motions to compel discovery in civil litigation and the specific

uses and applications of such motions in condemnation cases. Additionally, the paper

includes two sample motions and responses respecting pre-trial matters in the mock

case of Pursley City Department of Transportation v. Hubert Theater Group, Inc., et al.

II. Motions in Limine in Condemnation Cases

The purpose of a motion in limine is to keep inadmissible evidence from the jury

and to prevent prejudicial questions and prejudicial statements from being made in the

presence of the jury. Dep't of Transp. v. Taylor, 264 Ga. 18 (1994) (citing Reno v. Reno,

249 Ga. 855 (1982)). Through a motion in limine, a party can obtain a pre-trial ruling

on the admissibility of evidence or a ruling prohibiting references to certain evidence.

Chapter 11 of 38

2

Dep’t. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 5 (1999). However, a motion in

limine is not the appropriate method to determine the sufficiency of evidence prior to

trial. Buck’s Service Station v. Dep’t of Transp., 191 Ga. App. 341 (1989).1

The trial court should grant a motion in limine seeking to exclude evidence only

“where it is clear that there are no circumstances under which the evidence under

scrutiny is likely to be admissible at trial, and the trial court must exercise great care

when granting a motion in limine excluding evidence. Id.; see also Gwinnett County v.

Howington, 280 Ga. App. 347 (2006) (irrelevant and therefore inadmissible evidence

should be excluded on a motion in limine).

In condemnation cases, motions in limine should be used to exclude evidence,

testimony and arguments relating to claims for compensation and damages which are

not recoverable under Georgia law and to exclude, evidence, testimony and arguments

which are not relevant or which are prejudicial to the condemnee’s recoverable

compensation and damages. Taylor, 264 Ga. 18; O.C.G.A. § 32-3 16.

Typically, motions in limine are filed before trial. A scheduling order or case

management order may set a deadline for filing motions in limine in advance of the

trial. If not, the parties can file motions in limine at any time before the trial

commences, even on the day of trial. If the circumstances warrant, motions in limine

may even be made during trial outside the presence of the jury before the objectionable

evidence is proffered or the prejudicial statements made.

The trial court may conduct a hearing and rule on the parties’ motions in limine

in advance of trial (e.g., weeks or months prior to trial), or the trial court may rule on

1 A motion for summary judgment or for directed verdict is the appropriate means to invoke a ruling as to the sufficiency of evidence. Buck’s Service Station, 191 Ga. App. at 341.

Chapter 12 of 38

3

the parties’ motions in limine minutes before the jury is brought in and trial begins.

Further, the trial court may reconsider and reverse its ruling on a pretrial motion in

limine as the trial progresses and evidence unfolds.

Because the trial court’s rulings on the parties’ motions in limine will dictate the

evidence and testimony that can be presented, it is important to ask the court early in

the litigation when the court intends to rule on evidentiary motions in limine. Further,

it is important for both condemnors and condemnees to be prepared in the event of an

unfavorable motion in limine ruling. More than a few times, a trial court ruling on a

motion in limine has required a party to completely rework its trial strategy, witness

testimony and compensation evidence on the eve of, or mere moments before, trial.

The following are some general motions in limine often filed by Condemnors:

• To exclude evidence regarding the price that Condemnor paid other

property owners affected by the project.

• To exclude evidence regarding the original appraisal prepared for the

Condemnor.

• To exclude testimony regarding the design and location of the road.

• To exclude testimony regarding damages occurring during the temporary

period of construction.

• To exclude testimony regarding damages resulting from the change in

traffic flow.

• To exclude testimony regarding damages resulting from circuity of travel.

• To exclude testimony and evidence regarding a vested right of interest in

the current placement of driveways or access points.

Chapter 13 of 38

4

• To exclude testimony and evidence concerning inconvenience caused by

construction.

• To exclude testimony and evidence concerning the inefficiency of the

project.

• To exclude evidence of bad faith by Condemnor in the acquisition of the

property.

• To exclude evidence of the necessity of the acquisition.

• To exclude evidence of the propriety or fairness of Condemnor’s use of the

power of eminent domain.

• To exclude evidence of any alternate locations for the project.

• To exclude evidence of settlement negotiations prior to or after the

condemnation case.

• To exclude evidence of appraisal or other expert witnesses retained by a

party but not called to testify at trial.

• To exclude evidence of the award of the special master.

• To exclude evidence of loss or damage attributable to the length of

litigation.

• To exclude evidence of speculative future uses of the property.

• To exclude evidence of claim for temporary loss of business.

The following are some general motions in limine often filed by Condemnees:

• To exclude evidence of the amount of Condemnor’s initial estimate of just

and adequate compensation deposited into the Court Registry.

Chapter 14 of 38

5

• To exclude evidence of Condemnor’s current financial condition or any

budget shortfall.

• To exclude evidence of the calculation of statutory prejudgment interest

and Condemnees’ entitlement to interest under O.C.G.A. § 32-3-19(c).

• To exclude any mention that the jury’s award of just and adequate

compensation will be paid for by the taxpayers.

• To exclude any evidence that Condemnee failed to mitigate its business

damage.

• To exclude all statements by any witness or party stating the conclusion

that the property is or is not “unique.”

• To exclude evidence of any purported duty or potential ability of

Condemnee to use areas taken for permanent easement for mitigation.

• To exclude evidence that the road project is justified by public safety or

transportation concerns.

• To exclude evidence that the road project is justified by a traffic study,

traffic analysis, safety study, accident or other report addressing the safety,

functionality or level of service of the existing road.

• To exclude evidence of property tax assessments and returns for the

property.

III. Motions To Compel Discovery and for Sanctions in Condemnation Cases

The Georgia Civil Practice Act, O.C.G.A. §§ 9-11-1, et seq., including all rules

relating to discovery, applies to condemnation proceedings. O.C.G.A. § 9-11-81; Dep’t of

Transp. v. Ridley, 244 Ga. 49 (1979). Interrogatories (O.C.G.A. § 9-11-33), requests for

Chapter 15 of 38

6

production of documents (O.C.G.A. § 9-11-34), and depositions (O.C.G.A. § 9-11-30) are

used to gather information from the opposing party and its experts in practically all

condemnation actions. Because the discovery rules apply, if a party or non-party to a

condemnation action fails to satisfy its discovery obligations (e.g., fails to respond to

interrogatories, refuses to appear for a deposition, or withholds relevant documents),

then the party propounding the discovery can utilize the court’s compulsory process to

compel discovery set forth in O.C.G.A. § 9-11-37.

Under O.C.G.A. § 9-11-37, a party may move for an order compelling discovery

upon reasonable notice to the other parties. Prior to filing a motion to compel, however,

the moving party must make a good faith effort to resolve the discovery issue with the

responding party, and, with the motion, the moving party must file a certificate

attesting that such good faith effort was made. Ga. Unif. Super. Ct. R. 6.4(B). Motions

to compel are properly filed in the court in which the condemnation action is pending;

however, motions to compel relating to depositions can be filed in the court in the

county where the deposition is being taken. O.C.G.A. § 9-11-37(a)(1).

Under O.C.G.A. § 9-11-37(a)(2), the discovering party may move for an order

compelling answers to interrogatories or compelling inspection of documents in

accordance with a request if the responding party fails to answer interrogatories or fails

to respond that inspection of documents will be permitted as requested. O.C.G.A.

§ 9-11-37(a)(2). With respect to depositions, the discovering party also may move for an

order compelling an answer to certain deposition questions if the responding party

refuses to answer them, the designation of an O.C.G.A. § 9-11-30(b)(6) representative

for deposition if the responding party refuses to identify its representative, or the

Chapter 16 of 38

7

appearance of an individual for deposition if the responding party refuses to show up for

deposition. O.C.G.A. § 9-11-37(a)(2).

For purposes of a motion to compel, an evasive or incomplete answer is treated as

a failure to answer. O.C.G.A. § 9-11-37(a)(3). Further, a responding party’s failure to act

with respect to depositions and discovery may not be excused on the ground that the

discovery sought is objectionable unless the party failing to act has applied for a

protective order under O.C.G.A. § 9-11-26(c). O.C.G.A. § 9-11-37(b)(2).

If the court grants a motion to compel, then after a hearing, the responding party

whose discovery conduct necessitated the motion or the party or the attorney or

advising such conduct, or both, must pay the moving party’s reasonable expenses,

including attorneys’ fees, incurred in obtaining the discovery order, unless the court

finds that the opposition to the motion was substantially justified or that other

circumstances make an award of expenses unjust. O.C.G.A. § 9-11-37(a)(4)(A).

Likewise, if the motion to compel is denied, then after a hearing, the moving party or its

advising attorney, or both, must pay the opposing party’s reasonable expenses,

including attorneys’ fees, incurred in opposing the motion, unless the court finds that

the making of the motion was substantially justified or that other circumstances make

an award of expenses unjust. O.C.G.A. § 9-11-37(a)(4)(B).

The court also may impose sanctions for discovery violations. O.C.G.A. § 9-11-

37(b). Sanctions can be imposed (i) if a party fails to comply with an order compelling

discovery, (ii) if a party fails to appear for its own deposition after receiving proper

notice, (iii) fails to serve answers or objections to interrogatories submitted

under O.C.G.A. § 9-11-33, after proper service of the interrogatories, or (iv) fails to serve

a written response to a request for inspection submitted under O.C.G.A. § 9-11-34, after

Chapter 17 of 38

8

proper service of the request. O.C.G.A. § § 9-11-37(b)(2) and 9-11-37(d)(1). Possible

sanctions include:

(A) An order that the matters regarding which the order compelling discovery was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; and

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

O.C.G.A. § 9-11-37(b)(2). With respect to depositions, sanctions may also include an

order treating as a contempt of court the failure to obey any orders except an order to

submit to a physical or mental examination. O.C.G.A. § 9-11-37(b)(2)(D) and (E).

In lieu of or in addition to any sanctions imposed by the court, the court also

must require a party failing to obey a discovery order or to respond to the discovery or

the attorney advising him, or both, to pay the reasonable expenses, including attorney's

fees, caused by the failure, unless the court finds that the failure was substantially

justified or that other circumstances make an award of expenses unjust. O.C.G.A. § 9-

11-37(b)(2).

Common discovery issues in condemnation actions which could culminate in a

motion to compel include:

• Failure or refusal to provide appraisal reports, including comparable sales.

• Failure or refusal to provide cost-to-cure or mitigation plans.

Chapter 18 of 38

9

• Failure or refusal to provide income statements, if claiming business damage.

• Failure or refusal to provide complete sets of project plans.

• Failure or refusal to provide tax returns.

• Failure or refusal to timely supplement discovery responses.

Although a harsh sanction, where a condemnee willfully fails to comply with a

discovery order, the trial court has discretion to dismiss the condemnee’s notice of

appeal. In Massengale v. Georgia Power Company, 153 Ga. App. 476 (1980), the

Georgia Court of Appeals upheld the trial court’s dismissal of a condemnee’s notice of

appeal because the condemnee filed responses to interrogatories eleven months after

the trial court’s order compelling the condemnee to respond and only after a motion for

sanctions had been filed. Id. at 478.

There do not appear to be any cases where the trial court has dismissed a

condemnor’s condemnation petition due to discovery abuses. However, in Department

of Transportation v. Livaditis, 129 Ga. App. 358 (1973), the trial court sanctioned the

Department for failure to produce certain project plans under a notice to produce by

excluding from trial the withheld project plans and all oral testimony regarding those

plans. Id. at. 360.

If sanctions are imposed, the most common sanction in condemnation cases (as

in most types of civil litigation) is an award to the prevailing party of expenses, including

attorneys’ fees, incurred in obtaining the discovery order.

Chapter 19 of 38

10

IV. Motions in Pursley City Department of Transportation v. Hubert Theater Group, Inc., et al., Superior Court, Wright County, State of Levy, Civil Action File No. 2016ICLE2

a. Condemnor’s Motion in Limine To Exclude All Evidence of Consequential

Damages Arising From Impairment of Access

b. Condemnee’s Response to Condemnor’s Motion in Limine To Exclude All Evidence of Consequential Damages Arising From Impairment of Access

c. Condemnor’s Motion To Compel Discovery and for Reasonable Expenses, Including Attorneys’ Fees

d. Condemnee’s Response in Opposition to Condemnor’s Motion To Compel Discovery and for Reasonable Expenses, Including Attorneys’ Fees

2 Georgia law applies in the State of Levy.

Chapter 110 of 38

11

SUPERIOR COURT OF WRIGHT COUNTY STATE OF LEVY

PURSLEY CITY DEPARTMENT OF TRANSPORTATION,

Condemnor,

v. HUBERT THEATER GROUP, INC., et al.,

Condemnees

)))))))) ) ))

CIVIL ACTION FILE NO. 2016-ICLE

CONDEMNOR’S MOTION IN LIMINE AND BRIEF IN SUPPORT THEREOF TO EXCLUDE ALL EVIDENCE OF CONSEQUENTIAL DAMAGES

ARISING FROM IMPAIRMENT OF ACCESS COMES NOW Condemnor Pursley City Department of Transportation

(“PCDOT”), by and through its undersigned counsel and hereby respectfully

requests that this Court grant Condemnor’s Motion in Limine and enter an order

excluding as evidence and instructing the Condemnees, Hubert Theater Group, Inc.

and Hubert Theater Properties, LLC (collectively “Hubert”), its counsel, and all

witnesses, not to mention, refer to, question concerning, or attempt to convey to the

jury in any manner, either directly or indirectly, any evidence or testimony

referring to any claim for consequential damages based on any alleged impact to the

ingress and egress to the subject property as a result of this condemnation action.

Chapter 111 of 38

12

Statement of the Case

This project involves a one-of-a-kind, technically advanced smart highway

that will provide vehicular access to over 1,600,000 automobiles per day to the very

heart of Pursley City. Pursley City residents and commuters currently suffer each

day from hours of agonizing traffic delays. After the completion of this project,

residents and commuters will enjoy a super exit that connects the new road with

three other superhighways, all of which will save them hours of their daily lives, as

the smart highway will immediately resolve the traffic delays within Pursley City.

In order for this smart highway to successfully operate, a multi-lane entrance

ramp must be installed on the property owned by Hubert (“Hubert Property”). The

Hubert Property consists of two tracts: (1) the western portion improved with the

Hubert Theater (“Theater Property”) and (2) the eastern portion improved as a

parking lot (“Parking Lot Property”). PCDOT is acquiring 17,600 square feet in

right of way and 7,250 square feet of permanent easement. Unfortunately, the

Hubert Theater sits within the new right of way, and as a result will have to be

razed. After earnest negotiations with Hubert were unsuccessful, PCDOT filed its

Condemnation Petition and Declaration of Taking on August 8, 2015, and paid just

and adequate compensation into the registry of the Court for the taking.

To the best of PCDOT’s knowledge, Hubert intends to introduce evidence at

the trial of this case suggesting that it is entitled to be awarded consequential

damages in this case as a result of the impact this condemnation action has had

upon the ingress and egress to the Parking Lot Property. Hubert’s claim is based on

Chapter 112 of 38

13

the median installed on Hubert Lane in front of the Parking Lot Property’s primary

driveway and the change of grade between Hubert Lane and the Parking Lot

Property. PCDOT believes that Hubert will argue and present evidence that the

installation of the median prevents cars from turning left into the Parking Lot

Property and that the grade change will negatively impact the physical access

between Hubert Lane and the parking lot.

Legal Argument A motion in limine is “properly granted when there is no circumstance under

which the evidence under scrutiny is likely to be admissible at trial.” Gwinnett

County v. Howington, 280 Ga. App. 347, 347 (2006). “Irrelevant evidence that does

not bear directly or indirectly on the questions being tried should be excluded.” Id.

Therefore, in a condemnation case, evidence should be excluded that is not relevant

to the claim of just and adequate compensation. See DOT v. Taylor, 264 Ga. 18

(1994). As set forth below, any reference to any claim for consequential damages

based on any alleged impact to the ingress and egress to the Parking Lot Property

as a result of this condemnation action should be considered irrelevant evidence.

1. The issue of the median is not an element of compensable damage and

therefore is not proper to be presented as evidence in this case.

The effect of the construction of a median on property is not an element of

compensable damage. Cobb Co. v. Princeton Assoc., 205 Ga. App. 72 (1992). See also

Chapter 113 of 38

14

Hadwin v. City of Savannah, 221 Ga. 148 (1965); Clark v. Clayton Co., 133 Ga. App.

171 (1974). Even when the installation of a median prohibits left turns in and out of

a property, the Court holds that such change is not a compensable damage:

Adjoining owners of property or operators of businesses on property adjoining a street or highway have no vested interest in the traffic pattern which controlling authorities may provide for the public street from time to time. If they suffer damage when the pattern is changed it is a damage suffered by members of the general public owning property or operating businesses adjacent to a street or highway, and for which there can be no recovery. The damage is not peculiar to the condemnees. [Cit.] The regulation of traffic is a governmental function. [Cit.] The changing of traffic patterns, prohibiting of left turns at stated places, and providing medians for separating northbound and southbound lanes of traffic (or eastbound and westbound) are matters which affect all of the public in the same manner. They are within the governmental authority of the state, county or city. It is the duty of the authority having jurisdiction over the highway or street to so control traffic and provide patterns for traffic as will best serve both those who travel and those who live or operate businesses along the street or highway, as will facilitate the traffic flow, and best afford traffic safety. If changes are required as the quantity of traffic increases, or as the nature of the neighborhood along the street or highway changes, these should be made and none has a vested interest in keeping the pattern continuously without change. Dougherty County v. Snelling, 132 Ga. App. 540 (1974) (reversed on other grounds).

PCDOT’s installation of a median is a traffic pattern change that is “suffered

by members of the general public owning property or operating businesses adjacent

to a street,” and not Hubert individually. Id. Therefore, because the median cannot

be an element of compensable damage, it would be improper to present as evidence

in this case.

Chapter 114 of 38

15

2. Access to the Parking Lot Property has not suffered impairment or

been substantially interfered with and therefore is not a proper issue to be

presented to the jury.

In order to determine whether general inconvenience of access to a public

road is compensable and a factor to be considered in determining consequential

damages to the remainder, it must first be determined whether the “inconvenience

is that which is shared by the public in general, which is not compensable, or that

which is special to the landowner, which is compensable. Taylor, 264 Ga. 18 (1994).

One whose right of access is “cut off or substantially interfered with has a special

property right.” MARTA v.Fountain, 256 Ga. 732 (1987). But, if the access is not

terminated or obstructed and the same access exists as it did before, the damage is

not special, even though it may be of a greater degree than the general public. Id. A

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

patterns is not an appropriate item of damage.” DOT v. Coley, 184 Ga. App. 206

(1987).

PCDOT anticipates that Hubert will argue that, in addition to the

interference caused by the placement of the median, the driveway will be impaired

by the grade change of Hubert Lane and such changes in the physical aspects of the

driveway cause consequential damages to the Parking Lot Property. The Court of

Appeals considered facts similar to the facts of this case in BIK Associates v. Troup

Co., Georgia, 236 Ga. App. 734 (1999). In BIK, the condemnee sought consequential

damages for a change in the physical aspects of the driveway alleging that the

Chapter 115 of 38

16

changes had a direct impact on the ingress and egress to and from the property. Id.

at 734-735. The Court of Appeals found that the condemnee’s driveway would

remain substantially in the same location and that although the grade changed, it

would still have substantially the same access. Id. at 735. The Court of Appeals

concluded that because the access was substantially the same, the access had not

been obstructed or terminated, and therefore was an inconvenience shared by the

public in general. Id. at 735.

The changes in the access on the Parking Lot Property may be of a greater

degree than the general public and involve a change in the grade, but such changes

do not rise to the level required to show a special property right.3 Therefore, Hubert

should not be allowed to present evidence of consequential damages caused by

changes to the access.

CONCLUSION

Based on the foregoing, any evidence or reference to any claim for

consequential damages based on any alleged impact to the ingress and egress to the

Parking Lot Property as a result of this condemnation action should be considered

irrelevant evidence and prejudicial to the jury’s determination as to the issue of just

and adequate compensation in this case. The prejudice this evidence would create

far outweighs any possibly probative value it may have. Further, the mention of

this subject matter before a jury would be so highly prejudicial to the Condemnor

3 Special property rights can include changes to the property such as installation of curbs that completely cut off access to the abutting road or prohibition of all vehicular traffic on a road abutting the property. See DOT v. Whitehead, 253 Ga. 150 (1984); Dougherty Co. v. Snelling, 132 Ga. App. 540 (1974)(reversed on other grounds); Dougherty Co. v. Hornsby, 213 Ga. App. 114 (1957)

Chapter 116 of 38

17

that a sustained objection and instruction to disregard would not overcome its

prejudicial effect.

Therefore, PCDOT respectfully requests that the Court exclude any evidence

or testimony by Hubert or its witnesses referring to any claim of consequential

damages to the remaining Parking Lot Property arising from impairment to access.

This 4th day of February, 2016.

PURSLEY & LEX LUTHOR, LLP By: /s/ Elizabeth R. Story Elizabeth R. Story

Levy Bar No. GFEDCBA Attorney for Pursley City DOT

1230 Hubert Lane Suite 1200 Pursley City, Levy 30309 (404) 876-4880 (telephone) (404) 876-4757 (telecopier)

Chapter 117 of 38

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing CONDEMNOR’S

MOTION IN LIMINE AND BRIEF IN SUPPORT THEREOF TO EXCLUDE ALL

EVIDENCE OF CONSEQUENTIAL DAMAGES ARISING FROM IMPAIRMENT

TO ACCESS by causing a true and correct copy of same to be sent by electronic mail

and to be deposited in the U.S. Mail, first-class postage prepaid, addressed as

follows:

Melissa J. Perignat, Esq. Hubert & Darkseid, LLP 100 Appletree Street Suite 1800 Pursley City, Levy 30309


/s/ Elizabeth R. Story Elizabeth R. Story Levy Bar No. GFEDCBA

Chapter 118 of 38

19



Condemnor,


Condemnees

)))))))) ) ))


CONDEMNEES’ BRIEF IN OPPOSITION TO CONDEMNOR’S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE OF

CONSEQUENTIAL DAMAGES ARISING FROM IMPAIRMENT OF ACCESS Condemnees, Hubert Theater Group, Inc. and Hubert Properties, LLC

(collectively “Hubert”), submit this brief in opposition to the motion in limine filed

by Condemnor, Pursley City Department of Transportation (“PCDOT”), seeking to

exclude all evidence at trial respecting Hubert’s consequential damages arising

from impairment of access.

Introduction

In this partial taking case, PCDOT has taken from Hubert (and the

community) the beloved, historic Hubert Theater building. In addition, PCDOT has

taken from Hubert land and easements along Appletree Street and Hubert Lane,

and has severely damaged Hubert’s parking lot land by limiting access on Hubert

Lane to right-in-right-out only, reducing the grade between the parking lot and

Chapter 119 of 38

20

Hubert Lane by 10 feet and steeply sloping the parking lot’s Hubert Lane driveway.

PCDOT is leaving Hubert with a smaller, inconvenient, unsafe and almost

completely inaccessible parking lot. Adding insult to injury, PCDOT filed the

Motion seeking to exclude from trial all evidence, testimony, argument and

innuendo of the significant consequential damages arising from the impairment of

access to the remainder of the parking lot property. Because evidence of

impairment of access is admissible where the property a public project interferes

with the owner’s access to a public road, and because Hubert’s experts have shown

that Hubert is suffering consequential damages of $1,000,001 as a result of

PCDOT’s interference with access to the parking lot remainder, PCDOT’s motion

must be denied, and Hubert must be entitled to present evidence of, and to recover,

consequential damages.

Statement of Relevant Facts Prior to the taking, Hubert owned approximately 2.3 acres of prime real

estate in the heart of Pursley City (“Hubert Property”). The western portion of the

Hubert Property was improved with the spectacular (dare say, supernatural)

Hubert Theater (“Theater Property”), and the eastern portion, an 800-space parking

lot (“Parking Lot Property”). The Parking Lot Property was incredibly convenient

for Hubert Theater patrons with a full-access driveway on Hubert Lane. The

Parking Lot Property’s Hubert Lane driveway was at grade with Hubert Lane, and

the driveway had a negligible slope. During Hubert Theater events, Hubert would

charge $25 per space and generally would fill all 800 spaces. The Parking Lot

Chapter 120 of 38

21

Property also was used for daily parking by people working around City Square.

Hubert charged daily rates of $30.00 per day or $600.00 per month for City Square

employees.

To construct its massive concrete jungle of a superhighway, PCDOT has

taken from Hubert portions of land for right of way and permanent slope easements

along the Parking Lot Property’s Appletree Street frontage and permanent slope

easements and a temporary driveway easement along the Parking Lot Property’s

Hubert Lane frontage. More than 100 parking spaces are lost because of this

taking. However, even more devastating than the loss of those parking spaces,

PDOT is installing a median along Hubert Lane in front of the Parking Lot

Property’s driveway and limiting access to the Parking Lot Property to a single

right-in-right-out only driveway. Further, to accommodate the new tunnel under

the City Square, Hubert Lane is being lowered 10 feet and the Hubert Lane

driveway will have a 20% (5:1) or greater slope (ridiculously steep for a commercial

driveway) after the superhighway project is complete.

After the taking, the remaining Parking Lot Property is practically worthless.

Not only will there be no Hubert Theater events to fill the spaces at the Parking Lot

Property, but because of its lack of accessibility and dangerously steep driveway,

people will not park at the Parking Lot Property for work or special events,

depriving Hubert of the significant revenue generated by the Parking Lot Property

prior to the taking. Hubert’s expert appraisers have estimated the consequential

Chapter 121 of 38

22

damages to the remainder of the Parking Lot Property, as a result of the partial

taking and impairment of access, to be $1,000,001 or more.

Legal Argument When a property owner’s access to a public road suffers interference as the

result of a public project, the measure of consequential damage is “any diminution

in the market value of the property by reason of such interference,” MARTA v.

Datry, 235 Ga. 568, 577 (1975), and the property owner has the right to present and

the jury must consider “all elements reasonably affecting value.” Wright v.

MARTA, 248 Ga. 372, 375 (1981). Because the Parking Lot Property’s access to

Hubert Lane has suffered substantial interference,4 Hubert may recover

compensation and Hubert has the right to introduce evidence of the interference

with access, including construction of the median on Hubert Lane. Id.

The elements establishing an impairment and loss of access include, but are

not limited to, PDOT’s installation of a median on Hubert Lane, limitation of the

Hubert Lane driveway to right-in-right-out only, reconfiguration of the slope of the

Parking Lot Property’s sole remaining access point to an unsafe, steep, steep slope,

and the circuity of travel created by the taking and the superhighway project. See

Dep’t of Transp. v. Whitehead, 253 Ga. 150, 151-152 (1984). Contrary to PDOT’s

contention, Hubert has the right to and must be permitted to present evidence of all

4 Although PCDOT may contest whether Hubert’s access has suffered substantial interference, Hubert has the right to present evidence on the issue, and it should be left up to the jury to decide whether such a substantial interference has occurred. Dekalb County v. Glaze, 189 Ga. App. 1, 2 (1988).

Chapter 122 of 38

23

of these elements at trial. Richmond Co. v. 0.153 acres of land, 208 Ga. App. 208

(1993).

In Whitehead, the Georgia Supreme Court held that evidence of

inconvenience and circuity of travel, like the inconvenience caused by the

installation of a median, is admissible when the taking itself interferes with the

property owner’s access to his remaining property. Whitehead, 253 Ga. at 151-152.

Thus, even though a property owner generally is not entitled to compensation based

solely on the inconvenience and circuity of traffic caused by the installation of a

median, Clark v. Clayton County, 133 Ga. App. 171 (1974), where such

inconvenience and circuity of traffic is coupled with the deprivation of or

interference with the property owner’s access to his remaining property, evidence of

the inconvenience and circuity of traffic is admissible and must be considered by the

jury as an element of consequential damage. Whitehead, 253 Ga. at 151-152.

Hubert is not, as PCDOT contends, seeking consequential damages simply

because a median is being installed and the traffic pattern is being changed on

Hubert Lane. Instead, Hubert is seeking consequential damages because Hubert’s

access to the remaining Parking Lot Property has suffered substantial impairment.

The Parking Lot Property’s access point on Hubert Lane has been significantly

limited and impaired. Indeed, with a terribly steep slope and limited access, the

Hubert Lane driveway will be unsafe for commercial use in the after condition.

Accordingly, because Hubert’s access has been impaired, Hubert is entitled to

present evidence of the additional inconvenience or circuity of travel resulting from

Chapter 123 of 38

24

the installation of the median on Hubert Lane as part of the framework of evidence

showing the access impairment caused by the taking itself. Whitehead, 253 Ga. at

153.

PCDOT relies on the inapposite case of Dougherty v. Snelling, 132 Ga. App.

540 (1974), to support its contention that Hubert should not be allowed to introduce

evidence respecting the median being installed on Hubert Lane. In Dougherty, the

condemnees attempted to introduce evidence that the property suffered damages

because the condemnor, PCDOT, could, at some future time, prohibit left turns

across the front of the property. Id. at 543. The taking in Dougherty did not

actually impact property access nor was there any physical change to or taking of

the property affecting access. Id. at 544. As a result, the Georgia Court of Appeals

held that, because any damage was not “peculiar” or special to the condemnees, the

condemnee could not recover damages and “[e]vidence concerning a possible or

prospective change in the traffic pattern which may be made at some future time,

being relative to a prospective governmental action which may or may not take

place, should have been excluded on objection.” Id.

Both the facts and the holding in Dougherty make it inapposite. First, in

Dougherty, there was no physical interference with condemnees’ access. Id. at 544.

To use the Court’s example, there were no curbs installed preventing access to the

property. Id. Here, unlike in Dougherty, there is a physical interference with

Hubert’s current access. The slope of the Hubert Lane driveway is being steepened

significantly, creating conditions that will cause vehicles to bottom out when exiting

Chapter 124 of 38

25

the Parking Lot Property onto Hubert Lane and creating dangerous conditions for

vehicles when entering and exiting the Parking Lot Property. The physical changes

to the Parking Lot Property’s Hubert Lane driveway make it unusable by the

public, as if PCDOT had constructed a curb blocking that driveway.

Second, unlike the condemnee in Dougherty, Hubert will not attempt to

introduce evidence of some future act by PCDOT that might someday affect traffic

patterns in front of the Parking Lot Property. Instead, Hubert will offer evidence

showing the details of PCDOT’s design of the instant superhighway project, and

those details reflect PCDOT’s actual anticipated construction of the instant

superhighway project.

Finally, the damage suffered by the condemnees in Dougherty was not

special or different in kind from the damage suffered by the general public. Here,

the damage suffered by Hubert is special and specific to Hubert. A parking lot is

worthless if vehicles will not or cannot park there. The general public is not

suffering a total destruction of the current use of its property; only Hubert is

suffering that loss.

Dougherty does not control this case and, under Whitehead, Hubert is

entitled to present evidence of the installation of the median as part of the

framework of evidence supporting its claim for consequential damages. Whitehead,

253 Ga. at 151-53.

In addition to seeking to exclude evidence respecting the median, PCDOT

further argues that Hubert should not be allowed to present evidence of the

Chapter 125 of 38

26

consequential damages caused by the changes to the Hubert Lane driveway.

PCDOT contends that BIK Associates v. Troup County, 236 Ga. App. 734, 735

(1999), “is extremely similar” to this case and, under BIK Associates, such evidence

should be excluded.

In BIK Associates, unlike the case at bar, the condemnee had substantially

the same access at the property both before and after the taking. Id. at 735. The

condemnee in BIK Associates apparently could not show that specific modifications

of its driveways prevented, interfered with or deprived condemnee of any type of

access to the remaining property; rather, the condemnee sought only to present

evidence of changes in traffic patterns, traffic volume and circuity of travel. Id.

Unlike the BIK Associates condemnee, Hubert has suffered a substantial

impairment of its access. Vehicles will no longer be able to turn left into or out of

the Parking Lot Property. Instead, all exiting traffic will be forced to travel under

City Square via the new tunnel. Further, PCDOT’s modifications to the Hubert

Lane driveway will make it unusable or, at the very least, incredibly unsafe for the

public. Hubert is permitted to present evidence of the consequential damages

caused by PCDOT’s changes to the Hubert Lane driveway. See State Hwy. Dept. v.

Irvin, 100 Ga. App. 624 (1959) (consequential damages includes value losses

resulting from interference with the owner’s use and enjoyment of the land

remaining after the taking).

Richmond Co. v. 0.153 acres of land, 208 Ga. App. 208 (1993), and Dep’t of

Transp. v. Wallace Enters., 234 Ga. App. 1 (1998), direct the admissibility of

Chapter 126 of 38

27

Hubert’s evidence of consequential damages caused by impairment of access. In

Richmond Co., the condemnor took a portion of a gasoline station and convenience

store property and, in connection with the partial taking, relocated the property’s

driveway curb cuts. Id. at 208-09. Even though the condemnees in Richmond Co.

did not lose any curb cuts, because the relocated curb cuts made ingress and egress

at the property more difficult, the condemnees were allowed to present evidence of

and to recover compensation for consequential damages caused by impairment of

access. Id.

Additionally, in Wallace Enterprises, the condemnee , the owner and operator

of a gasoline station and convenience store, was permitted to introduce evidence of

damages caused by the permanent impairment of access to the site, permanent

impairment of traffic flow within the site, reduction in capacity for handling

multiple gasoline customers, insufficiency of parking and inadequacy of visibility

from the road. Id. at 1-2. In Wallace Enterprises, the condemnee’s single pre-

taking access was changed to dual access, yet the condemnee properly was allowed

to present evidence of consequential damages.

Like the condemnees in Richmond Co. and Wallace Enters., Hubert is

permitted to present evidence of the consequential damages caused by impairment

of the property’s Hubert Lane access. The changes to the property’s Hubert Lane

driveway and the installation of the median on Hubert Lane both are elements

contributing to Hubert’s consequential damages; therefore, Hubert is entitled to

introduce evidence of these elements at trial. Whitehead, 253 Ga. at 151-52.

Chapter 127 of 38

28

Conclusion Hubert respectfully requests that the Court deny PCDOT’s motion in limine,

and allow evidence respecting consequential damages to the remaining Parking Lot

Property arising from impairment to access.

This 4th day of February, 2016. HUBERT & DARKSEID, LLP 100 Appletree Street By: /s/ Melissa J. Perignat Suite 1800 Melissa J. Perignat Pursley City, Levy Levy Bar No. ABCDEFG (770) 956-9600 (telephone) (770) 956-1490 (telecopier) Attorneys for Condemnees

Chapter 128 of 38

29


I hereby certify that I have this day served the foregoing Condemnee’s Brief

in Opposition to Condemnor’s Motion in Limine To Exclude Evidence of

Consequential Damages Arising From Impairment of Access by causing a true and

correct copy of same to be sent by electronic mail and to be deposited in the U.S.

Mail, first-class postage prepaid, addressed as follows:

Elizabeth R. Story, Esq. Pursley & Lex Luthor, LLP 1230 Hubert Lane Suite 1200 Pursley City, Levy 30339


/s/ Melissa J. Perignat Melissa J. Perignat Levy Bar No. ABCDEFG

Chapter 129 of 38

30



Condemnor,


Condemnees

)))))))) ) ))


CONDEMNOR’S MOTION TO COMPEL DISCOVERY AND FOR REASONABLE EXPENSES, INCLUDING ATTORNEYS’ FEES

COMES NOW Condemnor Pursley City Department of Transportation

(PCDOT), by and through its undersigned counsel and hereby respectfully requests

that this Court compel Condemnees, Hubert Theater Group, Inc. and Hubert

Theater Properties, LLC (collectively “Hubert”), to further respond to Requests No.

15, 16, and 17 of PCDOT’s First Continuing Interrogatories and Request for

Production of Documents (“Discovery Requests”) on the grounds set forth below in

support of this Motion to Compel. PCDOT also submits herewith a Statement of

Counsel in accordance with Uniform Superior Court Rule 6.4(B), attached hereto as

Exhibit A, certifying that counsel for PCDOT has conferred with counsel for

Condemnees and has made a good faith effort to resolve by agreement the issues

raised by this Motion to Compel and that said effort has failed.

[SEE HANDOUT FOR COMPLETE MOTION]

Chapter 130 of 38

31



Condemnor,


Condemnees

)))))))) ) ))


CONDEMNEE’S BRIEF IN OPPOSITION TO CONDEMNOR’S MOTION TO COMPEL DISCOVERY AND FOR REASONABLE EXPENSES, INCLUDING

ATTORNEYS’ FEES Condemnees, Hubert Theater Group, Inc. and Hubert Properties, LLC

(collectively “Hubert”), submit this Brief in opposition to the Motion To Compel

Discovery and for Reasonable Expenses, Including Attorneys’ Fees (“Motion”) filed

by Condemnor, Pursley City Department of Transportation (“PCDOT”). Because

the information and documents being sought by PCDOT are completely irrelevant

to the issue of just and adequate compensation, Hubert respectfully requests that

the Court deny the Motion and award Hubert its reasonable expenses, including

attorneys’ fees, for having to respond to the Motion.

Introduction

This is a partial taking condemnation case. The sole issue to be determined

in this case is the amount of just and adequate compensation and damages that

Chapter 131 of 38

32

Hubert is entitled to receive for PCDOT’s partial taking of Hubert’s theater and

parking lot property for the construction of a superhighway. Despite this being the

sole triable issue, PCDOT is trying to obtain from Hubert, in discovery, information

relating to the Hubert Theater’s insurance policies, insurance claims and liability

settlements with patrons and others. Such information and documents are

completely irrelevant to the issue of Hubert’s just and adequate compensation.

Even if incidents tend to erupt between patrons (especially patrons who are

eminent domain attorneys), such incidents do not affect the pre-taking value of the

Hubert Theater and parking lot property or Hubert’s consequential damages and,

therefore, are not subject to discovery.

Statement of Relevant Facts

Hubert’s property subject to this condemnation action is located in the heart

of Pursley City Square and is improved with the famous and historic Hubert

Theater. The Hubert Theater was built in or around 1866, shortly after the Civil

War, and seats 2650 people. The Hubert Theater is the archetypal building in the

City Square, with most of the other buildings around the City Square having copied

its design and motif. In addition to standard building materials, other unique

materials were incorporated into the building structure. One of those materials is

kryptonite.

The kryptonite embedded in the walls and foundation of the Hubert Theater

magically enhances the powers and abilities of theater patrons. While attending

theater productions, some partons believe that they can fly, bend steel with their

Chapter 132 of 38

33

bare hands, leap tall buildings in a single bound, run faster than locomotives and

change the course of mighty rivers. The public’s fascination with kryptonite and the

magical effects of kryptonite have increased and sustained theater attendance, and

consequently theater revenues, for more than 90 years.

As with all theaters and public gathering places, accidents happen and

Hubert has, among other insurance policies, general liability insurance to cover

most accidents and other incidents. The terms of Hubert’s insurance policies are

highly confidential and proprietary and include coverage and policy terms for

Hubert’s other enterprises.

Statement of Discovery Proceedings

On August 8, 2015, PCDOT filed its Petition for Condemnation and

Declaration of Taking (collectively “Petition”) taking from Hubert land for right-of-

way and easements and the Hubert Theater building for purposes of construction of

a superhighway entrance ramp. On September 11, 2015, Hubert filed a notice of

appeal in response to the Petition. On October 1, 2015, PCDOT served Hubert with

PCDOT’s First Continuing Interrogatories and Request for Production of

Documents (“Discovery Requests”). On November 2, 2015, Hubert served responses

to the Discovery Requests. In its responses, Hubert raised objections to PCDOT’s

requests for documents relating to Hubert Theater’s insurance policies, insurance

claims and settlement payments arising from incidents at Hubert Theater on the

grounds that those documents are not relevant, are proprietary and are being

sought solely for the purpose of harassment.

Chapter 133 of 38

34

After receiving Hubert’s responses, PCDOT sent a letter to Hubert

suggesting that Hubert’s responses to the Discovery Requests were deficient and

insufficient and demanding that Hubert provide information and documents

relating to insurance policies, liability claims and liability settlements.

Subsequently, PCDOT’s attorneys and Hubert’s attorneys met in person at the

Hubert Theater in a good faith effort to resolve the issues respecting Hubert’s

responses to the Discovery Requests. The meeting, or more accurately, the mortal

combat, did not resolve the discovery matter. After getting out of the hospital,

PCDOT’s attorney filed the Motion.

Disputed Discovery Requests

PCDOT’s Request for Production No. 15: All insurance policies you have had on the subject property over the last 10 years. Hubert’s Response: Hubert objects to Request for Production No. 15 on the grounds that it is overly broad, unduly burdensome and propounded solely for the purpose of harassment. Hubert further objects to Request for Production No. 15 because it seeks proprietary information not reasonably calculated to lead to the discovery of admissible evidence on the sole issue to be decided in this action -- the just and adequate compensation due to Hubert for the partial taking of and consequential damages to its property and interests. PCDOT’s Request for Production No. 16: All documents which relate to any insurance claim made against Condemnees by any employee, guest, or patron of the Hubert Theater. Hubert’s Response: See response to Request for Production No. 15.

Chapter 134 of 38

35

PCDOT’s Request for Production No. 17: All documents concerning, evidencing or reflecting any amount paid by Condemnees, whether in litigation or prior to litigation, to settle a claim against Condemnees as a result of an accident, insult, bodily injury or property damage at the Hubert Theater. Hubert’s Response: See response to Request for Production No. 15.

Legal Argument

“Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery ....” O.C.G.A. § 9-11-26(b)

(emphasis added); Mincey v. Georgia Dept. of Cmty. Affairs, 308 Ga. App. 740, 744-

45 (2011). Furthermore, the trial court has wide discretion in entering orders

permitting or preventing the use of discovery which is oppressive, unreasonable,

unduly burdensome or expensive, harassing, harsh, insulting, annoying,

embarrassing, incriminating, or directed to wholly irrelevant and immaterial or

privileged matters or as to matter concerning which full information is already at

hand. Sechler Family P'ship v. Prime Grp., Inc., 255 Ga. App. 854, 857 (2002).

The sole issue for trial in this case is the amount of just and adequate

compensation and consequential damages payable to Hubert for PCDOT’s taking.

O.C.G.A. § 32-3-16. The information and documents that PCDOT is seeking from

Hubert in the Motion are completely irrelevant to that sole issue. Moreover,

PCDOT is seeking the proprietary documents solely for the purpose of harassment

Chapter 135 of 38

36

and embarrassment.5

Desperate to diminish the actual value of the Hubert Theater (which PCDOT

is unabashedly destroying), PCDOT has invented the diabolical theory that the

insurance premiums paid for Hubert Theater are relevant to the value of the

Hubert Theater building, and that claims against Hubert and settlements paid by

Hubert relating to incidents and injuries occurring at Hubert Theater negatively

impact the value of the Hubert Theater. PCDOT’s theory (in addition to being evil)

is absurd, and PCDOT should not be allowed to obtain from Hubert information and

documents relating to these matters. Indeed, Hubert has been an open book with

respect to the revenues and operations of the Hubert Theater. Hubert is not

required to provide PCDOT irrelevant insurance information and personal

information respecting patrons.

Further, the Court should, after opportunity for hearing, require PCDOT to

pay Hubert’s reasonable expenses incurred in opposing this Motion because the

Motion was not substantially justified or that other circumstances make an award

of expenses unjust. O.C.G.A. § 9-11-37(a)(4)(A).

Conclusion

PCDOT’s Motion has no merit. Hubert respectfully requests that the Court

deny PCDOT’s Motion, order that Hubert is not required to provide any of the

information or documents requested in PCDOT’s Request for Production Nos. 15, 16

5 PCDOT is aware that one of the partners at Hubert & Darkseid, LLP, Scott Jacobson (a/k/a Brainiac) was injured in a confrontation with other patrons while attending the production of “Wicked.” Upon information and belief, PCDOT is seeking insurance claim information to obtain the gory details of that incident.

Chapter 136 of 38

37

and 17, and award Hubert its litigation expenses, including attorneys’ fees, incurred

in opposing the Motion.

This 4th day of February, 2016. HUBERT & DARKSEID, LLP 100 Appletree Street By: /s/Melissa J. Perignat Suite 1800 Melissa J. Perignat Pursley City, Levy Levy Bar No. ABCDEFG (770) 956-9600 (telephone) (770) 956-1490 (telecopier) Attorneys for Condemnees

Chapter 137 of 38


I hereby certify that I have this day served the foregoing Condemnee’s Brief

in Opposition to Condemnor’s Motion To Compel Discovery and For Reasonable

Expenses, Including Attorneys’ Fees by causing a true and correct copy of same to

be sent by electronic mail and to be deposited in the U.S. Mail, first-class postage

prepaid, addressed as follows:

Elizabeth R. Story, Esq. Pursley & Lex Luthor, LLP 1230 Hubert Lane Suite 1200 Pursley City, Levy 30339


/s/ Melissa J. Perignat Melissa J. Perignat Levy Bar No. ABCDEFG

Chapter 138 of 38

OPENING

Kenneth W. Carpenter

Zachary & Seagraves

Decatur, Georgia


The Trial of An Eminent Domain Case From Start to Finish February 25, 2016

9:10 OPENING – KENNETH W. CARPENTER

OPENING STATEMENT – Hit ‘Em With Your Best Shot

For trial lawyers and especially eminent domain trial lawyers the first 30 seconds of your

opening statement may be the most important time during your entire jury trial, because this is

the time that jurors are willing to listen to you. Do not squander this valuable time. If you don’t

capture the jurors’ attention in the first moments of your opening statement, you run the risk of

being tuned out. It is, therefore, most important to carefully craft the first minute of your opening

statement to grab the attention and interest of the jurors at the time.

TWO OPENING STATEMENTS – Same Facts – Different Results

One of the most famous cases of the 20th century, the murder trial of O.J. Simpson and

the subsequent civil trial, produced very different 1st moments of opening statements.

Look at the first 144 words of the prosecutor’s opening statement (about one minute):

Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family and to you, ladies and gentlemen of the jury, good morning. I think it’s fair to say that I have the toughest job in town today except for the job that you have. Your job may just be a little bit tougher. It’s your job – like my job, we both have a central focus, a single objective, and that objective is justice obviously. It’s going to be a long trial and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you’re making by being sequestered. We understand that can be difficult.

The first words out of the prosecutor’s mouth does not grab your attention or make you

look forward to learning more about the case. The prosecutor does make it clear that the jurors

are in for a tough and painful job of considering the evidence and that their decision will be

difficult. The first impression of the jurors must have been that the prosecutor does not have a

good case that will persuade us to find Mr. Simpson guilty.

Chapter 21 of 4

Compare that example with the first one minute of the opening statement given in the

civil trial:

On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, down to bed. She filled her bathtub with water. She lit some candles, began to get ready to take a bath and relax for the evening. Nicole then called the restaurant and asked to speak to a friendly young waiter there. Nicole asked this young waiter if he would be kind enough to drop her mother’s glasses off. The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey. The young man’s name was Ron Goldman. He was 25 years old. With the glasses in hand, Ron walked out of the restaurant, walked the few minutes to his apartment nearby, to change. He left the restaurant at 9:50 p.m.

Based on the exact same facts the civil trial attorney comes out of the box with his best

shot. He grabs the jurors’ attention and makes them want to hear more of the story. He doesn’t

waste his first important moments with the jury reintroducing himself, telling them how a trial

works or thanking them for their service.

During the entire trial, the jurors will never be more interested in what you have to say

than during the first moments of your opening statement. Remember every case is a story. No

matter how mundane you feel your case may be, it is a case of first impression to the jury. They

are eager at this moment for you to tell them the case story.

Many attorneys (probably most of us) have wasted the first moments of their opening

statement with empty phrases like these:

• “This is what we lawyers call an opening statement…”

• “I appreciate the time and the attention that I know you will devote to this case

today…”

• “Opening statement is our chance to tell you what the evidence will show…”

• “My name is James Minister, and it’s my privilege to represent Kyle Lauten…”

• “An opening statement is like…

---a roadmap…”

---a recipe…”

---the table of contents to a book…”

---the cover of a jigsaw puzzle box…”

• “Jury service is an honorable tradition, and I want to thank you for taking

time out of your busy schedules to serve on this jury…”

Chapter 22 of 4

• “Opening statement is my chance to show you how the pieces of the

puzzle fit together…”

• “Before I begin let me remind you that what Mr. Wadsworth says is not

evidence, and what I say isn’t evidence, either…”

None of these statements grab your attention, compel you to listen to the rest of the

case or persuade you to find in favor of your client. During your opening statement and

throughout the trial you will be competing for the attention of the jurors. Most jurors wish they

were somewhere else. They are wondering how long the trial will be, what’s happening at work

while they are gone, will my husband remember to pick up the kids from school, and a multitude

of random thoughts. It is essential that the first words out of your mouth are a significant part of

your case, rather than reintroducing yourself or telling them how much you appreciate their

sacrifice for being there.

Elliott Wilcox who publishes Trial Tips Newsletter suggests three quick and easy

guidelines for things not to say in the initial moments of your opening statement:

1. Don’t Introduce Yourself (Again) When the trial began, the judge told the jurors who you were. Then you probably introduced yourself again during jury selection. Why would they want to hear you talk about yourself again during opening statement? Your client’s story is the star of the case, not you. When the trial is over, the only thing that will matter is whether or not they see (and believe) the story of your client. So don’t waste any time talking about yourself during opening statement – you’re not that important. 2. Don’t Suck Up

Another common mistake is the gratuitous “thank you” designed to ingratiate you with the jury:

• “Thank you so much for being here…” • “My client and I really wanted to thank you for performing your civic duty today…” • “Jury duty is a special privilege and the most sacred of your citizenship duties…” • “I appreciate the time and attention that I know you will devote to this case

today…” • “Jury service is an honorable tradition and I want to thank you for taking time out

of your busy schedules to serve on this jury…” The biggest problem with these type of statements is that they’re often insincere. Too many lawyers attempt to carry the jury’s favor with hollow praise. This tactic rarely works, because

Chapter 23 of 4

jurors easily see through the insincerity. There’s nothing wrong with (sincerely) thanking jurors for their service, but wait to express your gratitude until sometime later during your opening.

3. Don’t Describe How an Opening Statement Works Some lawyers begin by telling the jurors what an opening statement is:

• “An opening statement is my chance to outline for you what the evidence will show…”

• “This is my chance to show you how the pieces of the puzzle fit together…” • “An opening statement is like a recipe for a cake…” • “This is what we attorneys call an opening statement…”

Thanks to the countless legal thrillers and jury trials on TV, your jurors have more than a passing familiarity with the legal system, so there’s no need to describe how a trial works or how an opening statement works. Don’t bog the jurors down with this information. Besides, none of that information helps the jurors see the events that led up to trial or shows why your client deserves to win. Remember: These first few moments are your best chance for grabbing the jury’s attention and getting them to listen to you. Don’t squander the opportunity on something that won’t help you win your case. Give them a reason to listen to you within the first 15-20 seconds, and your jurors will be hooked for the rest of your opening statement!

Sources:

Miller & Zois, LLC “6 Sample Winning Opening Statements”, millerandzois.com/sampleopeningstatements.htm. Opening Statement – Chapter 4. The Trial Process: Law, Tactics and Ethics, Published by Versacomp Elliott Wilcox. Opening Statement Article appearing in Trial Tips Newsletter. To receive free subscription sign up at TrialTheatre.com

Chapter 24 of 4

MATERIALS WERE NOT SUBMITTED FOR THIS

PRESENTATION AT THE TIME OF PRINTING/DUPLICATION

William A. White

Attorney at Law

McDonough, Georgia

Warren R. Power

Power-Jaugstetter

McDonough, Georgia

Kenneth Cantrell

Valbridge Property Advisors

Atlanta, Georgia


Materials Were Not Submitted for This Presentation at the Time of Printing/Duplication

Notes:

Notes PagesChapter 3

DIRECT AND CROSS OF ENGINEER

Andrea C. Jones

The Galloway Law Group, LLC

Atlanta, Georgia

Robert W. Diggs

Weiner, Yancey, Dempsey & Diggs, LLP

Atlanta, Georgia


Chapter 4i

Chapter 41 of 15

Chapter 42 of 15

Chapter 43 of 15

Chapter 44 of 15

Chapter 45 of 15

Chapter 46 of 15

Chapter 47 of 15

Chapter 48 of 15

Chapter 49 of 15

Chapter 410 of 15

Chapter 411 of 15

Chapter 412 of 15

Chapter 413 of 15

Chapter 414 of 15

Chapter 415 of 15

EMINENT DOMAIN CASE LAW UPDATE

Anne W. Sapp

Anne W. Sapp, P.C.

Atlanta, Georgia


EMINENT DOMAIN

CASE LAW UPDATE

Anne W. Sapp Anne W. Sapp, P.C.

Atlanta, Georgia


TABLE OF CONTENTS

Land USA, LLC v. Georgia Power Company, 297 Ga. 237 (June 1, 2015)……...….. 1 Evans, et.al. v. Department of Transportation, 331 Ga. App. 313 (March 19, 2015); Cert. Denied ………………………..……………………………………...…………..……… 3 White, et. al. v. The Ringgold Telephone Company, 334 Ga. App. 325 (November 4, 2015); Cert applied for ..………………………….…………………………………………. 5 Fincher Road Investments, LLLP v. City of Canton, Georgia, 334 Ga. App. 502 (November 13, 201); Cert. applied for ………………………………………………........ 6 Earl’s Pearls, LLC, et. al. v. Cobb County, 334 Ga. App. 689 (November 18, 2015) …………………………………………………………………………………………...………. 8

Chapter 5i


Anne W. Sapp, P.C. Atlanta, Georgia

SUPREME COURT DECISIONS

LAND USA, LLC v. GEORGIA POWER COMPANY, 297 Ga. 237 (June 1, 2015). Issues: Quiet Title, Trespass and Ejectment

The property owner filed suit against Georgia Power Company (“Georgia Power”)

for quiet title, trespass, and ejectment, challenging the validity of a Georgia Power

easement. L.J. Fuller (“Fuller”) originally owned the property and was negotiating with

Georgia Power for a utility easement. Fuller was behind on his taxes, and during the

negotiation process, the property was sold at a tax sale to Investga. During the

redemption period, Georgia Power filed a condemnation action against the property, but

dismissed the condemnation action when Fuller granted them the easement. No

interested parties redeemed the property, and Investga sold the property to Land USA.

Land USA sued Georgia Power alleging that the easement Georgia Power obtained

from Fuller after he had already lost the property to a tax sale became a nullity when the

property was not redeemed after Investga properly invoked the state barment statutes

set forth in O.C.G.A. § 48-4-45.

Although Fuller retained possession of the property, he lacked a sufficient

interest therein to grant Georgia Power the perpetual, express easement it sought.

Therefore, when no party redeemed the property within the applicable period, the right

of redemption was foreclosed and fee simple title to the property vested in Investga.

Chapter 51 of 9

Therefore, the easement Georgia Power obtained from the landowner became a nullity

when the property was not redeemed after a buyer properly invoked the state barment

statutes.

Additionally, the Court of Appeals reversed the Trial Court finding that Georgia

Power’s electric line did constitute a continuing trespass for which Land USA would be

entitle to seek damages. To the extent a building prohibition was required on portions of

the property due to the presence of the power line, it impinged on the owner's use and

enjoyment of the property and created an additional servitude for which owner had

standing to seek damages. Therefore, the existence of the power line over the property

coupled with any attempt by the power company following foreclosure of the right to

redemption to restrict or otherwise interfere with the new owner's use and enjoyment of

the property due to the proximity of the electric line would provide the new owner with a

cause of action for trespass.

Finally, the Court concluded that Land USA’s ejectment claim against Georgia

Power failed as a matter of law. A public utility company has the right to acquire land

necessary for its corporate purpose by purchase, by consent of the landowner, or by

condemnation. If the land is taken without the landowner's consent and without

condemnation, a right of action accrues to the landowner against the company.

However, where an existing power line has become a necessary and constituent part of

the utility's service to the public, the landowner is estopped from recovering the land in

ejectment or from enjoining its use for the service and is limited to pursuing an

appropriate action in damages.

Chapter 52 of 9

COURT OF APPEALS DECISIONS

EVANS et al. v. DEPARTMENT OF TRANSPORTATION, 331 Ga. App. 313 (March 19, 2015); Writ of Certiorari denied. Issue: Value subterranean mineral rights The Department of Transportation (“DOT”) condemned property located with the

City of Gordon, Georgia that contained subterranean deposits of kaolin and was zoned

agricultural. Under the zoning ordinance, mining was not permitted in an area zoned

agricultural absent a special exception. No exception had been granted on the subject

property. The Court of Appeals found that the trial court did not err in denying the

condemnees' motion in limine, because zoning considerations were relevant and

material to the jury's determination of what constituted just and adequate compensation

in the instant action involving mineral deposits.

The sole issue to be determined in a condemnation matter is the just and

adequate compensation due for property taken. Generally, just and adequate

compensation is the fair market value of the condemned property at the time of taking.

Fair market value is defined as the price that 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. One of the elements

that reasonably may affect the value of the condemned property and should be

considered by the jury is the presence of mineral deposits. But it is also well established

that in determining what constitutes just and adequate compensation, the jury may

consider existing zoning and possible or probable future zoning changes which are

sufficiently likely to have an appreciable influence upon the present market value" of the

Chapter 53 of 9

condemned property. Zoning considerations are relevant and material to a jury's

determination of what constitutes just and adequate compensation to the condemnee in

cases involving mineral deposits. Therefore, the trial court did not abuse its discretion

in denying the condemnees' motion in limine and allowing evidence and argument

regarding the city's zoning ordinance and the reasonable probability of a special

exception being granted for kaolin mining, as the testimony was predicated on the

expert's knowledge of the current zoning status and an investigation into the property

and the surrounding areas.

Additionally, while an expert may not render an opinion that is wholly speculative

or conjectural, the fact that the expert's opinion is based partially on speculation goes to

its weight rather than its admissibility. In this case, the DOT’s expert real estate

appraisers may have speculated to some degree in reaching their conclusions

regarding the likelihood that a special exception would be granted for kaolin mining;

however, that factor went to the weight of their testimony rather than its admissibility.

Finally, a jury charge must be adjusted to the evidence and a correct statement

of the applicable law. However, charges cannot be construed in isolation, and on

appellate review, jury charges must be read and considered as a whole in determining

whether the charge contained error. The trial court correctly charged the jury that it

should consider the mineral deposits as part of its valuation of the condemned property,

irrespective of whether the condemnees had mined the property or planned to mine it at

the time of the taking. In this case, the jury charges on mineral deposits and zoning

considerations, when construed together, were not conflicting and were an accurate

statement of the law.

Chapter 54 of 9

WHITE et al. v. THE RINGGOLD TELEPHONE COMPANY, 334 Ga. App. 325, (November 4, 2015); Cert applied for. Issues: O.C.G.A. § 22-1-6, Failure to Secure the Property by Contract; O.C.G.A. § 22-1-102.2(5), Necessity to condemn private property.

This appeal concerns a petition by The Ringgold Telephone Company to

condemn approximately 0.03 acres of land in Catoosa County for the purpose of

providing telephone and telecommunication services.

Prior to the appointment of a special master, the property owners filed a Motion

to Dismiss the condemnation petition alleging that Ringgold failed to comply with

O.C.G.A. § 22-1-6. Additionally, an exception to the Award of the Special Master was

filed on similar grounds following the hearing. The Court of Appeals held that the trial

court did not err in denying the property owners' motion to dismiss the condemnation

petition and overruling the property owners’ exception to the special master's award.

Evidence at the special master hearing showed that the condemnor made an effort to

agree on a purchase price for the property, but that those negotiations ultimately failed,

which was sufficient to show that it could not procure the property by contract within the

meaning of O.C.G.A. § 22-1-6.

The property owners also alleged that because of pending litigation with Ringgold

regarding prior contractual rights to the property, Ringgold could not, by contract,

procure the property. However, the dispute between White and Ringgold involved the

easement rights arising out of a 2004 agreement, whereas in the condemnation

proceedings, Ringgold sought to acquire a fee simple interest in the property. Georgia

courts have consistently found that condemnation actions are separate from suits for

Chapter 55 of 9

damages related to the property to be taken and that the latter is no reason to delay the

former. Therefore, the special master and the trial court were not precluded from

addressing Ringgold’s petition for taking.

Finally, the property owners also claimed that Ringgold did not show the required

“necessity to condemn the private property.” O.C.G.A. § 22-1-102.2(5). Georgia law

provides that the condemnor is the exclusive judge of necessity in the condemnation of

private property for public purposes. Because large discretion is vested in the party

having the right to condemn, the Court of Appeals found that there was sufficient

evidence to show the necessity of the taking.

FINCHER ROAD INVESTMENTS, LLLP v. CITY OF CANTON, GEORGIA, 334 Ga. App. 502 (November 13, 2015); Cert applied for. Issues: Dismissal of Condemnation Action, Attorney Fees and Expenses of Litigation, compensation for temporary taking.

The City of Canton (“the City”) filed a condemnation action pursuant to Title 32

acquiring property owned by Fincher Road Investments, LLLP (“Fincher Road”).

Fincher Road filed a Notice of Appeal and Motion to Set Aside the condemnation

petition. The Trial Court denied Fincher Road’s motion. Following an appeal of the

issues raised in the Motion to Set Aside, the City dismissed its condemnation action.

Fincher Road filed a motion for attorney fees and costs of litigation and alleged that they

were entitled to compensation for the City’s temporary taking of its property prior to the

dismissal. The Trial Court held that Fincher Road was only entitled to attorney fees and

litigation costs, but no compensation for any taking of the property.

Chapter 56 of 9

The Court of Appeals held that the trial court erred in determining that the

condemnor was only entitled to attorney fees and costs of litigation under O.C.G.A. §

22-1-12 because despite the city's abandonment of the condemnation, the condemnor

was still entitled to any additional compensation for the government's temporary taking

of its property.

The takings clause of the Fifth Amendment to the United States Constitution, U.S

Const. amend. V, provides that private property shall not be taken for public use,

without just compensation. Thus, governmental action that takes property necessarily

implicates the constitutional obligation to pay just compensation. U.S. Const. amend. V;

Ga. Const. art. 1, § 3, para. I(a) However, the Supreme Court of the United States has

recognized that the government may elect to abandon its intrusion or discontinue

regulations. Nevertheless, even such temporary takings are not different in kind from

permanent takings, for which the Constitution clearly requires compensation. It is well

established that when the government's activities have already taken all use of property,

no subsequent action by the government can relieve it of the duty to provide

compensation for the period during which the taking was effective. The Courts have

found that abandonment does not prejudice the property owner. It merely results in an

alteration in the property interest taken, from full ownership to one of temporary use and

occupation. In such cases compensation would be measured by the principles normally

governing the taking of a right to use property temporarily.

O.C.G.A. § 22-1-12 functions to allocate the costs imposed on the condemnor to

the condemnees if the condemnor abandons a condemnation action at any point. Unlike

most plaintiffs, condemnors that abandon their actions must pay the property owner's

Chapter 57 of 9

reasonable costs and expenses actually incurred because of the condemnation

proceedings, including attorney, appraisal, and engineering fees. However, a city's

abandonment and obligation to pay those statutory damages in no way relieves it of the

duty to provide compensation for the period during which the taking was effective.

EARL'S PEARLS, LLC et al. v. COBB COUNTY, GEORGIA, 334 Ga. App. 689, (November 18, 2015). Issue: Motion for Summary Judgment D&B operated a Primrose School child care franchise on property leased from

owner Earl Pearls, LLC. D&B moved for partial summary judgment as to its duty to

mitigate its business loss damages alleging that the costs to relocate the school

exceeded the value of the business.

Summary judgment is appropriate when no genuine issues of material fact

remain and the moving party is entitled to judgment as a matter of law. On appeal, the

appellate court reviews a trial court's grant or denial of summary judgment de novo,

construing the evidence and all reasonable inferences therefrom in the light most

favorable to the nonmoving party.

The Trial Court denied D&B’s motion for partial summary judgment on two

grounds: first, D&B had misinterpreted and mistakenly relied upon Carroll County Water

Authority v. LJS Grease &Tallow, 274 Ga. App. 353 (2005), and secondly, numerous

issues of material fact existed concerning D&B’s duty to mitigate. On appeal, D&B

attacked only one ground for the trial court's denial of its motion for partial summary

judgment, the interpretation of Carroll County, and did not challenge the alternative

Chapter 58 of 9

ground for the ruling involving issues of material fact. Therefore, the appellate court

presumed that the unchallenged issue was correct and affirmed the trial court’s ruling.

However, the Court of Appeals reversed the trial court’s grant of partial summary

judgment to Cobb County. The appellate court concluded that the trial court erred in

granting the county's motion for partial summary judgment, because there was

conflicting evidence regarding whether the condemnee's child care franchise had been

terminated at the time of the condemnation.

Chapter 59 of 9

DIRECT AND CROSS OF CONDEMNEE BUSINESS EVALUATOR

Doug Gaskins

Business Appraisal Group, LLC

Tifton, Georgia

Leanne Gould

HDH Advisors, LLC

Atlanta, Georgia


Chapter 61 of 72

Chapter 62 of 72

Chapter 63 of 72

Chapter 64 of 72

Chapter 65 of 72

Chapter 66 of 72

Chapter 67 of 72

Chapter 68 of 72

Chapter 69 of 72

Chapter 610 of 72

Chapter 611 of 72

Chapter 612 of 72

Chapter 613 of 72

Chapter 614 of 72

Chapter 615 of 72

Chapter 616 of 72

Chapter 617 of 72

Chapter 618 of 72

Chapter 619 of 72

Chapter 620 of 72

Chapter 621 of 72

Chapter 622 of 72

Chapter 623 of 72

Chapter 624 of 72

Chapter 625 of 72

Chapter 626 of 72

Chapter 627 of 72

Chapter 628 of 72

Chapter 629 of 72

Chapter 630 of 72

Exhibit 1

Intergalactic Appraisal Group, LLC

Chapter 631 of 72

Exhibit 2


Chapter 632 of 72

Exhibit 3


Chapter 633 of 72

Exhibit 4


Chapter 634 of 72

Exhibit 5


Chapter 635 of 72

Exhibit 6


Chapter 636 of 72

Exhibit 7


Chapter 637 of 72

Exhibit 8


Chapter 638 of 72

Exhibit 9


Chapter 639 of 72

Exhibit 10


Chapter 640 of 72

Exhibit 11


Chapter 641 of 72

Exhibit 12


Chapter 642 of 72

Exhibit 13


Chapter 643 of 72

Exhibit 14


Chapter 644 of 72

HDH ADVISORS LLC

HDH Advisors LLC 2002 Summit Blvd. Suite 950 Atlanta, GA 30319

February 1, 2016 Matt Reeves, Esq. Anderson, Tate & Carr, P.C. One Sugarloaf Centre, Suite 4000 Duluth, Georgia 30097 Re: Hubert Theater Dear Mr. Reeves, You have asked me to analyze the valuation of the Hubert Theater prepared by Z. Stardust of Intergalactic Appraisal Group, LLC as of August 31, 2015. Based on my analysis it is my opinion that Mr. Stardust overstated the fair market value of the Hubert Theater (the “Business”), if any. My opinion is based on the following:

1. The Hubert Theater is a 503(c)(3) tax-exempt non-profit. As non-profits are designed not to generate positive cashflows upon which the value of a business is dependent, the fair market value of the Business is zero.

2. The Business lost money every year for the past five (5) years and only showed a profit in the past couple of years due to increases in investments made in the stock market. Those investments are non-operating investments and the Business would continue to earn on those investments regardless of the closing of the theater itself.

3. The financial statements show that the Business can continue to operate as a touring company independent of the theater building.

If one were to value the Business as a profit-generating entity, the fair market value of the Hubert Theater is significantly less than Mr. Stardust concludes based on the following:

1. Mr. Stardust includes non-operating investment earnings in his calculation of value. These non-operating investments would not be sold to a hypothetical buyer of the Business.

2. Mr. Stardust does not adequately consider that revenue growth1 has declined over the past 4-years, and in 2014 the Business’ revenue declined almost 11%. The Business’ core revenue sources (subscriptions, ticket sales and public support) which make up over 95% of the Business’ revenue all declined in 2014.

1 Excluding investment earnings.

Chapter 645 of 72

HDH Advisors LLC Hubert Theater February 1, 2016 Page 2

HDH ADVISORS LLC

3. Mr. Stardust does not adequately consider that the Business’ expenses have exceeded revenue in each of the five (5) years included in Mr. Stardust’s analysis. A hypothetical buyer would have to increase revenue or cut expenses by at least 16% to breakeven, much less generate profit.

4. Mr. Stardust’s calculation of Net Cash Flow to Invested Capital is overstated by the inclusion of investment earnings. Even if you assume that the inclusion of the earnings generated by these non-operating assets should be included in the calculation, Mr. Stardust’s calculation is erroneous and overstates Net Cash Flow to Invested Capital by:

a. Understating interest expense.

b. Excluding anticipated capital expenditures.

c. Excluding working capital requirements.

5. Mr. Stardust’s discount rate is too low for the following reasons:

a. The cost of equity does not consider sufficient specific-company risk.

b. The weighting of debt and equity in the capital structure is incorrect. It appears that Mr. Stardust reversed the weighting in error, the correct weightings are 64% equity and 36% debt.

c. Mr. Stardust’s long-term growth rate of 3% is overstated and is not supported by the Business’ negative growth rate.

6. Mr. Stardust’s Direct Market Data Method is based on a single out-dated transaction occurring in 2008. Although, Mr. Stardust states that his analysis of the industry as a whole supports the revenue multiple used in his calculation, the transactions included in his industry analysis are not comparable to the Business.

7. Mr. Stardust places significant reliance on the indicated value generated by his erroneous Direct Market Data Method by assigning a weighting of 40% in his reconciliation of value. No reliance should be given to this valuation method due to lack of sufficient or relevant data.

Adjusting for these errors and applying more reasonable and supportable assumptions to the calculation of value results in an adjusted fair market value of no more than $3,300,000.2 Kind regards, Leanne Gould, CPA/ABV/CFF, ASA Managing Director HDH ADVISORS LLC (770) 790.5014 [email protected] 2 As shown in the attached Schedules.

Chapter 646 of 72

Hubert Theater1 Main Street

Pursley City, Somewhere 00000

Reconciliation

Method Indication of value Weighting Contributory value

Capitalization of earnings method $3,284,215 100.00% $3,284,215Direct market data method $7,986,690 0.00% $0

Total 100.00%

Reconciled value $3,284,215

Schedule 1

HDH Advisors LLC

Chapter 647 of 72



Income and Expense Statement

2010 2011 2012 2013 2014Revenues

Subscriptions 4,203,954$ 4,028,765$ 4,604,410$ 4,539,636$ 4,341,999$ Individual and group ticket sales 4,456,753 5,624,956 6,672,787 6,915,318 6,261,821

Public Support 6,410,422 7,477,900 8,706,502 8,500,907 8,090,825 Concessions income 121,175 147,782 189,312 215,974 179,642

Royalty income 48,936 27,227 44,310 3,899 11,100 Costume and scenery sales/rentals 184,690 40,907 197,302 171,942 219,004

Tour and production income - 656,233 152,478 1,478,406 350,000 Miscellaneous Income 104,570 141,201 53,624 22,200 25,341

Total Revenues 15,530,500$ 18,144,971$ 20,620,725$ 21,848,282$ 19,479,732$ Revenue growth 16.83% 13.64% 5.95% -10.84%

ExpensesSalaries, payroll taxes, employee benefits 9,440,944$ 10,367,821$ 10,418,020$ 12,644,284$ 12,227,662$

Advertising 1,638,533 1,656,681 1,684,309 1,692,681 1,724,784 Royalties 438,788 488,548 605,901 323,857 510,851

Fees and expenses 1,054,291 1,034,513 1,116,691 1,425,999 1,312,446 Costumes 167,360 226,724 184,102 302,276 201,916

Electrical equipment 34,492 40,621 61,841 120,275 63,321 Props and scenery 440,984 570,234 497,991 1,059,466 680,456

Travel, housing and entertainment 410,976 392,133 502,989 661,770 548,333 Insurance 83,836 72,201 92,913 101,226 134,708

Repairs and maintenance 128,167 143,127 158,084 200,752 96,593 Supplies and non-depreciable equipment 320,098 550,128 838,824 1,032,531 668,847

Postage 147,661 148,726 182,919 122,930 170,586 Rental 42,996 28,353 28,206 25,873 32,173

Depreciation and Amortization 343,034 186,963 183,959 222,820 249,533 Phone campaign 404,275 443,816 517,728 52,207 33,038

Benefit and other event expense 530,509 661,784 396,131 360,751 351,047 Utilities 400,435 353,708 318,168 307,483 380,330 Security 4,268 10,694 - 5,154 4,532

Miscellaneous 244,679 158,822 511,074 223,247 311,024 Designated-Artistic 899,649 965,538 964,569 929,174 883,550

Designated-Production 637,252 683,923 683,236 658,165 625,848 Designated-General and Administrative 374,195 376,758 466,377 453,895 493,785

Designated-Fundrasising 259,022 495,637 630,099 630,354 799,254 Total operating expenses 18,446,444$ 20,057,453$ 21,044,131$ 23,557,170$ 22,504,617$

Operating income (loss) (2,915,944)$ (1,912,482)$ (423,406)$ (1,708,888)$ (3,024,885)$

Non-Operating Income (expense)Investment earnings/(loss) 1,691,773$ 1,697,010$ 1,803,389$ 1,987,153$ 3,762,230$

Investment growth 0.31% 6.27% 10.19% 89.33%

Net income (loss) (1,224,171)$ (215,472)$ 1,379,983$ 278,265$ 737,345$

Schedule 2

HDH Advisors LLC

Chapter 648 of 72



Statement of Financial Position

2010 2011 2012 2013 2014

Assets

Cash 190,300$ 454,217$ 310,355$ 174,575$ 554,344$ Grants, pledges, and other receivables 2,182,801 2,110,897 1,639,017 2,134,831 1,830,491

Prepaid expenses 1,839,165 1,508,091 1,697,434 1,669,267 1,639,476

Total current assets 4,212,266 4,073,205 3,646,806 3,978,673 4,024,311

Noncurrent Assets-Investments 25,281,558 25,967,147 28,295,313 27,852,237 29,275,951

PP&E 53,881,391 54,257,729 55,110,763 55,561,850 56,206,333 Less: accumulated depreciation 15,126,256 16,714,278 18,205,405 19,891,289 21,634,367

Net: PP&E 38,755,135 37,543,451 36,905,358 35,670,561 34,571,966 Other fixed assets-Grants & Deposits 1,234,963 1,341,532 1,510,833 2,346,416 2,232,280

Total fixed assets 39,990,098 38,884,983 38,416,191 38,016,977 36,804,246

Total assets 69,483,922$ 68,925,335$ 70,358,310$ 69,847,887$ 70,104,508$

Liabilities & Net Assets

Accounts payable and accrued expenses 718,339$ 475,406$ 605,415$ 593,613$ 776,315$ Deferred subscription and admission revenue 4,162,840 4,452,658 4,865,641 4,678,755 4,605,329

Bonds payable-due within one year 390,000 490,000 590,000 590,000 590,000

Total current liabilities 5,271,179 5,418,064 6,061,056 5,862,368 5,971,644

Bonds Payable- due after one year 26,940,000 26,450,000 25,860,000 25,270,000 24,680,000

Total liabilities 32,211,179$ 31,868,064$ 31,921,056$ 31,132,368$ 30,651,644$

Unrestricted 33,841,792$ 33,818,990$ 34,390,672$ 34,117,848$ 35,108,482$ Temporarily restricted 3,430,951 3,238,281 4,046,582 4,597,671 4,344,382

Total Net Assets 37,272,743$ 37,057,271$ 38,437,254$ 38,715,519$ 39,452,864$

Total Liabilities & Net Assets 69,483,922$ 68,925,335$ 70,358,310$ 69,847,887$ 70,104,508$

Cash-free net working capital (859,213) (1,309,076) (2,134,605) (1,468,270) (1,911,677)

Schedule 3

HDH Advisors LLC

Chapter 649 of 72



Common Size Income and Expense Statement

2010 2011 2012 2013 2014Revenues

Subscriptions 27.07% 22.20% 22.33% 20.78% 22.29%Individual and group ticket sales 28.70% 31.00% 32.36% 31.65% 32.15%

Public Support 41.28% 41.21% 42.22% 38.91% 41.53%Concessions income 0.78% 0.81% 0.92% 0.99% 0.92%

Royalty income 0.32% 0.15% 0.21% 0.02% 0.06%Costume and scenery sales/rentals 1.19% 0.23% 0.96% 0.79% 1.12%

Tour and production income 0.00% 3.62% 0.74% 6.77% 1.80%Miscellaneous Income 0.67% 0.78% 0.26% 0.10% 0.13%

Total Revenues 100.00% 100.00% 100.00% 100.00% 100.00%

ExpensesSalaries, payroll taxes, employee benefits 60.79% 57.14% 50.52% 57.87% 62.77%

Advertising 10.55% 9.13% 8.17% 7.75% 8.85%Royalties 2.83% 2.69% 2.94% 1.48% 2.62%

Fees and expenses 6.79% 5.70% 5.42% 6.53% 6.74%Costumes 1.08% 1.25% 0.89% 1.38% 1.04%

Electrical equipment 0.22% 0.22% 0.30% 0.55% 0.33%Props and scenery 2.84% 3.14% 2.42% 4.85% 3.49%

Travel, housing and entertainment 2.65% 2.16% 2.44% 3.03% 2.81%Insurance 0.54% 0.40% 0.45% 0.46% 0.69%

Repairs and maintenance 0.83% 0.79% 0.77% 0.92% 0.50%Supplies and non-depreciable equipment 2.06% 3.03% 4.07% 4.73% 3.43%

Postage 0.95% 0.82% 0.89% 0.56% 0.88%Rental 0.28% 0.16% 0.14% 0.12% 0.17%

Depreciation and Amortization 2.21% 1.03% 0.89% 1.02% 1.28%Phone campaign 2.60% 2.45% 2.51% 0.24% 0.17%

Benefit and other event expense 3.42% 3.65% 1.92% 1.65% 1.80%Utilities 2.58% 1.95% 1.54% 1.41% 1.95%Security 0.03% 0.06% 0.00% 0.02% 0.02%

Miscellaneous 1.58% 0.88% 2.48% 1.02% 1.60%Designated-Artistic 5.79% 5.32% 4.68% 4.25% 4.54%

Designated-Production 4.10% 3.77% 3.31% 3.01% 3.21%Designated-General and Administrative 2.41% 2.08% 2.26% 2.08% 2.53%

Designated-Fundrasising 1.67% 2.73% 3.06% 2.89% 4.10%Total operating expenses 118.78% 110.54% 102.05% 107.82% 115.53%

Operating income (loss) -18.78% -10.54% -2.05% -7.82% -15.53%

Non-Operating Income (expense)Investment earnings/(loss) 10.89% 9.35% 8.75% 9.10% 19.31%

Net income (loss) -7.88% -1.19% 6.69% 1.27% 3.79%

Schedule 4

HDH Advisors LLC

Chapter 650 of 72



Statement of Financial Position

2010 2011 2012 2013 2014

Assets

Cash 0.27% 0.66% 0.44% 0.25% 0.79%Grants, pledges, and other receivables 3.14% 3.06% 2.33% 3.06% 2.61%

Prepaid expenses 2.65% 2.19% 2.41% 2.39% 2.34%

Total current assets 6.06% 5.91% 5.18% 5.70% 5.74%

Noncurrent Assets-Investments 36.38% 37.67% 40.22% 39.88% 41.76%

PP&E 77.55% 78.72% 78.33% 79.55% 80.18%Less: accumulated depreciation 21.77% 24.25% 25.88% 28.48% 30.86%

Net: PP&E 55.78% 54.47% 52.45% 51.07% 49.31%Other fixed assets-Grants & Deposits 1.78% 1.95% 2.15% 3.36% 3.18%

Total fixed assets 57.55% 56.42% 54.60% 54.43% 52.50%

Total assets 100.00% 100.00% 100.00% 100.00% 100.00%

Liabilities & Net Assets

Accounts payable and accrued expenses 1.03% 0.69% 0.86% 0.85% 1.11%Deferred subscription and admission revenue 5.99% 6.46% 6.92% 6.70% 6.57%

Bonds payable-due within one year 0.56% 0.71% 0.84% 0.84% 0.84%Total current liabilities 7.59% 7.86% 8.61% 8.39% 8.52%

Bonds Payable- due after one year 38.77% 38.37% 36.75% 36.18% 35.20%

Total liabilities 46.36% 46.24% 45.37% 44.57% 43.72%

Unrestricted 48.70% 49.07% 48.88% 48.85% 50.08%Temporarily restricted 4.94% 4.70% 5.75% 6.58% 6.20%

Total Net Assets 53.64% 53.76% 54.63% 55.43% 56.28%

Total Liabilities & Net Assets 100.00% 100.00% 100.00% 100.00% 100.00%

Schedule 5

HDH Advisors LLC

Chapter 651 of 72



Net Cash Flow to Invested Capital[1]

Scenario #1 Scenario #2 Scenario #3Normalized net income -$3,024,885 $737,345 $737,345

+ Interest expense (net of taxes) 318,610 318,610+ Normalized non-cash charges 249,533 249,533

= Gross cash flow nmf $1,305,488 $1,305,488

- Anticipated capital expenditures -620,076 -620,076-or+ Working capital [1] -3,905,194 -15,194

- Preferred stock dividends 0 0

= Net cash flow to invested capital nmf nmf $670,217

[1] Assumes that the Working Capital Deficit of $3,890,000 is funded through the use of Unrestricted Net Assetsand projected working capital needs increase with revenue at the long-term growth rate.

Schedule 6

HDH Advisors LLC

Chapter 652 of 72

Net Working Capital Analysis - RMA Data

RMA Industry Publication NAICS Code 711110 [1]

Hubert Theater

2012 - 2013 - 2014 - As of2013 2014 2015 31-Aug-15

As a % of Total AssetsCurrent Assets 31.5% 32.7% 32.2% 5.7%Less: Current Liabilities 23.0% 24.8% 20.6% 8.5%Working Capital 8.5% 7.9% 11.6% -2.8%

Working Capital 8.5% 7.9% 11.6% -2.8%Plus: Notes Payable - Short Term 5.2% 3.2% 3.4% 0.0%Plus: Current Mat. - L.T.D. 2.2% 2.2% 2.5% 0.8%Net Working Capital (NWC) 15.9% 13.3% 17.5% -1.9%

Net Working Capital 15.9% 13.3% 17.5% -1.9%

Times: Total Assets - $000 [2] 2,834,505$ 3,283,519$ 2,750,140$ 70,104,508$

Net Working Capital - $000 450,686$ 436,708$ 481,275$ (1,357,333)$ Divided by Total Sales - $000 [2] 3,704,307$ 5,708,553$ 3,664,785$ 19,479,732$

NWC As a % of Sales 12.2% 7.7% 13.1% -7.0%

Concluded NWC Requirement - Hubert Theater 13.0%

Calculation of NWC Adjustment Year 1 ChangeNormalized NWC Requirement 13.0% 13.0%Times: Revenue 19,479,732$ 19,596,610$ Normalized NWC Balance 2,532,365 2,547,559 0.60%Actual NWC Balance (as of 8/31/15) (1,357,333) Indicated NWC Deficit (rounded) (3,890,000)$ 15,194$ 0.60%

Notes:[1]

[2] For the RMA information, this represents the aggregate total assets and total sales of the companies involved in the statement stud

Information taken from Risk Management Association's ("RMA") 2014-2015 Annual Statement Studies publication for NAICS Code 711110 ("Theater Companies and Dinner Theaters").

Schedule 7

HDH Advisors LLC

Chapter 653 of 72



Revenue Gowth

2010 2011 2012 2013 2014

Revenues $15,530,500 $18,144,971 $20,620,725 $21,848,282 $19,479,732

Annual Growth Base 16.83% 13.64% 5.95% -10.84%

Average 6.40%

Schedule 8

HDH Advisors LLC

Chapter 654 of 72



Long Term Growth

Component Percentage Source

Consumer Price Index - CPI - inflation 0.20% www.usinflationcalculator.comSomewhere County Population Growth 0.40% www.quickfacts.census.gov

Long term growth 0.60%

Schedule 9

HDH Advisors LLC

Chapter 655 of 72

http://www.usinflationcalculator.com/

http://www.quickfacts.census.gov/



Capitalization of earnings

Normalized net cash flow to invested capital $670,217

WACC 18.89%Long term growth 0.60%

Capitalization rate 18.29%

Capitalized value $3,685,988

Lack of marketability discount 401,773Stout Risius Ross - Restricted Stock Study - 10.90%

Indication of value - capitalization of earnings method $3,284,215

Schedule 10

HDH Advisors LLC

Chapter 656 of 72



Weighted Average Cost of Capital - WACC

(ke X We) + (kd[1 – t] X Wd)

ke 27.99%We 63.95%kd 2.75%Wd 36.05%

t 0.00%

WACC 18.89%

ke = Required rate of return equitykd = Company’s cost of debt capitalWe = Percentage of equity capital Wd = Percentage of debt capital

t = Company’s effective income tax rate

Schedule 11

HDH Advisors LLC

Chapter 657 of 72



Cost of Equity

CRSP (Center for Research in Security Prices) Data

Rf - spot ß RPm RPs RPI C-SRP ERP adj. = ke

Build up 2.64% 1.00 7.00% 8.94% 4.41% 5.00% 0.00% 27.99%

M-CAPM 2.64% 1.63 7.00% 8.94% 0.00% 5.00% 0.00% 27.99%

Risk Premium Report

Rf - spot ß RPm+s RPs RPI C-SRP ERP adj. = ke

Build up 1 2.64% 1.00 13.81% 0.00% 4.41% 5.00% 1.90% 27.76%

M-CAPM 2.64% 1.63 7.00% 6.76% 0.00% 5.00% 0.00% 25.81%

Build up 2 2.64% 1.00 7.00% 6.76% 4.41% 5.00% 0.00% 25.81%

Schedule 12

HDH Advisors LLC

Chapter 658 of 72



Direct Market Data Method

Revenues $19,479,732

Market multiple 0.41

Indication of value - direct market data method $7,986,690

Schedule 13

HDH Advisors LLC

Chapter 659 of 72

Appendix A

Chapter 660 of 72

HDH ADVISORS LLC

LEANNE GOULD CPA, ASA, ABV/CFF Managing Director HDH Advisors LLC 2002 Summit Blvd. Suite 950 Atlanta, GA 30319 Tel 770-790-5014 Cell 770-315-9627 [email protected] FUNCTION AND SPECIALIZATION Leanne leads HDH’s Litigation Support and Forensic Accounting practice providing financial analysis and expert witness services in complex commercial, marital and bankruptcy-related disputes. EDUCATION & CERTIFICATIONS Certified Public Accountant Accredited Senior Appraiser Accredited in Business Valuation Certified in Financial Forensics Master of. Business Administration,

University at Buffalo (SUNY) Bachelor of Science, University at

Buffalo (SUNY) PROFESSIONAL ASSOCIATIONS American Society of Certified Public

Accountants (AICPA) American Society of Appraisers (ASA) Georgia Society of Certified Public

Accountants (GSCPA) Georgia Association of Women

Lawyers (GAWL) American Bankruptcy Institute (ABI) International Women’s Insolvency &

Restructuring Confederation (IWIRC)

PROFESSIONAL EXPERIENCE AND BACKGROUND Leanne leads HDH Advisors’ Litigation Support & Forensic Accounting practice. She is a CPA with over 20 years of experience in business valuation, financial and economic damage analysis, forensic accounting, bankruptcy consulting, and medical device manufacturing.

Leanne provides litigation support and forensic accounting services in complex commercial and bankruptcy disputes across the nation. Her work in contract/collection disputes and wage and hour claims regularly involves analysis of large data sets and the distillation of information into a format presentable to a judge and/or jury. Locally, she provides valuation, forensic accounting and financial analysis in shareholder disputes and complex divorce cases. Leanne has testified as an expert in business valuation and financial/data analysis at depositions, hearings and jury trials in matters before U.S. District Courts, Superior and State Courts in Georgia and arbitration proceedings. She has issued written expert reports and affidavits in disputed matters in U.S. Bankruptcy Court - District of Delaware and Southern District of Florida, U.S. District Courts, Superior Court, State Court and County Courts in Georgia, North Carolina, Ohio and Virginia. REPRESENTATIVE ASSIGNMENTS AND ENGAGEMENT WORK Prepared transaction and solvency analysis for plaintiffs and

defendants in avoidance actions brought in U.S. Bankruptcy Court and under the U.V.T.A and related state statutes. Analyzed payments to insiders and affiliate entities where alter ego allegations were claimed. Clients include the Federal Deposit Insurance Corporation.

Prepared analyses in defense of collective actions brought under the F.L.S.A. and similar state statutes. Claims included failure to pay minimum wage, overtime and/or necessary business expenses. The analyses provided the clients with employee-specific data on which to evaluate claims of individual plaintiffs in these various cases.

Provided forensic accounting services to plaintiffs in fraud cases including tracing of assets through multi-tiered entities and shell corporations. Cases involved fraudulent inducement and conversion, financial statement fraud, Ponzi schemes, check kiting, embezzlement and misappropriation of trade secrets.

Estimated economic damages in breach of contract, business interruption, trademark infringement, and wrongful termination matters.

Led analysis of certain sales transactions and bills of materials (BOMs) for an international computer manufacturer to verify appropriateness of royalty payments to a licensor. Analysis involved millions of line items related to products built and sold around the world.

Prepared expert report in support of a claim against a processor of medical claims for failure to properly process and pay claims containing hundreds of thousands of line items.

Prepared business valuations in numerous ownership disputes and divorce cases and analyzed separate and marital property in cases involving transactions of millions of dollars of portfolio assets.

Chapter 661 of 72

Appendix B

Chapter 662 of 72

Chapter 663 of 72

Chapter 664 of 72

Chapter 665 of 72

Chapter 666 of 72

Chapter 667 of 72

Chapter 668 of 72

Chapter 669 of 72

Chapter 670 of 72

Chapter 671 of 72

Chapter 672 of 72

DIRECT AND CROSS OF BUSINESS VALUATION EXPERTS

R. Matthew Reeves

Andersen, Tate & Carr, P.C.

Duluth, Georgia


O N E S U G A R L O A F C E N T R E

1 9 6 0 S A T E L L I T E B O U L E V A R D , S U I T E 4 0 0 0 D U L U T H , G E O R G I A 3 0 0 9 7

( 7 7 0 ) 8 2 2 - 0 9 0 0 F A C S I M I L E ( 7 7 0 ) 8 2 2 - 9 6 8 0 w w w . a t c l a w f i r m . c o m R . M a t t h e w R e e v e s D i r e c t P h o n e : ( 7 7 0 ) 2 3 6 - 9 7 6 8 D i r e c t F a x : ( 7 7 0 ) 2 3 6 - 9 7 7 8 E m a i l : m r e e v e s @ a t c l a w f i r m . c o m

DIRECT AND CROSS OF BUSINESS VALUATION EXPERTS Well-Known Business Damages Cases Carroll County Water Authority v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 (2005): The condemnee’s decision not to relocate its business did not constitute a failure by the condemnee to mitigate its business damages, because the estimated cost to the condemnee of relocating the business exceeded the value of the business. Old South Bottle Shop, Inc. v. DOT, 175 Ga. App. 295 (1985): It was error to exclude the condemnee’s expert’s testimony regarding the cash flow of the condemnee’s business which was totally destroyed by the taking. Lost profits are not the only elements to be considered in determining damages resulting from a total or partial destruction of a business. Bowers v. Fulton County, 221 Ga. 731 (1966): When the condemnee has sustained damages and incurred expenses incident to the removal of the condemnee’s business, it is error to charge the jury only with regard to the value of the land taken. Destruction of an established business is and must be a separate item of recovery from the value of land taken. Recent Business Damages or Expert Witness Cases Toler v. DOT, 328 Ga. App. 144 (2014): Reversal and re-trial, because the Court admitted the amount of consideration paid for a post-condemnation assignment of the lessee business’ claims to its landlord. However, the condemnee’s business valuation witness will be excluded from testifying at the new trial, because the lessee’s counsel had affirmatively agreed not to call the expert, prior to the assignment of the claim. The trial court’s expert witness gatekeeper role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Evans v. DOT, 331 Ga. App. 313 (2015): Judgment affirmed on a jury verdict valuing the condemned property at $50,000.00, when the condemnee had presented a claim of over $1,800,000.00. The property was presently agriculturally zoned timberland within the city limits of Gordon. The property contained kaolin deposits, but City of Gordon zoning ordinances prohibited mining on agriculturally zoned properties. The DOT presented testimony from two experts who opined that the City was not likely to grant a “special exemption” to permit mining

Chapter 71 of 3

on the property, and presented opinions of around $30,000.00 for the taking. The condemnee presented a contrary opinion by a former City official. ADC Investments, LLC v. DOT, 325 Ga. App. 685 (2014): Reversed a trial court’s decision to bar a condemnee from presenting evidence on future anticipated income from a digital billboard, when the condemned property only contained a static billboard. The Court held there were triable issues of fact whether the City of Lawrenceville would change its outdoor advertising sign ordinance which prohibited digital signs, where the City had discussed in City Council meetings an amendment which would allow digital billboards and the City later amended the ordinance and the sign company had actually installed digital billboards in other locations. DOT v. McMeans, 294 Ga. 436 (2014): The Georgia Supreme Court held that business losses stemming from the condemnation of leased property should be pled by the lessee, when the business belongs to the lessee. This is true, even where, as was the case in McMeans, the corporation is solely owned by the property owner. Pennington v. Gwinnett County, 329 Ga. App. 255 (2014): Landowners the Penningtons sued Gwinnett County after the County had successfully entered into a cell tower lease which caused T-Mobile to terminate its option to lease from the Penningtons. The Court held that though inverse condemnation applies to any valid property interest, a potential “business opportunity” is not a valid, compensable property right when an option only confers a contingent, future right. Thus, a “prospective business opportunity” is not enough on its own to show to maintain a valid inverse condemnation claim. Recent General Condemnation Cases Dillard Land Investments, LLC v. Fulton County, 295 Ga. 515 (2014): The Georgia Supreme Court held that Fulton County could not unilaterally dismiss a condemnation action after a special master had entered an award valuing the property, but before the condemnor had paid the award. “[T]he award determining the value of the property has . . . dispositive effect.” To hold otherwise, would allow “the condemnor to re-litigate the same issue in a newly filed action in hopes of a better result.” A condemnor may still voluntarily dismiss its action before the special master announces the value award. The condemnor’s permissible time to dismiss unilaterally is before an “actual finding, decision, or judgment on the merits becomes known . . .” Fincher Road Investments v. City of Canton, 334 Ga. App. 502 (2015): If a condemnation is set aside/dismissed in a declaration of taking case, a condemnee can pursue compensation for a temporary taking, in addition to legal fees and expenses of litigation. The Landowners Bill of Rights in 2006 expanded landowners’ rights and safeguards, rather than limiting them. Emery v. Chattooga County, 325 Ga. App. 587 (2014): The Court found that the “public use” requirement was satisfied by the fact that the public at large had the right to use the condemned road, regardless of whether or not a large number of the public actually did so. The Court noted that the former private dirt road’s condemnation would benefit emergency responders, and that Chattooga County had a policy of acquiring roads where, as here, residents requested that the County do so.

Chapter 72 of 3

DeKalb County v. Heath, 331 Ga. App. 179 (2015): Affirmed a judgment that subsequent damage by continuing injurious acts in an inverse condemnation action were not barred by res judicata. The property owner was not barred from double recovery where the owner had already recovered damages from an early suit, but Dekalb County had failed to make needed repairs to its stormwater drainage system and flooding and erosion of the property continued after the first judgment. Jones Creek Investors, LLC and Savannah Riverkeeper, Inc. v. Columbia County and CSX Transportation, 98 F. Supp. 3d 1279 (S.D. Ga. 2015): A golf course owner and environmental organization brought an action under the federal Clean Water Act (CWA) and state law alleging that CSX’s upstream activities caused significant damages to the plaintiff’s land and business, and that County's lax enforcement of its discharge permitting system contributed to the plaintiff’s damages. The Court granted summary judgment in favor of CSX. Specifically, as to the inverse condemnation claim against CSX, the Court held that the controversy in question was not sufficiently related to the condemnation powers granted to CSX by the state. The Court held that though CSX could possibly be considered a “state actor” when condemning property, where CSX’s actions were not directly related to condemnation, it would not necessarily be considered a “state actor” for Section 1983 purposes. The Court allowed the plaintiff’s claims against the County to remain pending, but requested additional briefs.

Matt Reeves is a litigation partner at Andersen, Tate & Carr in Duluth, Georgia, and his practice covers a wide range of matters within the areas of real estate litigation, commercial and banking litigation, and probate litigation, including representing private property owners and business owners in eminent domain and disputed zoning matters. Mr. Reeves holds an AV Preeminent Rating from Martindale-Hubbell, and is the former President of the Gwinnett County Bar Association and Duluth Rotary Club. He presently serves on the board of the Greater North Fulton Chamber of Commerce and as president of Duluth Business Association. In addition to representing clients in matters involving the government, Matt served as Counsel to Representative Wendell Willard, Chairman of the House Judiciary Committee, during the 2008 Georgia General Assembly, and served as a participant in the Georgia General Assembly’s efforts to modernize the State of Georgia’s evidence rules which formed the basis for the new Georgia Evidence Code. Matt graduated with honors from the University of Georgia School of Law, with high honors from Mercer University, and from The Bolles School in Jacksonville, Florida. He also attended the National Institute of Trial Advocacy’s deposition seminar at Duke University Law School. Research Acknowledged and Appreciated: Thomas T. Tate, Andersen, Tate & Carr, P.C. Founding Partner Marian Adeimy, Andersen, Tate & Carr, P.C. John Breakfield, The Breakfield Firm, Gainesville, Georgia Jon Tonge, UGA School of Law Class of 2016

Chapter 73 of 3

MOTION IN LIMINE AND JURY CHARGES FOR USE BY

PLAINTIFF-CONDEMNOR

Thomas L. Fitzgerald

Hulsey, Oliver & Mahar, LLP

Gainesville, Georgia


MOTION IN LIMINE AND JURY CHARGES

FOR USE BY PLAINTIFF-CONDEMNOR

Thomas L. Fitzgerald Hulsey, Oliver & Mahar, LLP


MOTION IN LIMINE AND JURY CHARGES FOR USE BY PLAINTIFF-CONDEMNOR

Thomas L. Fitzgerald Hulsey, Oliver & Mahar, LLP


TABLE OF CONTENTS Plaintiff-Condemnor’s First Motion in Limine………………………………………….1 Brief in Support of Plaintiff-Condemnor’s First Motion in Limine……………………..6 Plaintiff-Condemnor’s Requests to Charge………...…………………………………..28 Certificate of Service…………………………………………………………………...66

-i-

Chapter 8i

IN THE SUPERIOR COURT OF AINTREE COUNTY

STATE OF GEORGIA

PURSLEY CITY DEPARTMENT § OF TRANSPORTATION, § CIVIL ACTION FILE § PLAINTIFF-CONDEMNOR, § NO. _______________ § v. § § HUBERT THEATRE GROUP, INC.; § and HUBERT THEATRE § PROPERTIES, LLC, § § DEFENDANT-CONDEMNEES. §

PLAINTIFF-CONDEMNOR'S FIRST MOTION IN LIMINE

COMES NOW, the Plaintiff-Condemnor, in the above-styled action, and hereby files

this its first motion in limine relating to evidence which may be tendered at the trial of this case.

The Plaintiff-Condemnor respectfully requests that this Court enter an order precluding the

production of evidence concerning certain subject matters, precluding the placement of such

evidence into the record before the jury, and instructing the attorneys for the Defendant-

Condemnees to offer no such evidence, make statements, ask questions or permit their witnesses

to discuss such subject matters. The Plaintiff-Condemnor shows the Court that the following

subject matters are irrelevant and inadmissible under Georgia law:

1) Any evidence involving a real estate sales contract or a lease of property, unless the court

can review the contract and make a determination as to its validity;

Chapter 81 of 66

2) All evidence as to a loss of fair market value, or other losses, that occurred to the subject

property before the actual date of acquisition, including, but not limited to:

a. Any diminution in value as a result of any anticipated condemnation;

b. Any losses incurred due to a loss of any tenant, or rental income prior to the date

of acquisition;

c. Any losses allegedly due to the property being "unrentable" because of the

anticipated condemnation

3) Any and all evidence as to sales that are not arms-length transactions, such as sales to

other authorities with the power of eminent domain.

4) Any and all evidence making reference that federal funding is, or may be, available for

this project;

5) Any and all evidence referencing the amount of the estimate of just and adequate

compensation originally paid into court by the Plaintiff-Condemnor;

6) Any evidence that a witness called by the Defendant-Condemnee was previously

employed by Plaintiff-Condemnor;

7) Any evidence of temporary inconvenience due to the construction of the project, including,

but not limited to disruption, debris, smoke and noise;

8) Any and all express references or statements that the subject property is "unique";

9) Any evidence of alleged "bad faith" on the part of Condemnor;

10) Any evidence concerning negotiations for the acquisition of the subject parcel either

before or after the date of taking;

11) Any evidence of injuries to feelings or sentimental damages;

12) Any evidence of consequential damages for changes in traffic pattern or road design;

Chapter 82 of 66

13) Evidence of the post-taking assignment of a leasehold interest in the subject property;

14) Summaries of an expert witness's opinion or testimony and hearsay evidence upon which

an expert witness bases his opinion;

15) Any and all evidence concerning the appraisal of the subject property in any condition

other than the condition in which it was in on the date of taking, including evidence of an

agreement or assignment of interest in the litigation, or any award arising therefrom,

which occurred after the date of taking;

16) Any and all evidence concerning the description of the completed road improvements

(especially any driveway access), except as it will actually be constructed upon

completion of the project;

17) Any evidence of ad valorem property tax assessment or return to show the value of the

subject property;

18) Any evidence as to a "cost to cure" which represents a cost valuation after the date of

taking;

19) Any and all evidence regarding or related to the existence of "sound walls" or "noise

walls", or the construction or planned construction by Condemnor of "sound walls" or

"noise walls" on parts of the Project not owned by Condemnees, including any evidence

concerning or relating to environmental or other studies concerning the need for or

construction of sound or noise walls on such non-adjacent or non-contiguous property,

any evidence concerning or relating to the reasons why such noise or sound walls were

required or will be required to be constructed on such property, the existence or

interpretation of any federal regulations requiring the construction or placement of such

Chapter 83 of 66

walls, and any evidence collected during such studies which was not related to the noise

or sound levels of the Project on the Remainder property;

20) Any evidence concerning or related to the reasons "why" Condemnor will construct the

Project as contemplated or planned, including any evidence as to "why" Condemnor will

construct the Project with or without sound or noise walls;

21) Evidence of the construction of a median on the subject road project in support of a claim

for consequential damages to the remainder;

22) As a corollary of the forgoing, evidence of negotiations regarding construction of a

median crossover in an attempt to compromise a claim;

23) Evidence of the cost of constructing a deceleration lane for a commercial driveway, in

support of a loss of access claim for consequential damages;

24) Photographs or videotapes of the roadway or adjacent property that were taken during the

construction process;

25) Evidence as to the value of the property if subdivided, where, on the date of taking, the

property has neither been subdivided, nor is such a use a reasonably probable use;

26) Any and all evidence regarding Aintree County Ordinance 66-148.

In support of this trial motion in limine, Plaintiff-Condemnor attaches hereto a brief in

support thereof for consideration by the Court

Respectfully submitted, this ______ day of _______________, 20___.

Chapter 84 of 66

HULSEY, OLIVER & MAHAR

By:___________________________________ Thomas L. Fitzgerald Georgia State Bar No. 262235

P. O. Box 1457 Gainesville, GA 30503 ATTORNEYS FOR THE (770) 532.6312 PLAINTIFF-CONDEMNOR

TLF/llc/W182551

Chapter 85 of 66


STATE OF GEORGIA


BRIEF IN SUPPORT OF PLAINTIFF-CONDEMNOR’S FIRST MOTION IN LIMINE

COMES NOW, the Department of Transportation, Plaintiff-Condemnor, in the above-

styled action, and hereby files this brief in support of its motion in limine. Plaintiff-Condemnor

shall address each of the numbered paragraphs in its motion and provide citations to legal

authority in support thereof separately below:

1. Any evidence involving a real estate sales contract or a lease of property, unless the

court can review the contract and make a determination as to its validity.

Signed, executory contracts are admissible as a basis of an expert's opinion under the

holding of Cochran v. Dept. of Transp., 160 Ga. App. 583, 584 (1981), but only after the contract

has been submitted to the court for a legal determination as to whether it is indeed a valid

contract, for if it is a mere option, then it is inadmissible. Jordan v. Dept. of Transp., 178 Ga.

App. 133, 134 (1986). To allow an appraiser to testify without first having the court evaluate the

Chapter 86 of 66

contract is tantamount to allowing the appraiser to make a legal ruling in lieu of the Court.

Accordingly, evidence involving a real estate sales contract or lease of property is not admissible

unless the Court has first reviewed it and declared it to be valid.

2. Losses occurring to property before the actual date of acquisition are not

compensable in condemnation actions, nor is diminution in value as a result of any

anticipated condemnation, losses incurred due to a loss of any tenant, or rental

income prior to the date of acquisition, or losses allegedly due to the property being

"unrentable" because of the anticipated condemnation

The Georgia Supreme Court has held that "losses 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. vs. Department of Transportation, 256 Ga. 749 (1987). See also:

Housing Authority of Decatur vs. Schroeder, 222 Ga. 417 (1966). Further, "[s]ince the

compensation to be paid for property condemned is to be determined by its value at the time of

its actual taking, a jury cannot consider the value at the time prior to the actual time of taking

[Cit.]." Will-Ed Enterprises, Inc. vs. MARTA, 139 Ga. App. 829 (1976). "That the condemnees

were unable to rent the improvements on the property once the condemnor announced its’ plans

to take the property is a loss which is not compensable. [Cits.]." Collins vs. MARTA, 163 Ga.

App. 168, 170 (6) (1982). See also: Department of Transportation vs. Petkas, 189 Ga. App. 633,

638-639 (1988); Canada West, Ltd. vs. City of Atlanta, 169 Ga. App. 907, 909 (1984); Antique

Center of Roswell vs. City of Roswell, 196 Ga. App. 894, 895 (4) (1990). Pursuant to these clear

rulings, all evidence as to a diminution in value to the subject property occurring before the

actual date of acquisition, or occurring as a result of the anticipated condemnation prior to the

Chapter 87 of 66

actual date of acquisition, or which involve losses incurred prior to the actual date of acquisition,

such as the loss of any tenant or rental income, or involving losses prior to the date of acquisition

as to the property being "unrentable” should be excluded.

3. Forced sales or awards in other condemnation proceedings are not admissible.

Forced sales, or payments by an authority with the power of eminent domain to purchase

property interests for a project, and awards in other condemnation proceedings are not admissible

as comparable sales under Georgia law. Georgia Power Company v Brooks, 207 Ga. 406, 410

(1950); City of Atlanta v Brookins, 147 Ga. App. 869 (1978). Even evidence as to an exchange

of property between a condemnor and another condemnee is inadmissible as to the issue of

value, since such an exchange transaction is not necessarily free from compulsion. Collins v

MARTA, 163 Ga. App. 168 (1982). Further, the Georgia Court of Appeals has held that such

land sales to a condemning authority are inadmissible either as direct or indirect evidence of

value of the property sought to be condemned. Jordan v Department of Transportation, 178 Ga.

App. 133 (1986). For this reason, any evidence of forced sales or purchases by any entity that

has the power of eminent domain should be excluded.

4. Evidence indicating that the project in question is federally funded or that the State

should follow the rules for acquiring property of a federally-funded project is

irrelevant and inadmissible.

The Georgia Court of Appeals, in Jackson v Department of Transportation, 159 Ga. App.

130, 132 (1981), held that it was proper for the trial court "to exclude as irrelevant evidence that

the project in question is federally funded or that the State should follow the rules for acquiring

property of a federally-funded project." Id. Therefore, evidence that the project in question is,

or could be, federally funded, or that the condemnor should follow the rules for acquiring

Chapter 88 of 66

property for a federally-funded project should be excluded.

5. Statements by condemnee as to the estimate of value for the acquisition filed with

the declaration of taking should be excluded.

The Georgia Court of Appeals has held that the condemnor's appraisal affidavit, provided

for in O.C.G.A. §32-3-6(b)(5), is not admissible evidence of value in a trial. Further, the

affidavit signifies an "estimated" value and represents an opinion rather than a conclusion of fact.

The Court has further held that the affidavit does not constitute an admission in judicio. It is not

binding upon the condemnor in a subsequent de novo proceeding to establish the value of the

property acquired. Aiken v Department of Transportation, 171 Ga. App. 154, 155 (1983);

Morrison v Department of Transportation, 166 Ga. App. 144 (1983). Therefore, condemnees

should not be permitted to make references, negative or otherwise, to the estimate of value

included within the original declaration of taking.

6. Any evidence that a witness called by the Defendant-Condemnee was previously

employed by Plaintiff-Condemnor.

The Georgia Court of Appeals has held that while a condemnee may call as a witness an

appraiser originally hired by the condemnor (but whom the condemnor declined to list as a

witness), the condemnee may not elicit testimony regarding the fact that the appraiser had been

originally hired by the opposing party. H.D. McCondichie Properties v. Georgia Dept. of

Transp., 280 Ga. App. 197, 198 (2006) (“The issue of who hired a particular expert had nothing

to do with the questions being tried [just and adequate compensation for the property taken], and

the trial court properly excluded this evidence at trial.”). Accordingly, Condemnees in this case

who may choose to call as their witness an appraiser who was originally hired by the Condemnor

should not be permitted to elicit testimony regarding the appraiser’s prior employment by the

Chapter 89 of 66

Condemnor.

7. Any evidence of temporary inconvenience due to the construction of the project,

including, but not limited to disruption, debris, smoke and noise.

The Georgia Court of Appeals has held: "[d]amages caused by mere temporary

inconvenience due to the construction of the project for which the property was taken is not a

proper element for consideration in determining just and adequate compensation for condemned

realty." Department of Transportation v Dent, 142 Ga. App. 94 (1977). See also: Hillman v

Department of Transportation, 257 Ga. 338, 339 (1987). Further, the Georgia Court of Appeals

has expressly noted that: "It clearly is the law of this State that damages caused by the

construction process by a public project upon private property affected by condemnation cannot

be considered in determining consequential damages." Canada West, Ltd. v City of Atlanta, 169

Ga. App. 907, 910 (1984).

Damages to the improvements arising from negligent construction, including the effects

of blasting or other construction, is inappropriate for consideration in a condemnation action.

The owner may, however, assert such a claim in a separate suit. Georgia Power v Jones, 122 Ga.

App. 614 (1970). Therefore, evidence as to temporary inconvenience due to the construction

process, including inconvenience caused by the construction period, is inadmissible and should

be excluded.

8. Express references to the subject property using the term "unique" and express

opinions that the subject property is "unique" are inadmissible.

The Georgia Court of Appeals has held that a trial court may properly prohibit witnesses

from testifying or stating that the subject property is "unique." Such testimony by an expert

Chapter 810 of 66

transcends the functions of a witness, states a legal conclusion, and usurps the function of the

jury. Department of Transportation v Franco's Pizza and Delicatessen, Inc., 200 Ga. App. 723,

726 (1991), overruled on other grounds by White v. Fulton County, 264 Ga. 393, 394+ (1994);

see also Brown v Department of Transportation, 194 Ga. App. 530 (1990). Therefore, a witness,

even an expert, may not state or testify that the subject property is "unique." All express use or

testimony by a witness that the subject property is "unique" is inadmissible.

9. Any evidence of alleged "bad faith" on the part of Condemnor.

According to O.C.G.A. §32-3-16(b), the parties have a right to introduce evidence of fair

market value of the property, just and adequate compensation, consequential damages, and

consequential benefits. There is no statutory authority for introduction of evidence on any other

issue. According to the Court in Jotin Realty Company, Inc. v Dept. of Transportation, 174 Ga.

App. 809, 810 (1985),

The law regarding highway takings expressly provides that when appeal is made by the condemnee, “it shall be the duty of the court...to cause an issue to be made and tried by a jury as to the value of the property or interest taken....”' O.C.G.A. § 32-3-16(a). The “value” referred to is “the fair market value of the property or interest taken.” O.C.G.A. § 32-3-16(b)(1). Thus, the procedural statute provides a de novo investigation [jury trial] with the right of either party, under the rules of evidence as provided for in the general laws of this state, to introduce evidence concerning: (1) The fair market value of the property or interest taken or other evidence of just and adequate compensation. O.C.G.A. § 32-3-16(b)(1). In Dept. of Transportation v. Petkas, 189 Ga. App. 633, 638-639 (1988), the trial court

allowed the condemnees to introduce evidence regarding changes by the DOT in its plans for the

property prior to the date of taking. On appeal, the Court held that "the only relevant inquiry was

the value of the property on the date of taking." The Court explained why the introduction of

other evidence was grounds for reversal, “[t]he inadmissible evidence undoubtedly caused the

jury to infer that DOT was somehow guilty of pre-taking bad faith, and that such bad faith should

Chapter 811 of 66

be given consideration in the determination of the value of the property on the date of actual

taking.” The Court added, “[b]y the admission of this evidence, the condemnees were

erroneously allowed to raise allegations of DOT's pre-taking `bad faith... in a forum in which the

sole issue [was] just and adequate compensation [as of the date of taking].’” As stated in Antique

Center of Roswell, Inc. v. City of Roswell, 196 Ga. App. 894, 895 (1990), “[a] diminution in

value which occurs as the result of an anticipated condemnation is not compensable, and it has

been held that evidence of such a diminution in value resulting from the alleged conduct of the

condemnor cannot be introduced for the purpose of proving bad faith on the part of the

condemnor.”

There is an adequate remedy at law provided by O.C.G.A. § 32-3-11 if there is a question

of fraud or bad faith on the part of the condemnor. In Dept. of Transp. v. Franco's Pizza &

Delicatessen, Inc., 164 Ga. App. 497, 498 (1982), the Court held that

Code Ann. § 95A-607 [O.C.G.A. § 32-3-11] provides the procedural framework and the remedy for a condemnee who wishes to question the good faith of a condemnor. Appellee [condemnee], however, did not avail itself of the § 95A-607 procedure, which empowers the trial court to “set aside, vacate, and annul the said declaration of taking, together with any title acquired thereby...” Thus, appellee had a forum in which to air its allegations of fraud and bad faith and seek a remedy. Its failure to avail itself of that opportunity does not entitle it now to bring up its allegations of bad faith and fraud in a forum in which the sole issue is just and adequate compensation.

10. Any evidence concerning negotiations for the acquisition of the subject parcel either

before or after the date of taking.

Statutory law clearly provides that "[a]Admissions or propositions made with a view to a

compromise are not proper evidence." O.C.G.A. § 24-3-37. Georgia courts have perceived that

allowing such testimony is "inherently harmful," will prejudice the jury, and discourages

Chapter 812 of 66

attempts to resolve a case without going to trial. Central National Insurance v. Dixon, 188 Ga.

App. 680, 682 (1988). Condemnor has considered certain plan changes to minimize damages to

the remainder in the course of negotiating a settlement. Any such proposals for consideration

should be excluded.

11. Any evidence of injuries to feelings or sentimental damages. Evidence of speculative, sentimental, whimsical or any other value not capable of

mathematical calculation is inadmissible. Housing Authority of Savannah v. Savannah Iron &

Wire Works, Inc., 91 Ga. App. 881, 886 (1955). The property owner's unwillingness to part with

the property is also inadmissible. Fountain v. MARTA, 147 Ga. App. 465, 470 (1978).

12. Condemnee may not recover consequential damages for changes in traffic pattern

or road design and such evidence should be excluded.

Defendant-Condemnee may attempt to present evidence that the project will increase

traffic, create an unsafe intersection, and otherwise damage the remainder of the property at

issue. Where the change in traffic patterns does not interfere with condemnee's ingress and

egress, the damages are not special, but are the same kind suffered by the general public and are

not compensable. Dept. of Transp. v. Katz, 169 Ga. App. 310, 312 (1983). Furthermore, the

regulation of traffic is a governmental function in which property owners have no vested interest;

it is the duty of the entity authorized to regulate traffic to change the traffic pattern to facilitate

traffic flow and public safety. Department of Transportation v Consolidated Equities Corp., 181

Ga. App. 672, 675 (1987).

13. Evidence of the post-taking assignment of a leasehold interest in the subject

property is inadmissible.

Chapter 813 of 66

The Court of Appeals has held that evidence of a post-taking assignment of a leasehold

interest is not relevant to the determination of fair market value of the subject property on the

date of taking. DOT v. Mendel, 237 Ga. App. 900, 901 (1999). “Just compensation must be

based on the value of the rights taken, without regard to the owner’s personal relationship to the

property taken.” Id. at 901. In the case at bar, the Condemnees may attempt to introduce

evidence of a post-taking assignment concerning a leasehold interest in the subject property, and

pursuant to Mendel, supra, such evidence should be deemed to be irrelevant and inadmissible.

14. Summaries of an expert witness's opinion or testimony and hearsay evidence upon

which an expert witness bases his opinion are not admissible into evidence.

The Georgia Court of Appeals has held that summaries of the testimony of an expert

witness's opinion may properly be excluded from the evidentiary record; "[t]he best evidence of

the expert witness's opinion of the cost of reconstruction was his own testimony to that effect,

not the worksheet which he had prepared in order to assist him in presenting the testimony."

Housing Authority of Atlanta v Goolsby, 136 Ga. App. 156 (1975). To allow such

demonstrative evidence into the jury room would be to give undue emphasis to the testimony,

and it is for this reason why depositions are read into evidence and not sent out with the jury. Id.

Further, while an expert appraiser has a right to state the facts upon which the appraiser bases his

opinion, even if such facts are hearsay, the hearsay itself is not admissible as direct proof of

value. McDaniel v Department of Transportation, 200 Ga. App. 674, 675-676 (1991); White v

Georgia Power Company, 237 Ga. 341, 345-346 (3) (1976), overruled on other grounds, by

DeKalb County v Trustees, Decatur Lodge No. 1602, B.P.O. Elks, 242 Ga. 707 (1978);

Department of Transportation v Schiffer, 178 Ga. App. 414, 415 (1986). Therefore, while the

expert appraiser may explain the basis for the appraiser's opinion, including relying upon

Chapter 814 of 66

hearsay, the hearsay itself is not directly admissible into evidence, other than by the expert

appraiser discussing the basis of the expert's opinion. For these reasons, any summaries of the

expert opinion of any expert of the Condemnee are not admissible; and any hearsay upon which

the Condemnee’s expert appraiser bases the expert's opinion is not directly admissible, and the

expert appraiser may merely refer to such hearsay in the explanation of the expert's opinion.

15. Any and all evidence concerning the appraisal of the subject property in any

condition other than the condition in which it was in on the date of taking, including

evidence of an agreement or assignment of interest in the litigation, or any award

arising therefrom, which occurred after the date of taking.

It is black letter law that just and adequate compensation for the acquisition of property

must be determined in light of its condition on the date of taking. Housing Auth. of City of

Decatur v. Schroeder, 222 Ga. 417 (1966); Hard v. Housing Auth. of the City of Atlanta, 219 Ga.

74 (1963). The parties may not value the property as of any other point in time, nor may they

value the property in a speculative condition, or in a condition that is not reasonably probable

will occur, as condemnees seek to do here. Josh Cabaret v. Dept. of Transp., 256 Ga. 749

(1987); State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (1969).

Furthermore, if there has been an assignment of interest not in existence on the date of

taking, it is irrelevant, as it is not probative of the value of the property on the date of taking.

City of Dalton v. Smith, 210 Ga. App. 858, 859 (1993). Any evidence of the assignment is

therefore inadmissible.

16. Any and all evidence concerning the description of the completed road

improvements (especially the driveway access) except as it will actually be

constructed upon completion of the project.

Chapter 815 of 66

While the property must be valued in its condition upon the date of taking, it must also be

valued in light of the road improvements as they will appear upon completion as designed and

constructed in a non-negligent manner. The Court in Simon v. Department of Transportation,

245 Ga. 478 (1980), held that "[T]here are only two elements of damages to be considered in a

condemnation proceeding: First, the market value of the property actually taken; second, the

consequential damage that will naturally and proximately arise to the remainder of the owner's

property from the taking of the part which is taken and the devoting of it to the purposes for

which it is condemned . . . ." (emphasis added). The effect of the completed road

improvements should be considered in determining consequential damages, even though the

work is not actually completed either on the date of taking or at the time of trial. Williams v.

State Hwy. Dept., 124 Ga. App. 645 (1971).

All effects of the proper construction of the road improvements may be asserted in the

condemnation action for the purpose of calculating consequential damages. State Hwy. Dept. v.

Kaylor, 110 Ga. App. 46, 48 (1964). Consequential damages which have been caused by

negligent or improper construction of the road improvements may not be asserted in the

condemnation action; condemnee has a remedy for such damages which may be raised in a

separate suit. McArthur v. State Hwy. Dept., 85 Ga. App. 500 (1952).

17. Any evidence of ad valorem property tax assessment or return to show the value of

the subject property.

The Court of Appeals has clearly held that "[t]he value of property, as assessed by a

taxing authority, is inadmissible as hearsay unless evaluation on the tax return is shown to be

made by the taxpayer himself or unless used for purposes of impeachment." DeKalb County v.

Queen, 135 Ga. App. 307 (1975).

Chapter 816 of 66

18. Any evidence as to a "cost to cure" which represents a cost valuation after the date

of taking.

Plaintiff-Condemnor anticipates that Defendant-Condemnee may seek to introduce

evidence at trial as to the "cost-to-cure" at a later time than the time of taking. Although

evidence as to the cost to cure may be admissible in a partial taking case to show consequential

damages to the remainder, a trial court errs when it allows "evidence as to the cost to cure at the

time of trial rather than the cost to cure at the time of the taking." Department of Transportation

v. Metts, 208 Ga. App. 401, 403 (1993). In Metts, the Court of Appeals stressed that:

the diminution in value of the remainder that is the measure of consequential damages should be measured as of the date of the taking....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. Id.

Any evidence as to the cost to cure which represents a cost valuation after the date of

taking is inadmissible and should be excluded.

19. Any and all evidence regarding or related to the existence of "sound walls" or

"noise walls", or the construction or planned construction by Condemnor of "sound

walls" or "noise walls" on parts of the Project not owned by Condemnees, including

any evidence concerning or relating to environmental or other studies concerning

the need for or construction of sound or noise walls on such non-adjacent or non-

contiguous property, any evidence concerning or relating to the reasons why such

noise or sound walls were required or will be required to be constructed on such

property, the existence or interpretation of any federal regulations requiring the

Chapter 817 of 66

construction or placement of such walls, and any evidence collected during such

studies which was not related to the noise or sound levels of the Project on the

Remainder property.

Plaintiff-Condemnor anticipates that Defendant-Condemnee may attempt to elicit

testimony at trial concerning the Plaintiff-Condemnor's intention to construct a sound wall on

Condemnor-owned right-of-way between the road to be constructed and certain residential

dwellings located on the opposite side of the road from the Subject Property and Condemnee's

remaining property (hereinafter the "Remainder"). Currently, the plans for the Project do not

include the construction of a sound wall on Condemnor's right-of-way between the road to be

constructed and the Remainder.

Such evidence is irrelevant and inadmissible in this action. As stated in Simon v.

Department of Transportation, 245 Ga. 478 (1980), "[T]here are only two elements of damages

to be considered in a condemnation proceeding: First, the market value of the property actually

taken; second, the consequential damage that will naturally and proximately arise to the

remainder of the owner's property from the taking of the part which is taken and the devoting of

it to the purposes for which it is condemned . . . ." As a result, any evidence regarding the

Condemnor's construction of sound walls between the road and another property is inadmissible.

Georgia law is clear that evidence concerning sales between the Condemnor and third parties for

other property is inadmissible. Georgia Power Company v. Brooks, 207 Ga. 406 (1950). By

simple analogy, it seems just as clear that evidence concerning the Project's effect on other

parcels is likewise inadmissible. The Condemnor's plan to construct a sound wall adjacent to a

third party's property has no relevance or connection to the issues involved in this action. Any

attempt by Condemnee to introduce evidence of the Condemnor's intention to construct a sound

Chapter 818 of 66

wall adjacent to a third party's remaining property is, in effect, an effort by Condemnee to show

that Condemnor's intent not to build a wall adjacent to the remainder results in damages to

Condemnee. This effort is not allowed. Department of Transportation v. Simon, 151 Ga. App.

807 (1979).

The Condemnee is not allowed, in this action, to support its claim for damages by

introducing evidence of the Project's effect on other properties. Id.; See also Georgia Power

Company v. Bray, 232 Ga. 558 (1974). By way of example, Condemnor asserts that

Condemnee's effort to introduce evidence regarding the effect of the Project on other properties,

and any remedial construction planned by Condemnor regarding those effects on other properties

(i.e. construction of a sound wall), is no different than a condemnee with restricted access

attempting to prove damages to its remainder by introducing evidence of less limited access to a

third party's property, either as a result of the effect of the construction of the Project or through

negotiation by the third party and a condemnor ("he got it, why can't I get it"). Such evidence

has no relevance to the issues to be determined in this action, i.e., "the market value of the

property actually taken . . ., and the consequential damage that will naturally and proximately

arise to the remainder of the owner's property from the taking of that which is taken and the

devoting of it to the purposes for which it is condemned." Simon v. Department of

Transportation, Supra (emphasis added).

Furthermore, any attempt by Condemnee to introduce evidence concerning the

construction of sound walls between the road and other property, or its intention not to construct

sound walls adjacent to the Remainder, would be an impermissible effort to prove damages for

negligent or improper construction of the Project. Such evidence is inadmissible in this action.

Hollywood Baptist Church of Rome v. State Highway Department, 114 Ga. App. 98 (1966).

Chapter 819 of 66

20. Any evidence concerning or related to the reasons "why" Condemnor will construct

the Project as contemplated or planned, including any evidence as to "why"

Condemnor will construct the Project with or without sound or noise walls.

Any evidence concerning "why" the Condemnor's plans for construction of the Project

include sound walls adjacent to other properties or "why" the plans do not include a sound wall

adjacent to the Remainder is inadmissible for the same reasons as delineated above. The sole

issues for determination in this action are the value of the property acquired, and the

consequential damages that naturally arise from the acquisition. Department of Transportation v.

Simon, Supra.

21. Evidence of the construction of a median on the subject road project in support of a

claim for consequential damages to the remainder is inadmissible.

In Cobb County v. Princeton Associates, 205 Ga. App. 72 (1992), and Dougherty County

v. Snelling, 132 Ga. App. 540 (1974), the Court of Appeals held that damages for installation of

a median are not compensable. The rationale, as expressed in the Snelling case, is that

construction of a median is a governmental duty for the purpose of traffic flow and safety, and no

private party has a vested interest in "keeping the [traffic] pattern continuously without change",

Id. at 544. Furthermore, the median affects all the public in the same manner. “A damage

suffered by a condemnee which is different from that suffered by the general public in degree

only, and not in kind, is not compensable or recoverable. [Cits.]" Id.

22. As a corollary of the forgoing, evidence of negotiations regarding construction of a

Chapter 820 of 66

median crossover in an attempt to compromise a claim is inadmissible.

According to O.C.G.A. § 24-3-37, “[a]dmissions obtained by constraint, by fraud, or by

drunkenness induced for the purpose or admissions or propositions made with a view to a

compromise are not proper evidence.” The Court in Central National Insurance Company of

Omaha v Dixon, 188 Ga. App. 680 (1988), summarized the theory behind the rule as follows:

The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing them as to the weight to be given such evidence. [Cits.] See also Computer Communications Specialists, Inc. v Hall, 188 Ga. App. 545 (1988). Testimony of any offer by the DOT to construct median crossovers to settle the matter or

any sums of money offered for the same purpose are "propositions with a view to compromise a

claim" and are inadmissible pursuant to O.C.G.A. § 24-3-37.

23. Evidence of the cost of constructing a deceleration lane for a commercial driveway,

in support of a loss of access claim for consequential damages, is inadmissible.

A property owner is not entitled to unlimited access to the public highway at all points

along his boundary with the road. Johnson v. Burke County, 101 Ga. App. 747, 748 (1960).

Furthermore, O.C.G.A. § 32-6-131 requires that every property owner must obtain a permit for

the construction of a new commercial driveway on a state route, and further stipulates that the

permits must be supplied by the DOT in response to any reasonable request. As a result, the

access rights needed for commercial development are the same, both before the acquisition and

after the acquisition, and any alleged impairment of access is a result of the permitting process

Chapter 821 of 66

and does not flow from the acquisition. In a condemnation action, consequential damages are

limited to those damages that naturally and proximately arise to the remaining property from the

taking of the property. Simon v. Dept. of Transportation, 245 Ga. 478 (1980).

24. Photographs or videotapes of the roadway or adjacent property that were taken

during the construction process are not admissible as evidence in a condemnation

trial.

The Court of Appeals in Theo et al. v. Dept. of Transp., 160 Ga.App.518 (1981), upheld a

trial court's exclusion of photographs taken of the road and nearby property during the

construction process. The Court held that there is a "well-established rule that 'damages caused

by mere temporary inconvenience due to the construction of the project ... is not a proper

element for consideration in determining just and adequate compensation...' [Cit.] ". The Court

went on to note that photographs taken before and after the construction process were ample to

"make the point".

The situation is analogous to one faced by the Court in Eiland v. State, 130 Ga. App. 428

(1973). In Eiland, the evidence in question was a movie of the inaccurate reenactment of a

crime; in the instant case, the evidence is photographs or a video depicting the subject property,

when, for a brief period of time, it is drastically unlike the appearance it has had in the past, and

drastically unlike the appearance it will have in the future. The Court in Eiland realized the

power of a picture, and noted that:

'A motion picture of the artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution.' [Cit.]. Id. at 429.

The Court also held as follows:

Chapter 822 of 66

...photographs and especially movies which are posed, which are substantially different from the facts of the case (Emphasis added), and which because of the differences might well be prejudicial and misleading to the jury, should not be used, and this is especially true where the situation or the event sought to be depicted is simple, the testimony adequate, and the picture adds nothing except the visual image to the mental image already produced. Id. at 429.

Plaintiff-Condemnor suggests that pre-construction photographs of the subject property

coupled with plans of the property will be ample to join the visual image to the mental image

produced by the testimony of expert witnesses.

25. Evidence as to the value of the property if subdivided where, on the date of taking,

the property has neither been subdivided, nor is such a use a reasonably probable

use, is inadmissible.

In Colonial Pipeline Co. v Williams, the Georgia Court of Appeals held that an expert

“could not testify as to the value before and after the taking based upon his assumption of the

value as if the property had already been subdivided.” Colonial Pipeline Co. v Williams, 206

Ga. App. 303 at 305 (1992). The court did state that an expert could testify “to his opinion of

the value of the remaining land as of the date of taking based upon its enhanced values because

of its adaptability as a residential subdivision.” Id. at 305 (1992). However, this testimony is not

without limits. Where an expert gives his opinion without reasons or where the reasons are

speculative in support of his opinion, “his opinion is without foundation and without probative

value.” Id. at 305 (1992).

Two years later in Department of Transportation v Benton, the Georgia Court of Appeals

considered the taking of part of an undivided, unimproved 123.28-acre tract. Department of

Chapter 823 of 66

Transportation v Benton, 214 Ga. App. 221 (1994). In this case the court stated that “the fact that

the property is merely adaptable to a different use is not in itself a sufficient showing in law to

consider such different use as a basis for compensation; it must be shown that such use of the

property is so reasonably probable as to have an effect on the present value of the land.” Id. at

222 (1994).

The court went on to say that “[even] where a different use is probable, the jury cannot

evaluate the property as though the new use were an accomplished fact, the jury can only

consider the new use to the extent that it affects the market value of on the date of taking.”

Department of Transportation v Benton, 214 Ga. App. 221 (1994). For these reasons, any

evidence of land valuation based on a subdivided lot as an acquisition tract should be excluded.

26. Aintree County Ordinance 66-143 is not applicable to the facts of this case, such that

any evidence of the Ordinance is inadmissible at the trial of this case.

Condemnee Hubert (hereinafter “Hubert”) has identified as a potential expert witness Mr.

John Doe to give an opinion as to the consequential damages suffered by Hubert. At deposition,

Mr. Doe testified that one issue he considered in formulating a consequential damages amount

was a Aintree County subdivision regulation, Ordinance 66-148, (Doe Dep., at __), which

prohibits roadway grade in excess of 8%. In addition, Condemnee has identified Article V of the

Aintree County Ordinances as evidence in its submission to the consolidated pretrial order.

Article V is attached hereto as Exhibit “A”. The Article, and the Ordinance thereunder, is

inapplicable in this case for two independent reasons.

First, under O.C.G.A. 32-4-1, public roads of Georgia are divided into and classified by

three types of classification: State Highway System, County Road System, and Municipal Street

System. Under O.C.G.A. 32-2-2, the powers and duties of the Department of Transportation

Chapter 824 of 66

(“DOT”) include management, control and maintenance of the state highway system. O.C.G.A.

32-2-2-(a)(1). The powers of the county, set forth in O.C.G.A. 32-4-42, “with respect to it

county road system” include the authority to adopt and enforce rules, regulations, or

ordinances…which are necessary, proper, or incidental to the efficient operation and

development of the county road system.” O.C.G.A. 32-4-42(10). The county’s power to regulate

is limited by the plain language of the statute to “the county road system.” Since the highway at

issue here, State Route 17, is part of the State Highway System, the DOT has the power to

regulate it; Aintree County does not. Therefore, even assuming the regulation at issue addressed

driveways, which Mr. Doe suggested it did (Doe Dep., at __), the County does not have the

power to regulate the highway at issue because it is part of the State Highway System, which is

the DOT’s domain.

Second, the Article and Ordinance at issue does not apply to driveways. Section 66-148

of the Aintree County subdivision regulations is entitled “Street right-of-way widths and

construction requirements.” Under subsection (b), the regulation addresses “roadway” and states

the “maximum grade shall not exceed 8 percent.” There is no mention of a driveway in the

regulation. The definition of “street” under the Aintree County Code is found in Section 66-4:

“Street means a way for vehicular traffic which serves as access for a ‘subdivision’ as hereinafter

defined, however designated, whether as an avenue, boulevard, road, highway, expressway, lane,

alley, public or private easement, or other way.” Streets are also divided into the following

categories: rural principal and minor arterial; rural major and minor collector; rural local routes;

alley; cul-de-sac; and marginal access street. Because Ordinance 66-148 applies to “street right-

of-ways” and there is no indication that street in any way means driveway, Mr. Doe’s suggestion

that the regulation restricts the grade of driveways is erroneous.

Chapter 825 of 66

This Court, rather than Condemnee’s witness, is vested with the power to properly

construe the Aintree County Ordinance at issue. See Hinson v. Department of Transportation,

135 Ga. App. 258 (1975), in which the Court of Appeals held the proper construction of a zoning

regulation was a matter for the court, such that it was prejudicial error to allow condemnee’s

witness to interpret the meaning of the County zoning ordinance. Id. at 261. Because the

construction of a County ordinance under the facts is a question of law for the courts, Id. at 260,

Chapter 826 of 66

this Court must determine that, under the foregoing reasons, Ordinance 66-148 does not apply to

driveways and thus is inapplicable in this case.

The Article and the Ordinance do not apply in this case where the property is located on a

State Highway System and where, by its plain terms, it does not address driveways (the reason

the witness stated he believed it was applicable). Therefore, any evidence of Article V and

Ordinance 66-148 should be ruled inadmissible prior to trial. For the foregoing reasons,

Condemnor’s Motion in Limine should be granted as to any evidence regarding Aintree County

Article V and Ordinance 66-148.

WHEREFORE, for the reasons set forth above, Plaintiff-Condemnor respectfully

requests that the court enter an order granting the following relief:

(a) Scheduling hearing on Plaintiff-Condemnor’s Motion in Limine;

(b) After such hearing, enter an order granting Plaintiff-Condemnor’s Motion in Limine; and

(c) For such other and further relief as the Court deems just. Respectfully submitted, this ______ day of _______________, 20___.

HULSEY, OLIVER & MAHAR

By:___________________________________ Thomas L. Fitzgerald Georgia State Bar No. 262235 ATTORNEYS FOR THE PLAINTIFF-CONDEMNOR

P. O. Box 1457 Gainesville, GA 30503 770.532.6312

TLF//llc/W182551

Chapter 827 of 66


STATE OF GEORGIA


[INSERT CAPTION ON ALL SUBSEQUENT PAGES.] PLAINTIFF-CONDEMNOR'S REQUESTS TO CHARGE

COMES NOW, Condemnor, and requests the Court to charge the Requests to Charge

submitted herein.

Respectfully Submitted, HULSEY, OLIVER & MAHAR, LLP

By:____________________________________ Thomas L. Fitzgerald Georgia Bar No. 262235

ATTORNEYS FOR PLAINTIFF- CONDEMNOR

P.O. Box 1457 Gainesville, Georgia 30503 (770) 532-6312

TLF/llc/W182551

Chapter 828 of 66

CONDEMNOR'S REQUEST TO CHARGE NO.______

We have been trying what is known as a condemnation case between Department of

Transportation, Plaintiff (Condemnor), and, Hubert Theatre Group, Inc. and Hubert Theatre

Properties, LLC, Defendants (Condemnees).

The lawsuit the plaintiff has filed for this purpose is called the complaint. It says in

substance that plaintiff has taken (title to) (an easement for ______ purpose over) a described

tract of defendant’s land (and, if applicable, in a highway condemnation), together with slope

and drainage easements.

14.010 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

CONDEMNOR'S REQUEST TO CHARGE NO. ______

Under the law and under the constitution of this state, plaintiff has the right to take (or

damage) private property for a public purpose, provided that it pays just and adequate

compensation for the property taken. The only question is, “What constitutes just and adequate

compensation for the property taken?” By “property,” I mean all property rights of any kind.

Property rights are determined as of the date plaintiff condemned the rights, which is August 28,

2016..

Ga. Const. 1983, art. I, sec. III, para. 1 O.C.G.A. §22-1-6 Gate City Terminal Co. V. Thrower, 136 Ga. 456,464 (1911) 14.020 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 829 of 66


The law puts the burden of proof upon the condemnor to prove by a preponderance of

evidence what amount of money constitutes just and adequate compensation for the property

taken. While the burden of proof is upon the condemning authority, the owner of the property is

also allowed to offer evidence upon the issues involved, and you must determine the issues in the

case by the preponderance of evidence as you find it to be.

O.C.G.A. § 24-4-1 Streyer v. Georgia Southern & Florida Railroad Co., 90 Ga. 56 (1892) Andrus v. State Highway Department, 93 Ga. App. 827,828 (1956) State Highway Board of Ga. v. Shierling, 51 Ga. App. 935 (1935) Georgia Power Co. v. McCrea, 46 Ga. App. 279 (1933) Georgia Power Co. v. Smith, 94 Ga. App. 166 (1956); cited to note “burden of proof”

following O.C.G.A. §22-2-80 14.030 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)


Condemnor must prove its case by what is known as a preponderance of the evidence; that is,

that superior weight of evidence upon the issues involved that, while not enough to wholly free

the mind from a reasonable doubt, would be sufficient to incline a reasonable and impartial mind

to one side of the issue rather than the other.

O.C.G.A. §24-1-1(5) 14.031 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 830 of 66


Condemnor must prove its case by what is known as a preponderance of the evidence; that is,

that superior weight of evidence upon the issues involved that, while not enough to wholly free

the mind from a reasonable doubt, would be sufficient to incline a reasonable and impartial mind

to one side of the issue rather than the other.

O.C.G.A. §24-1-1-(5) 14.032 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)


There are two kinds of damage to be considered in this condemnation. The first pertains to

the property actually taken or used by the condemnor and is called direct damages.



Property that is taken refers to whatever interest in the property is being taken by the

condemnor, whether it is the entire ownership of it or the right to use it for a special purpose,

which is called an easement, or both, when both types of property are condemned in the same

lawsuit.


Chapter 831 of 66


The second kind of damage is called consequential damages and pertains to the property

the owner has left after the part the condemnor takes or uses is subtracted.



Concerning direct damages for the property taken or used, the “just and adequate”

compensation to which the defendant is entitled under the Georgia Constitution has been defined

as the actual value of his/her/its loss. The amount of compensation for these direct damages shall

never be less than actual value,

(Do not give the following charge in parentheses unless evidence supports it.)

(that is, the actual value for the direct damages shall never be reduced or offset by any

alleged benefits to the remaining property of the defendant.)

Ordinarily, actual value is the same as fair market value.

Ga. Const. 1983, art. I, sec. III, para. 1

State Highway Dept. v. Robinson, 103 Ga. App. 12 (1961); and cases cited thereto


(Note: If there are no consequential damages, skip to 14.150 Condemnation; Fair Market Value.)

Chapter 832 of 66


Consequential damage to the owner's property not taken is generally determined by figuring

the difference between the value of the remaining property immediately before the taking and its

value after the taking for a particular proposed improvement. This measure of consequential

damages should be made as of the date of taking. Another way of stating the proper measure of

consequential damages to the remainder of the owner's property is the decrease, if any, in the fair

market value of this remainder in its circumstance just prior to the time of the taking compared

with its fair market value in its new circumstance just after the time of the taking.

State Highway Dept. v. Howard, 124 Ga. App. 76 (1971)

Sumner v. State Highway Dept., 110 Ga. App. 646 (1964)

Wright v. MARTA, 248 Ga. 372 (1981)


Chapter 833 of 66


(Charge only when there is evidence of consequential benefits.)

In determining the amount of consequential damages, if any, you should consider whether

the condemnation will benefit the land the owner has left and, if so, reduce the consequential

damage by that amount. The reduced amount is the consequential damage. However,

consequential benefits must be disregarded to the extent that they exceed consequential damages;

that is, consequential benefits to the remaining property may be shown only as an offset against

consequential damages, not as an offset against the value of land actually taken or used.

(Note: When there is no evidence of any consequential benefits that accrued to the condemnee's remaining property, an instruction that consequential benefits can be deducted from consequential damages is reversible error.) Ball v. State Highway Dept., 108 Ga. App. 457 (1963) Dept. of Transp. v. Knight, 143 Ga. App. 748 (1977) Merritt v. Dept. of Transp., 147 Ga. App. 316 (1978); Merritt reversed, but on other grounds--attorney's fees 14.141 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 834 of 66


The benefits that can offset against or reduce consequential damage are what the law calls

special benefits rather than general benefits. A special benefit would be something that adds to

the convenience, accessibility, or usefulness of the property affected by the condemnation. It

could benefit the properties of other individuals and still be a special benefit within the meaning

of condemnation law. Examples of general benefits that you would not consider would be

increased general prosperity, value, beautifying the neighborhood, or benefits to through traffic.

Williams v. State Highway Dept., 124 Ga. App. 645, 646, & 647 (1971)



The defendant may not recover damages for mere inconvenience in the use of his/her/its

property resulting from a condemnation unless such inconvenience may be shown by the

evidence to affect the value of the defendant's remaining property as an item of consequential

damage.

Southwell v. State Highway Dept., 104 Ga. App. 479 (1961) and citations


Chapter 835 of 66


You are required to assume that the improvements made by the plaintiff will be made and

maintained in a careful and proper manner. Any damage that may result from the plaintiff's

failure to do so may be the basis of a suit for damages by the defendant against the plaintiff but

forms no part of this condemnation proceeding.

McArthur v. State Highway Dept., 85 Ga. App. 500 (1952) and citations

DeKalb County v. Cowan, 151 Ga. App. 753 (1979)



When a person is required to move his/her/its business as a result of land condemnation, that

person is entitled to recover loss of profits; loss, injury to, or decrease of business; and

reasonable expenses of moving the business, in addition to damages of any sort pertaining to

land value.

Bowers v. Fulton County, 221 Ga. 731 (1966)

DOT v. Gibson, 251 Ga. (1983)


Chapter 836 of 66


The damage to a business by the taking of a part of the land where it is conducted may be

considered in determining its effect upon the market value of the business property, but it is not a

separate item of damage. The measure of damages for the injury of the business would be the

difference in value of the business before and after the taking of the land, or any interest in it,

resulting from such taking.

Williams v. State Highway Dept., 124 Ga. App. 645, 647 (1971)

DOT v. Kendricks, 148 Ga.App. 242 (1978)



The fair market value of a piece of property is the price that it will bring when it is offered

for sale by one who desires, but is not obliged, to sell it and is bought by one who wishes to buy

but is not under a necessity to do so.

Central Georgia Power Co. v. Stone, 139 Ga. 416, 419 (1913) 14.200 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 837 of 66


Fair market value is a matter of opinion as to which you are entitled to consider both expert

and nonexpert testimony.

O.C.G.A. §24-9-66 14.210 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)


In this case, you heard the testimony of expert witnesses who gave you their opinion of the

value of the subject property taken in these proceedings. In giving this testimony, those expert

witnesses referred to the sales of other properties that influenced them in reaching their opinions.

Those other sales are not to be considered by you as direct evidence of the value of the subject

property but may be considered by the jury to determine the credibility of the witnesses and the

weight to be given to the experts' testimony.

White v. Georgia Power Co., 237 Ga. 341(5), 345-346 (1976)

Merritt v. Department of Transportation, 147 Ga. App. 316, 319 (1978)


Chapter 838 of 66


(This charge should be used only when authorized by the evidence.)

In estimating the value of land when taken for public uses, you are not restricted to the land's

agricultural or productive qualities, to the condition that the land is in, or to the uses to which it

is then applied by the owner. All of the capabilities of the property and all of the uses to which

the land may be applied or for which it is adapted are to be considered.

O.C.G.A. §22-2-62 Hard v. Housing Authority of The City of Atlanta, 219 Ga. 74, 80 (1963) 14.230 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 839 of 66



Although fair market value is ordinarily the same as actual value, there may be circumstances

in which it may not be the same, and under those circumstances your measure of damage would

be actual value. It is up to you to determine whether such circumstances exist.

State Highway Dept. v. Robinson, 103 Ga. App. 12 (1961) and numerous citations

State Highway Dept. v. Whitehurst, 106 Ga. App. 532 (1962)




You are entitled to consider the peculiar value of property to the owner under certain

conditions, but before you consider the peculiar value of property to the owner, you must find

that the relationship of the owner to it is peculiar, that its advantages to the owner are more or

less exclusive and would not be likely to apply to another owner.

You are only entitled to consider matters involving money value and not speculative,

sentimental, whimsical, or other value not capable of mathematical calculation.

City of Gainesville v. Chambers, 118 Ga.App. 25, 27 (1968) State Highway Dept. v. Robinson, 103 Ga. App. 12, 14 (1961) 14.250 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 840 of 66


In determining the amount of compensation, you may consider any increase (decrease) in the

value of the property affected as a result of the general knowledge of the condemnation that was

about to take place or the project that was to take place, if you find that there was such increase

(decrease).

Gate City Terminal Co. v. Thrower, 136 Ga. 456 (1911)

Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74 (1963)

Housing Authority of the City of Decatur v. Schroeder, 222 Ga. 417 (1966)



In determining the value of property, you are restricted to the uses that may be lawfully made

of it at the time of the taking as set out in zoning ordinances then in effect, unless there is a

possibility or a probability that a zoning ordinance will be repealed or amended so as to authorize

a more valuable use in the immediate future sufficient to have an effect on the value. If you find

that there is enough likelihood of change for you to consider it, you should not consider the

change as an accomplished fact but only the effect that the probability would have on the value.

Civils v. Fulton County, 108 Ga.App. 793 (1963) D.O.T. v. Sconyers, 151 Ga. App. 824 (1979) 14.270 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 841 of 66


(This charge should be used only when the jury has been allowed to view the condemned property.)

You have been permitted to view the condemned property and the remaining property of the

defendant. Please remember that condemnation is fixed as of the date of the taking whether the

property looks the same now or not. Your verdict must be based on sworn testimony. You may

apply any information gained from viewing the premises to the sworn testimony, but you may

not use your own conclusions from viewing the premises in place of sworn testimony.

State Highway Dept. v. Ga. v. Andrus, 212 Ga. 737 (1956) Weeks v. DeKalb County, 140 Ga. App. 15 (1976) 14.280 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)


A limited-access road is a public highway, road, or street for through traffic and over, from,

or to which owners or occupants of adjacent land or other persons have no right to easement or

only a limited right or easement of access, light, view, or air by reason of the fact that their

property borders on such limited-access highway, road, or street, or for any other reason.

O.C.G.A. §32-1-3 14.300 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 842 of 66


A limited-access highway is a special kind of highway provided for by law. A person

ordinarily has the right of access to a public road or highway that goes through the person's

property; that is, the right to go on or off the highway from or to the property, which is a property

right and for which the person is entitled to be paid if a condemnation takes away that right.

These rights do not pertain to limited-access highways, and the owner is not entitled to such

payments for the lack or absence of access rights.

(The next provision refers to interference with access to an existing road or highway and

should be charged only if applicable to the facts.)

If the construction of a limited-access highway interferes with the owner's access right, the

owner's right of access to an existing road would have to be taken into account, condemned, and

included in the owner's compensation for land actually taken.


Chapter 843 of 66


In determining the damages for the condemnation of land that is being leased, you would

need to determine both the amount of damages to the lessor (that is, the owner) and to the lessee

(that is, the person it is being leased to). Ordinarily, the total amount of such damage would not

exceed the total fair market value of the land. The measure of damages to the lessee (the person

it is being leased to) would ordinarily be the market value of the lease to the lessee (the person

leasing it), less the amount of rent payable under the lease. The remaining value of the lease to

the lessor (owner) would ordinarily be its rental value to him/her/it for the period of the lease,

plus the value of the reversion or the value of his/her/its future interest after the lease has ended.

If there are special damages, such as loss of profits and business or expenses for removal of

business or other matters that would make the fair market value test inadequate, you would

consider these matters in addition to the fair market value of the land in determining what is just

and adequate compensation for the lessor and the lessee.

Business losses are recoverable as a separate item of damages only if you believe from the

evidence that the property involved is unique.

MARTA v. Ply-Marts Inc., 144 Ga. App. 482 (1978)

D.O.T. v. Dixie Highway Bottle Shop Inc., 245 Ga. 314 (1980)

Unique property is property of a type not generally bought and sold on the open market.

Unique property is property that must be valued by something other than the fair market value

standard.

Chapter 844 of 66

Unique property may be measured by a variety of non-fair market methods of valuation,

including the cost and income methods.

Housing Authority of The City of Atlanta v. Southern Railway Co., 245 Ga. 229 (1980)

If the property is unique and the business belongs to the landowner, total destruction of the

business or permanent business loss at the location condemned must be proved before business

losses may be recovered as separate damages.

D.O.T. v. Dent, 142 Ga. App. 94 (1977)

D.O.T. v. Arnold, 243 Ga. App. 15 (2000)

If one person owns the property and leases it to another who operates a business on the

leased property, which is unique, the lessee may recover for business losses as damages separate

from the value of the leasehold whether the destruction of the lessee's business is total or partial,

provided the loss is proved with reasonable certainty and is not speculative or remote.

D.O.T. v. Kendricks, 148 Ga. App. 242 (1978) State Highway Dept. v. Thomas, 115 Ga. App. 372 (1967) McGhee v. Floyd County, 95 Ga. App. 221, 223 (1957) Housing Authority of Savannah v. Savannah Iron & Wire Works Inc., 91 Ga. App. 881

(1955) 14.400 Georgia Suggested Pattern Jury Charges, Vol. 1: Civil Cases (5th Ed.)

Chapter 845 of 66


The form of your verdict can only be, “We, the jury, find in favor of defendant the sum of

(blank) dollars.” You should insert such sum in dollars as you find shall be sufficient as just and

adequate compensation. You should add up all damages of every sort that the defendant is

entitled to, and the total sum would be the amount of your verdict.



In determining just and adequate compensation in this case, you should not consider the

Condemnee’s unwillingness to part with her property.

City of Gainesville v. Chambers, 118 Ga. App. 25, p. 27 (1968).

Chapter 846 of 66


Evidence based wholly on speculation and conjecture is not sufficient to support a verdict

for damages, and if you find that an expert's opinion is based wholly on speculation or

conjecture, you should not consider this evidence in your deliberations.

Banker's Health and Life Insurance Co. v. Fryhofer, 114 Ga. App. 107 (1966).


I charge you, Members of the Jury, that a witness may be impeached by contradictory

statements previously made by him or her as to matters relevant to his or her testimony and to the

case. In this regard, I further charge you that if you find that a witness has been successfully

contradicted as to a material matter, his or her credibility as to other matters shall be for you, the

jury, to decide.

Ga. Code Ann. Sec. 38-1803, 38-1806 O.C.G.A. § 24-9-83, 24-9-85.

Chapter 847 of 66


You are the sole judges of the credibility or believability of witnesses. In deciding this,

you may consider all the facts and circumstances of the case, including the witnesses' manner of

testifying, their intelligence, means and opportunity of knowing the facts to which they testify,

the nature of the facts to which they testify, the probability or improbability of their testimony,

their interest or lack of interest, and also their personal credibility as you observe it. While you

may consider the number of witnesses on each side, you are not required to decide in favor of the

side with the most witnesses. Further, the preponderance of evidence is not necessarily in

accordance with the greater number of witnesses. You make all decisions as to the facts of this

case, under the law as given you in this charge.

Suggested Pattern Jury Instructions, Vol. 1: Civil Cases (3rd Ed.) p. 4.

Chapter 848 of 66


I charge you that mere inconvenience to the Condemnees due to the traffic pattern of the

public road is not a proper element of damages and is not compensable.

State Highway Department vs. Cantrell, 119 Ga. App. 241 (1969).


I charge you that you are not required to accept as correct the opinions of expert

witnesses as to value, but you must arrive at your verdict from evidence produced in the course

of the trial. However, in weighing that evidence you may consider the nature of the property

involved and call to your aid your own knowledge, learning and experience.

Department of Transportation v. Driggers, 150 Ga. App. 270, 271 (1979).

Chapter 849 of 66


A `quotient verdict' is an improper manner and method of arriving at a verdict. A

`quotient verdict' is one by which the jurors agree in advance to be bound by the result of a vote

taken in which each juror places a figure representing the amount of damages on a piece of

paper, and the amounts on all 12 pieces of paper are totaled and divided by 12 and that figure

will be the verdict.

Locke et al. vs. Vonalt et al., 189 Ga. App. 783 (1989).

CONDEMNOR'S REQUEST FOR CHARGE NO.______

I further charge you that an award cannot be the result of speculation, conjecture, or

guess work.

Dixie Textile Waste Co. v Oglethorpe Power Corp., 214 Ga.App. 125 (1994)

Chapter 850 of 66


The parties in this case have stipulated, or agreed on certain matters. Therefore, the

matters that the parties have stipulated to do not have to be proved in this case. These matters

have been stipulated, or agreed to by the parties:

(1) Condemnee, , is the fee simple owner of the property condemned in

this action.

(2) The Court has venue and jurisdiction over this action and the parties herein.

(3) The tract of land that is the subject of this condemnation is properly described on

Exhibit "A" to the Condemnor's Condemnation Petition and Declaration of Taking and the total

easement area acquired over said tract is ______________ square feet.

(4) Condemnor is authorized to exercise the power of eminent domain for the purposes

set forth in Paragraph 1 of the Condemnation Petition.

(5) The date of acquisition for the purposes of this action shall be _________________,

200 , the filing date of the Declaration of Taking.

Stipulation by Parties Pursuant to Pre-Trial Order.

Chapter 851 of 66


The Condemnee contends that his/her rights of ingress and egress to the property will be

adversely affected by the widening of ______________________. In this connection, I charge

you that a property owner is not entitled, as against the public, to access to his/her land at all

points in the boundary between it and the public road; if the entire access has not been cutoff,

and if he/she is offered a convenient access to his property and to his/her improvements thereon,

then his/her means of ingress and egress are not substantially interfered with by the public. I

charge you that there must be a substantial change in access to authorize any such recovery.

State Highway Board v Baxter, 167 Ga. 124 (1928).

Chapter 852 of 66


Owners of the property adjoining a street or highway have no vested interest in the traffic

pattern which controlling authorities may provide for the public streets from time to time. If you

find that such owners suffer damage when the traffic pattern is changed and it is a damage

suffered by members of the general public owning property or operating businesses adjacent to a

street or highway, then there can be no recovery, because the damage is not peculiar to the

Condemnee. Regulation of traffic is a governmental function. The changing of traffic patterns,

prohibiting of left turns at stated places, changing of the speed limit, are matters which affect all

of the public in the same manner. Such matters are within the governmental authority of the

State, County or City. It is the duty of the authority having jurisdiction over the highway or

street to so control traffic and provide patterns for traffic as will best serve both those who travel

and those who live or operate businesses along the street or highway, as will facilitate the traffic

flow, and best afford traffic safety. If changes are required as the quantity of traffic increases, or

as the nature of the neighborhood along the street or highway changes, these should be made and

no one has vested interest in keeping the pattern continuously without change. A damage

suffered by the Condemnee which is different from that suffered by the general public in degree

only, and not in kind, is not compensable or recoverable.

Department of Transportation v Consolidated Equities Corp., 181 Ga.App. 672, 675+ (1987)

Chapter 853 of 66


An owner, though a nonexpert, is competent to testify giving his opinion as to the value

of the property only after stating the facts upon which his opinion is based. Mere ownership of

property does not authorize the owner to testify as to its value without giving the facts on which

he bases his opinion.

State Highway Department v. Parker, 114 Ga. App. 270 (1966).


I charge you that in assessing consequential damages you may consider the cost to cure

the damage created by the acquisition as an element in the determination of the after-acquisition

value of the remaining land. I further charge you that it is a basic principal under our law that an

injured party is under an obligation to take reasonable steps to minimize damages and this may

be a proper consideration by the jury also in its assessment of consequential damages. However,

these are just elements in your consideration in the assessment of consequential damages, and it

is mandatory under Georgia law that you find the proper measure of consequential damages to

the remainder by the diminution, if any, in the market value of the remainder in its circumstances

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

just after the time of the acquisition.

D'Youville Recreational Association, Inc. v DeKalb County, 181 Ga. App. 347 (1986) Department of Transportation v Gunnels, 255 Ga. 495 (1986) Garber vs. Housing Authority of Atlanta, 123 Ga. App. 29, 31 (1970).

Chapter 854 of 66


The compensation to be paid the condemnee for the taking of the property condemned

must be determined as of , the date of taking.

Losses occurring to the property before the actual date of taking are not compensable in

this action.

Dept. of Transp. v. Petkas, 189 Ga. App. 633, 638 (1988)


The condemnee may recover consequential damages to the remainder that will “naturally

and proximately arise to the remainder of the owner's property from the taking of the part which

is taken and the devoting of it to the purposes for which it is condemned. . .”

Department of Transportation v. White, 270 Ga. 281, 282 (1998).


Cost to cure is not a separate element or form of consequential damages, nor is it the

measure of consequential damages. Cost to cure may be used by you as a factor to consider in

determining consequential damages.

Dept. of Transportation v. Mendel 237 Ga. App. 900, 903 (1999) Shugart v. Dept. of Transportation 184 Ga. App. 692, 693 (1987)

Chapter 855 of 66


You have heard evidence in this trial about business losses that may have occurred during

the construction process. Temporary loss of profits or business is not recoverable. However, the

evidence has been admitted, and can be considered for the limited purpose of its effect on the fair

market value of the property not acquired. If you find that the temporary losses did not affect the

fair market value of the remaining property, then you should disregard that evidence.

Buck's Service Station, Inc. v. Department of Transportation, 259 Ga. 825 (1990).


I charge you that an expert appraiser is entitled to testify as to the basis for his opinion of

value, including facts of his own knowledge, and as to hearsay evidence that he relies upon. Where

the expert appraiser testifies from facts of his own knowledge, these facts may be considered by the

jury as direct proof of value. Where he testifies as to matters that are not of his own personal

knowledge, for instance, where it is hearsay evidence, that is, what someone not a party to the

proceeding told him, the hearsay evidence is not admissible as direct proof of value, and is only

admissible for showing the basis of the expert's opinion as the value and to enable you to evaluate

the weight to give the expert's opinion. White v. Georgia Power Co., 237 Ga. 341, 347 (1976), overruled on other grounds


In determining the value of property, you are restricted to the uses which may be lawfully

made of it at the time of the taking as set out in ordinances then in effect.

Civils v. Fulton County, 108 Ga. App. 793, 797 (1963).

Chapter 856 of 66


Ladies and Gentlemen of the Jury, the Court instructs you at this time that the condemnee is

not entitled to recover any damages which relate to the temporary period of construction,

notwithstanding the noise, dust and debris which may have been occasioned by the construction.

Therefore, the Court charges you, with respect to any evidence, which describes the temporary

period of construction, such as photos or oral testimony, that such evidence should be considered by

you only to indicate the physical changes made by the construction. In no way or manner should

your award include consideration of the temporary inconvenience which may have been caused by

the construction during the period of construction, as this would not be a proper item of

compensation under the law. MARTA v Datry, 235 Ga. 568 (1975) Downside Risk, Inc. v Metropolitan Atlanta Rapid Transit Authority 156 Ga.App. 209 (1980) CONDEMNOR'S REQUEST TO CHARGE NO.______

Condemnee has stated a claim for business loss. You are not allowed to award business

loss, as a separate item of damage, unless you first find that condemnee's interest in the property is

unique.

D.O.T. v. Kendricks, 148 Ga. App. 242 (1978).

Chapter 857 of 66


If you choose to consider whether or not condemnee's property interest is unique, there are

three general tests for determining whether or not the property is unique.

These tests are as follows: The first test is what is commonly called the relocation test. If

you find that the property interest acquired must be duplicated for the business to survive, and

further find that there is no substantially comparable property within the area and condemnee thus

suffers a loss unique to it, then the property is unique. Second, if you find that condemnee's

relationship to the property is unique, and that only condemnee benefits from this status, then this

special relationship makes the property unique. Under this test, you should not, however, consider

sentimental value or condemnee's unwillingness to sell as making the property unique. Third, if fair

market value does not offer just and adequate compensation because the property is not of a kind

generally bought and sold on the open market, the property is unique. Hinson v. D.O.T., 135 Ga. App. 258 (1975) Housing Authority of Atlanta v. Troncalli, 111 Ga. App. 515 (1965) State Highway Department v. Clark, 123 Ga. App. 627 (1971) CONDEMNOR'S REQUEST TO CHARGE NO.______

Even if condemnee meets the general requirements for the recovery of business loss, but

does not prove business loss with reasonable certainty, or if the evidence of loss is remote or

speculative, then you should not consider or award condemnee any damages for business loss.

D.O.T. v. Kendricks, 148 Ga. App. 242 (1978).

Chapter 858 of 66


The damage to a business by the acquisition of part of the land where it is conducted may be

considered in determining its effect upon the market value of the business property, but it is not a

separate item of damage. The measure of damages for the injury of the business would be the

difference in value of the business property before and after the acquisition of the land, or any

interest therein, resulting from such acquisition. Furthermore, condemnee as the owner of the

proper, is not entitled to business loss, as a separate item of damages, unless the business conducted

on the property is totally destroyed. If the acquisition of the portion of condemnee's property does

not totally destroy the business operated thereon, condemnee is not entitled to recover business over

loss damages.

Furthermore, if condemnee continues to operate the business at some other location, he is

only entitled to recover that amount of business that he would never recover. Housing Authority of the City of Atlanta v. Southern Railway Company 245 Ga. 229 (1980) DOT v. Dixie Highway Bottle Shop, 245 Ga. 314 (1980). Department of Transportation vs. Kendricks, 148 Ga. App. 242 (1978). CONDEMNOR'S REQUEST TO CHARGE NO.______

All elements and uses of the land acquired may be taken into consideration to determine the

market value of the land acquired and the consequential damages to the land not acquired.

However, under this procedure, you should not consider the separate value of trees, shrubs, or other

elements upon the land.

Gaines v. Department of Transportation, 140 Ga. App. 741 (1976).

Chapter 859 of 66


An appraiser may be able to show a basis for determining that the value per acre of the

portion taken from the whole is equal to, more than, or less than the value per acre of the whole

tract as long as the evidence supports such an approach.

Loggins et al. v Department of Transportation, 264 Ga.App. 514 (2003)


The value of the land taken in a proceeding of this kind against a small strip of land

embraces not necessarily the value of the strip of land taken as an isolated parcel of land, but

such additional value as attaches to it by reason of its connection with the adjacent land.

Rucker v Department of Transportation, 188 Ga.App. 283 (1988)

Chapter 860 of 66


The fact that the property is merely adaptable to a different use is not in itself a sufficient

showing in law to consider such different use as a basis for compensation. It must be shown that

such use of the property is so reasonably probable as to have an effect on the present value of the

land. (Emphasis supplied.)

Even where a different use is probable, ... as jurors you should not evaluate the property as

though the new use were an accomplished fact; you should only consider the new use to the

extent that if affects the market value on the date of taking." (Emphasis supplied.)

Dept. of Transp. v. Great Southern, 137 Ga.App. at 713 (1976) Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, *304 (1992) CONDEMNOR'S REQUEST TO CHARGE NO.______

You should consider all legitimate purposes for which an undeveloped parcel can be used

and not be restricted to its use at the time of the taking, but inquir[y] may be made as to all

legitimate purposes for which the property could be appropriated. You should determine from

the evidence what an undeveloped parcel’s highest and best use is from all uses that are

reasonably probable.

Carriage Hills Associates, Inc. v. Municipal Electric Authority of Georgia, 264 Ga.App.192 (2003).

Chapter 861 of 66


The penalty usually imposed for the breach of a conservation use covenant does not apply

when the covenant is breached as a result of the property’s acquisition by eminent domain.

O.C.G.A. § 48-5-7.1(j)(1). CONDEMNOR'S REQUEST TO CHARGE NO.______

The measure of the value of the easement is the reduction in the fair market value of the

property on which the easement is imposed.

Georgia Power Co. v. Sinclair, 122 Ga.App. 305 (1970) Georgia Power Co. v. Cannon, 120 Ga.App. 721 (1969) Hinkel’s Georgia Eminent Domain § 6-10 (2000 ed.) CONDEMNOR'S REQUEST TO CHARGE NO.______

The fact that the property is merely adaptable to a different use is not in itself a sufficient

showing in law to consider such different use as a basis for compensation; it must be shown that

such use of the property is so reasonably probable as to have an effect on the present value of the

land. Even where a different use is shown to be reasonably probably, you cannot evaluate the

property as though the new use is an accomplished fact; you can consider the new use only to the

extent that it affects the market value on the date of taking.

Flint v. Department of Transp., 223 Ga.App. 815, 818 (1996) Georgia Transmission Corp. v. Barron, 255 Ga.App. 645 (2002)

Chapter 862 of 66


The value of the Defendant’s land is based on its use or rental for certain purposes, which

would include the ground lease for the billboard sign. The uses are an important consideration in

determining the value of the land. But once the Defendant is compensated for the value of the

land, he is made whole. The lost value is no basis for additional compensation.

State Highway Department v. Hood, 118 Ga.App. 720 (1968). CONDEMNOR'S REQUEST TO CHARGE NO.______

In a partial taking, as in this case where Plaintiff has not taken all of the Defendant’s

land, the loss of the lease and the resulting loss of rental payments are not a separate item of

damages as to the actual property taken and cannot be awarded in addition to the value of the

property taken.

Continental Corporation v. Department of Transportation, 185 Ga.App. 792 (1988) State Highway Department v. Hood, 118 Ga.App. 720 (1968) CONDEMNOR'S REQUEST TO CHARGE NO.______

As a matter of jurisdiction, the Department of Transportation Driveway Regulations

apply as to all driveways off of State Route 17 and other State Routes, and Aintree County

Subdivision Ordinances do not apply to driveways off of State Routes. Aintree County

Subdivision Ordinances apply to roads constructed on private property in Aintree County that are

not driveways providing access to State Routes.

Chapter 863 of 66


You, the jury, are not restricted solely to present zoning. In determining value, the jury

may consider possible or probable future zoning changes which are sufficiently likely to have an

appreciable influence upon the present market value.

McDaniel Enterprises, Inc. v. Gwinnett County, 162 Ga.App. 419 (1982) CONDEMNOR'S REQUEST TO CHARGE NO.______

It is proper for you to consider the opinion of an expert appraiser who has knowledge and

experience with respect to effecting changes in zoning restrictions, as to the likelihood in the

change in zoning of the subject property.

State Highway Dept. v. Hurt, 121 Ga.App. 188 (1970). CONDEMNOR'S REQUEST TO CHARGE NO.______

You have heard about limited access issues on the subject property. You have also heard

testimony regarding early or advanced acquisition procedures. However, you should not

consider this testimony as bad faith on the part of the Department of Transportation. The sole

issue in this trial is just and adequate compensation as of the date of taking.

Department of Transportation v. Petkas, 189 Ga.App. 633 (Ga.App., 1988) Department of Transportation v. Franco’s Pizza & Deli, Inc., 164 Ga.App. 497, 498 (1982)

Chapter 864 of 66


Pursley City has sole authority to grant or deny a permit application. Any failure to grant

or deny a permit is solely the responsibility of Pursley City, and not the Department of

Transportation.

Any alleged interference by the Georgia Department of Transportation with Pursley City

review of a permit application is not a part of the award of just and adequate compensation.

Department of Transportation v. Poole, 179 Ga.App. 638 (1986).

Chapter 865 of 66


This is to certify that I have this date served the within and foregoing PLAINTIFF-

CONDEMNOR’S REQUESTS TO CHARGE by hand delivery of a copy of same to the

following:

______________________ Attorney at Law

Aintree County Courthouse Pursley City, Georgia

This ______ day of ____________, 20____. HULSEY, OLIVER & MAHAR, LLP By:____________________________________ Thomas L. Fitzgerald Georgia State Bar No. 262235 ATTORNEYS FOR PLAINTIFF-CONDEMNOR TLF/llc/W182551

Chapter 866 of 66

CLOSING ARGUMENT AND CONDEMNOR’S CLOSING ARGUMENT, PART II

Richard N. Hubert

Attorney at Law

Atlanta, Georgia

Paul H. Dunbar, III

Capers, Dunbar, Sanders & Bellotti, LLP

Augusta, Georgia


Chapter 9i

Chapter 91 of 9

Chapter 92 of 9

Chapter 93 of 9

Chapter 94 of 9

Chapter 95 of 9

Chapter 96 of 9

Chapter 97 of 9

Chapter 98 of 9

Chapter 99 of 9

APPENDIX

APPENDIX

INSTITUTE OF CONTINUING LEGAL EDUCATION IN GEORGIA

BOARD OF TRUSTEES

The State Bar of Georgia and the Law Schools of The University of Georgia, Emory

University and Mercer University established the Institute of Continuing Legal Education

in Georgia in August 1965. In 1984, Georgia State University College of Law was added

to the consortium, and in 2005, John Marshall Law School was added. The purpose of

the Institute is to provide an outstanding continuing legal education program so that

members of the legal profession are aff orded a means of enhancing their skills and

keeping abreast of developments of the law. The Institute is governed by a Board

of Trustees composed of twenty-eight members consisting of the Immediate Past-

President, the President, the President-Elect, the Secretary, and the Treasurer, all of the

State Bar of Georgia; the President, President-Elect and the Immediate Past-President of

the Young Lawyers Division; nine members to be appointed by the President of the State

Bar of Georgia, each for a term of three years (the President has three appointments each

year); two representatives of each of the participating law schools; and the Immediate

Past Chairperson of the Institute. The Immediate Past-President of the State Bar of Georgia

serves as Chairperson of the Board of Trustees of the Institute.

2015 – 2016 Term Expires

Patrise M. Perkins-Hooker, Atlanta 2016

Chairperson, ICLE

Immediate Past-President, State Bar of Georgia

Ray Lanier, Atlanta

Vice-Chairperson, ICLE (2017)

Georgia State University College of Law

Robert J. Kauff man, Douglasville 2016

President, State Bar of Georgia

Patrick T. O’Connor, Savannah 2016

President-Elect and Treasurer, State Bar of Georgia

Charles L. Ruffi n, Macon and Atlanta 2016

Immediate Past-Chairperson, ICLE

Brian D. Rogers, Atlanta 2016

Secretary, State Bar of Georgia

John Ryd Bush Long, Augusta 2016

President, YLD, State Bar of Georgia

Jennifer Campbell Mock, Statesboro 2016

President-Elect, YLD, State Bar of Georgia

V. Sharon Edenfi eld, Statesboro 2016

Immediate Past-President, YLD, State Bar of Georgia

Peter “Bo” Rutledge, Athens

University of Georgia School of Law

Appendix1 of 5

David Shipley, Athens

University of Georgia School of Law

Robert A. Schapiro, Atlanta

Dean, Emory University School of Law

A. James Elliott, Atlanta

Emory University School of Law

Daisy Hurst Floyd, Macon

Dean, Mercer University School of Law

Oren Griffi n, Macon

Mercer University School of Law

Roy M. Sobelson, Atlanta

Georgia State University College of Law

Malcolm L. Morris, Atlanta

Dean, John Marshall Law School

Michael Mears, Atlanta

John Marshall Law School

Thomas C. Chambers, III, Homerville 2017

At-Large Trustee

J. Vincent Cook, Athens 2016

At-Large Trustee

Karlise Y. Grier, Atlanta 2016

At-Large Trustee

Geoff rey Allen Alls, Savannah 2018

At-Large Trustee

Hon. Rizza O’Connor, Lyons 2018

At-Large Trustee

Patricia D. Shewmaker, Atlanta 2017

At-Large Trustee

Kenneth L. Shigley, Atlanta 2017

At-Large Trustee

John W. Timmons, Jr., Athens 2016

At-Large Trustee

Paul V. Balducci, Augusta 2018

At-Large Trustee

Appendix2 of 5

ICLE Staff

Stephen J. Harper

Executive Director

Douglas G. Ashworth

Director of Programs

Tangela S. King

Director of Production

Phillip C. Griff eth

Associate Director

Appendix3 of 5

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of

instruction annually, with one of the CLE hours being in the area of legal ethics and one

of the CLE hours being in the area of professionalism. Furthermore, any attorney who

appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested

civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must

complete for such year a minimum of three hours of continuing legal education activity

in the area of trial practice. These trial practice hours are included in, and not in addition

to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the

next succeeding CY. Excess ethics and professionalism credits may be carried over for

two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which

indicates the program name, date, amount paid, CLE hours (including ethics,

professionalism and trial practice, if any) and should be retained for your

personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the

Offi cial State Bar Membership computer records for recording on the attendee’s Bar

record. Attendees at ICLE programs need do nothing more as their attendance will

be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the

procedure at the registration desk. ICLE does not guarantee credit in any state other

than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call:

Toll Free:

1-800-422-0893

Athens Area:

706-369-5664

Atlanta Area:

770-466-0886 x 306

Appendix4 of 5

Dear ICLE Seminar Attendee,

Many thanks to you for attending this seminar. We hope that these program materials will

provide a great initial resource and reference for you in the particular subject matter area.

In an eff ort to make our seminar materials as correct as possible, should you discover any

signifi cantly substantial errors within this volume, please do not hesitate to inform us.

Should you have a different legal interpretation/opinion from the author’s, the

appropriate way to address this is by contacting them directly, which, by the very nature

of our seminars, is always welcome.

Thank you for your assistance. It is truly appreciated.

Sincerely,

Your ICLE Staff

Appendix5 of 5