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Curry v. Department of Transportation

Court of Appeals of Georgia, Fourth Division

May 18, 2017

CURRY
v.
DEPARTMENT OF TRANSPORTATION.

          DILLARD, P. J., RAY and SELF, JJ.

          Dillard, Presiding Judge.

         In 2007, the Georgia Department of Transportation ("DOT") filed a petition in the Superior Court of Laurens County, under OCGA § 32-3-4, to condemn access rights to property owned by Christy Curry for the construction of a limited-access highway. Following trial, a jury awarded Curry $86, 000 as "just compensation, "[1] and the trial court entered a judgment accordingly. Curry now appeals that award as inadequate and seeks a new trial, arguing that the trial court erred by instructing the jury on a means of determining consequential damages that was inaccurate as a matter of law and inapplicable to the facts of this case. For the reasons set forth infra, we affirm.

         Construed in favor of the verdict, [2] the record shows that the subject property owned by Curry is located in Dublin, Laurens County, Georgia, at the intersection of Georgia Highway 257 and the Georgia Highway 441 Bypass. Prior to the construction of the 441 Bypass, the county road that crossed Highway 257 to form that intersection was known as Firetower Road. Also prior to the 441 Bypass construction, Highway 257 had been widened to a five-lane highway with a middle turn lane, and the DOT acquired both property and access rights from Curry at that time for the project.

         On March 23, 2007, the DOT filed a condemnation petition to acquire all of Curry's access rights on Firetower Road, which constituted approximately 1, 313 linear feet, in order to begin construction on the 441 Bypass, which was to be a limited-access highway. And indeed, it is undisputed-and was at the time-that after the acquisition, Curry would no longer have access to Firetower Road, as that road would cease to exist. At the same time that it filed its petition, the DOT paid into the trial court's registry $118, 250, which it estimated as just and adequate compensation for Curry's access rights. Shortly thereafter, Curry filed an answer to the petition, contesting the adequacy of the compensation.

         In 2015, the matter proceeded to a jury trial, focusing exclusively on the amount of just and adequate compensation to be paid to Curry for the acquisition of the access rights. During the trial, the DOT presented evidence demonstrating that Curry owned another tract of property on Highway 257, which adjoined the subject property, and that she had access to Highway 257 via both tracts. In addition, the DOT presented the testimony of a civil engineer, who testified regarding the scope of the project and its affect on Curry's access, and a real estate appraiser, who testified as to the value of Curry's property before and after the acquisition and opined that the diminution in value Curry suffered based on loss of access rights was $68, 755. Curry, in turn, presented testimony from another real estate appraiser, who claimed that the acquisition resulted in the subject property suffering a diminution in value of $207, 000, due to the fact that Curry could no longer access areas of her property that could be developed for commercial uses.

         At the conclusion of the trial, the jury awarded Curry $86, 000. And thus, because the DOT had initially paid $118, 250 into the court's registry, the trial court entered judgment against Curry in the amount of $32, 250.[3] This appeal follows.

         In her sole enumeration of error, Curry contends that the trial court erred by instructing the jury on a means of determining consequential damages for loss of right of access that was inaccurate as a matter of law and inapplicable to the facts of this case. We disagree.

         It is well established that a jury charge must "be adjusted to the evidence, apt, and a correct statement of the applicable law."[4] But jury charges cannot be construed in isolation. Instead, they must be "read and considered as a whole in determining whether the charge contained error."[5] Importantly, the review of an allegedly erroneous jury instruction is "a legal question, and we therefore owe no deference to the trial court's ruling and apply the 'plain legal error' standard of review."[6] Bearing these guiding principles in mind, we turn now to Curry's specific claim of error.

         In this matter, shortly after instructing the jury as to the parties' stipulation that the DOT had taken 1, 313.26 linear feet of access rights from Curry, the trial court further instructed as follows:

Now, the property rights taken in this case are access rights.
And the damage in this case is called consequential damages and pertains to the property of the owner after access rights were acquired.
The Condemnee is entitled to recover the difference in the fair market value of her property before and after the taking of her access rights.

         Then, after explaining the concept of a limited-access highway under the law, the court ...


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