TOLER et al.
GEORGIA DEPARTMENT OF TRANSPORTATION
Cert. applied for.
Condemnation. Wilkinson Superior Court. Before Judge Porter, Senior Judge.
Baker, Donelson, Bearman, Caldwell & Berkowitz, Charles L. Ruffin, Ivy N. Cadle, Boone, Scott & Boone, Joseph A. Boone, for appellants.
Samuel S. Olens, Attorney General, Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Sell & Melton, John Draughon, M. Devlin Cooper, for appellee.
McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.
On May 3, 2000, the Georgia Department of Transportation (" DOT" ) initiated proceedings to condemn 1.7 acres of land in Wilkinson County (the " Property" ) owned by Charlotte Lord Toler, Ray E. Toler, and William T. Toler (the " Tolers" ). The Tolers appealed the condemnation and demanded a jury trial. They later asserted a claim for business losses arising out of kaolin production on the land. The matter proceeded to trial more than 12 years after the initial taking, and on June 30, 2012, the jury awarded the Tolers $212,135 for " real property taken and damaged," but awarded them nothing on their business loss claim. The Tolers appeal the portion of the verdict denying them any recovery on the latter claim.
The record shows the Property was part of a larger tract, which was encumbered by a 1991 lease agreement (the " Lease" ) under which the Tolers granted J. M. Huber Corporation (" Huber" ) the right to mine kaolin and other like minerals. Under the Lease terms, Huber was required to pay the Tolers a lump sum of $50,000, along with an earned royalty of $2.07 per ton of mined kaolin, with a periodic cost of living adjustment. Huber had conducted mining on the Property in two separate phases and had paid the Tolers over $1 million under the Lease, but the Property was not being actively mined on the date of the taking. Although originally named as a party to the proceedings, approximately ten years into the litigation, on January 28, 2010, [328 Ga.App. 145] Huber assigned to the Tolers all rights to any condemnation awards to which it was entitled (the " Assignment" ). It is undisputed that the Tolers did not pay Huber any consideration for the Assignment.
At trial, the Tolers sought compensation not only for the loss of their fee simple interest in the Property, but also for the business loss Huber suffered as a result of the taking, which, in the Pretrial Order, they asserted totaled $3,718,251.39. They contended that these losses were based on the loss of the ability to sell kaolin that would have been extracted from the 1.7 acres condemned by the DOT " and the surrounding area as required by setbacks and slopes." The Tolers assert that their business loss claim was hampered by a series of evidentiary rulings by the trial court that the Tolers enumerate as error on appeal.
" The admissibility of evidence lies in the trial court's discretion, and the appellate court reviews evidentiary rulings under the abuse of discretion standard." Thornton v. Dept. of Transp., 275 Ga.App. 401, 403 (1) (620 S.E.2d 621) (2005). See also Davis Co., Inc. v. Dept. of Transp., 262 Ga.App. 138, 142 (2) (584 S.E.2d 705) (2003). Similarly, we review the trial court's denial of a motion in limine for an abuse of discretion. Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 S.E.2d 512) (2005). We now turn to the Tolers' enumerations, reciting additional facts as necessary to consider the parties' arguments.
1. The Tolers first assert that the trial court erred in denying their motion in limine seeking to exclude evidence and argument regarding the consideration they paid for the Assignment and by allowing such evidence and argument at trial.
The Tolers filed a pre-trial motion in limine " to exclude any documentary or oral testimony by DOT, any of DOT's witnesses and/or mention by counsel for DOT regarding the consideration paid by the Tolers to [Huber] for the Assignment of its claim." They argued in their motion that such evidence had no probative value for the issues in the ...