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Troup County v. Mako Development, LLC

Court of Appeals of Georgia, Second Division

October 17, 2019

TROUP COUNTY, GEORGIA
v.
MAKO DEVELOPMENT, LLC; and vice versa.

          MILLER, P. J., RICKMAN and REESE, JJ.

          MILLER, PRESIDING JUDGE.

         This case involves a dispute between Troup County, Georgia ("the County") and Mako Development, LLC ("Mako") over the valuation of certain easements that the County imposed on Mako's property as part of an expansion project at a nearby airport. In Case Number A19A1497, the County challenges the jury's verdict, arguing that the trial court erroneously instructed the jury on consequential damages and that the trial court improperly allowed evidence of a "runway protection zone." In Case Number A19A1649, Mako challenges the trial court's denial of its motion for attorney fees. We find no reason to disturb the jury's verdict, and we conclude that the trial court did not abuse its discretion by denying Mako's request for attorney fees. Accordingly, we affirm.

         "On appeal from a trial court's entry of judgment on a jury's verdict in a condemnation action, this Court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict." (Citation and punctuation omitted.) Dept. of Transp. v. Jordan, 300 Ga.App. 104 (684 S.E.2d 141) (2009).

         In 2006, Mako purchased a 6.2-acre parcel of property near the LaGrange-Callaway airport in the city of LaGrange, Georgia for approximately one million dollars. The Department of Transportation later used its eminent domain power to take a portion of the property while providing Mako with compensation of around $320, 000. The remaining property was 4.41 acres in size, and, in 2015, the county tax assessor assigned the property a value of $666, 000.00. At all relevant times, the property was undeveloped and covered with vegetation.

         In August 2015, the voters of Troup County and the City of LaGrange, Georgia approved through resolution a large expansion to the LaGrange-Callaway airport, which included an extension of its runways. In September 2015, the County filed a declaration of taking against Mako's property, declaring that it was using its eminent domain power to claim an avigation easement over the entire 4.41 acres of the property to allow airplanes to fly over the airspace due to the property's close proximity to the airport and its location within the flight path of the runway. The easement as described included both a restriction on use of airspace above a certain height over the entire contiguous tract and a permanent right of entry to remove objects extending into the airspace and to prevent the erection or growth of any structure or object into the airspace. The easement set out the various heights of the restricted airspace, generally ranging from 725-740 feet, over the different portions of Mako's property. In the declaration, the County estimated that the amount of just and adequate compensation for the taking was $4, 500. After the taking, the County cut down 22 trees on Mako's property because they were encroaching into the airspace.

         In September 2015, the County filed a petition of taking with the superior court. Mako timely filed a notice of appeal of the declaration and petition of taking, invoking its right to a jury trial to determine the amount of just and adequate compensation. Before trial, the County filed a motion for partial summary judgment, arguing that Mako was not entitled to consequential damages as part of its recovery because the easement that the County sought to take covered the entire property, and there was therefore no "remainder" of the property that was unaffected. The trial court denied the motion, concluding that there was a remainder of the property that was not claimed by the easement: namely, the area of the property from the ground up to the height restrictions claimed. The trial court concluded that "[a]s a practical matter, virtually all damages flowing from an Avigation Easement are dimunition in value damages to the remainder of the property not taken . . . inasmuch as the property owner rarely has occasion to actually use the airspace that is over 700 feet above their property. The real taking is not the airspace but the negative effect on the fair market value of the real estate beneath the easement."

         At trial, both parties brought in appraisers to testify on the appropriate amount of compensation for the condemned property. While both appraisers concluded that there was a remainder tract not subject to the easement, their final valuations differed. The County's appraiser testified that the property was worth $149, 738 before the condemnation and was worth $145, 246 after the condemnation, attributing $4, 492 of the reduction in value as the value of the direct taking and opining that there were no consequential damages to the remainder of the property. Mako's appraiser, however, testified that the property was worth $1, 102, 500 before the condemnation and was worth $705, 600 afterward, for a total reduction in value of $396, 900. Mako's appraiser attributed $220, 500 of that loss to the direct taking of the easement and the remaining $176, 400 as consequential damages to the remainder of the property.

         Over the County's objection, the trial court instructed the jury to consider both direct and consequential damages. The trial court defined direct damages as damage "to the property actually taken," meaning "the actual value of the loss." The trial court defined consequential damages as damage to "the property the owner has left after the part the Condemnor takes or uses is subtracted," meaning "the difference between the value of the remaining property immediately before the taking and its value after the taking" or "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 circumstances just after the time of the taking."

         Based on the evidence presented at trial, the jury returned a general verdict of $233, 100 for Mako. The jury's verdict did not specify the amounts of direct or consequential damages that were awarded, nor did the verdict form ask the jury to split their verdict into direct or consequential damages. After trial, Mako moved for an award of attorney fees under both OCGA §§ 9-15-14 (a) and (b). The trial court denied the motion for attorney fees. The County timely appealed from the final judgment, and we granted Mako's application for a discretionary appeal from the order denying its request for attorney fees.

         Case No. A19A1497

         1. As its first enumeration of error, the County argues that the trial court erred in denying its motion for partial summary judgment on the issue of consequential damages. Because the issue of consequential damages was addressed at trial, however, any review of the denial of the County's motion for partial summary judgment is now moot. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 S.E.2d 61) (1978); Yetman v. Walsh, 282 Ga.App. 499, 500-501 (2) (639 S.E.2d 491) (2006). We will instead review the County's arguments as part of its challenge to the jury instructions in Section 2.

         2. The County next argues that the trial court erred in instructing the jury on consequential damages because the claimed easement of the airspace, combined with the access rights over all the property, means that there is no "remainder" of the property that would warrant the imposition of consequential damages. The record shows that any alleged error in instructing the jury was harmless, and so we uphold the jury's verdict.

         "We review a trial court's jury instructions as a whole, de novo, for legal error." (Citation omitted.) Brown v. Tucker, 337 Ga.App. 704, 713 (4) (788 S.E.2d 810) (2016). "[T]he party challenging the instruction must establish that the instruction was both legally erroneous and harmful." (Citation omitted.) Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga.App. 22, 24 (1) (645 S.E.2d 536) (2007). "A charge unauthorized by the evidence, which injects into the case issues not made by the pleadings or evidence, is presumed to be harmful to the losing party, and such a charge is ...


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