GA Code § 32-3-16 (2021)
2021 Georgia Code|Title 32 - Highways, Bridges, and Ferries|Chapter 3 - Acquisition of Property for Transportation Purposes|Article 1 - General Provisions|§ 32-3-16. Appeal to Jury; Evidence to Be Heard on Appeal; Subsequent Review of Issues Not Brought Before Jury

  After the notice of appeal has been filed as provided in Code Section 32-3-14, it shall be the duty of the court at the next term thereof, which shall convene not earlier than 30 days subsequent to the date of service, as provided for in Code Sections 32-3-8 and 32-3-9, to cause an issue to be made and tried by a jury as to the value of the property or interest taken and the consequential damages to property or interests not taken, with the same right to move for a new trial and file a notice of appeal as in other cases at law, provided that an interlocutory award has not become final pursuant to Code Section 32-3-15.   When an appeal has been filed pursuant to Code Section 32-3-14, all subsequent proceedings thereon shall have the nature of a de novo investigation 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:   The fair market value of the property or interest taken or other evidence of just and adequate compensation;   The prospective and consequential damages to the remaining property or interests by reason of the taking and use of the property or interest for the purposes for which taken; and   The consequential benefits accruing to such remaining property or interests by reason of such taking and use,  provided that such consequential benefits, if any, may be offset against such consequential damages, if any; but, in no event, shall consequential benefits be offset against the value of the property or interest actually taken.      If, for any reason, the issues made by the filing of the notice of appeal provided for in this Code section are not tried by a jury as to the value of the property or interest taken and the consequential damages to the property or interests not taken, at the next term of the court after the filing of such appeal, such fact shall not be cause for dismissal of the appeal and the issues made by such appeal shall be subject to trial at any future term of the court.    (Code 1933, § 95A-612, enacted by Ga. L. 1973, p. 947, § 1.)   Cross references.   - Further provisions regarding evidence to be considered in determining just and adequate compensation, §§ 22-2-109,22-2-137.   JUDICIAL DECISIONS   Interlocutory awards of estimated compensation appealable.    - Any interpretation of this section allowing interlocutory awards of estimated compensation to become nonappealable final judgments is contrary to the legislative scheme. Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977).   Failure to make issue at trial of alleged error.    - If alleged error was never made an issue at trial, no question is presented for review on appeal. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).    Issue of whether or not property is unique is a jury question. DOT v. 19.646 Acres of Land, 178 Ga. App. 287, 342 S.E.2d 760 (1986).   Condemnor not bound by original estimate upon condemnee's appeal to jury.    - When a condemnee is dissatisfied with the compensation originally estimated by the condemnor and elects to appeal that issue to a jury, the condemnor is not bound by the condemnor's original estimate but can present evidence de novo as to the fair market value and consequential damages. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).    Evidence of sales of comparable property in condemnation proceedings which is not too remote in point of time could become relevant as the basis of an expert's explanation as to how the expert arrived at the valuation and, when such use is made of evidence of comparable sales, no foundation need be laid concerning the similarity of the property. Panos v. Department of Transp., 162 Ga. App. 53, 290 S.E.2d 295 (1982).   Improper exclusion of expert opinion.    - Expert's opinion as to what the expert would pay for condemned land was probative of the land's fair market value and improperly excluded by the trial court. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985).   Expert appraiser previously employed by another condemning authority.    - In a condemnation action where the issue was just and adequate compensation, and the condemnees' expert appraiser testified to having previously been employed by another condemning authority to appraise the same property, but the Department of Transportation did not object to the witness at trial, the issue may not be raised on appeal. DOT v. Bennett, 194 Ga. App. 789, 391 S.E.2d 724 (1990).    Greater difficulty in ingress and egress which is occasioned by changing traffic patterns is not an appropriate item of damages in eminent domain proceedings. Department of Transp. v. Coley, 184 Ga. App. 206, 360 S.E.2d 924 (1987).   Consequential damages provable.    - In condemnation proceedings, the condemnee is entitled to prove every element of consequential damage that is relevant. Department of Transp. v. Coley, 184 Ga. App. 206, 360 S.E.2d 924 (1987).    Because a condemnee did not claim lost profits or business losses, the trial court properly limited the condemnee's evidence to the value of the property taken and consequential damages to the remainder; because the jury's valuation was within the range of the evidence, the trial court properly denied the condemnee's motion for a new trial. Thornton v. DOT, 275 Ga. App. 401, 620 S.E.2d 621 (2005).   Business loss damages need not be specifically pled in notice of appeal.    - Because there was no legislative requirement that, in a condemnation proceeding, a party seeking business loss damages had to specifically and separately plead for such in the notice of appeal, in accordance with the consent judgment that the Georgia Department of Transportation was bound by, a lessee's appeal was to proceed to trial on the lessee's claims for business loss, damages to trade fixtures, and relocation expenses. DOT v. Camvic Corp., 284 Ga. App. 321, 644 S.E.2d 171 (2007).   Use of "condemnee" rather than "condemnor" in burden of proof instruction.    - When, in a condemnation action, the use of "condemnees" rather than "condemnor" in the charge explaining the burden of proof is clearly inadvertent, a slip of the tongue, the error is not likely to confuse or mislead the jury and, thus, is not so substantial as to require reversal. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).   Jury charges constituting reversible error.    - Jury charge that limited jury's use of the replacement- cost-less-depreciation method for establishing fair market value to situations where the market or income approaches were not suitable was incorrect and constituted reversible error. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985).   Attorney's fees and costs recoverable only in    § 32-3-11 action. - Condemnee's claim for attorney's fees and litigation expenses based on the fraud and bad faith that the condemnor allegedly exhibited during the condemnor's acquisition of the property in question could only be raised in a proceeding pursuant to O.C.G.A. § 32-3-11 and not in an action seeking to establish just and reasonable compensation only. Department of Transp. v. Franco's Pizza & Delicatessen, Inc., 164 Ga. App. 497, 297 S.E.2d 72 (1982).    Cited in Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984).   RESEARCH REFERENCES   ALR.   - Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.