PRIBEAGU v. GWINNETT COUNTY

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Court of Appeals of Georgia.

PRIBEAGU et al. v. GWINNETT COUNTY.

No. A15A2026.

Decided: March 23, 2016

Larry Eugene Stewart, for Appellant. Forrest Sylvester Fields Jr., for Appellee.

This Court granted the application of Corneliu and Sanda Pribeagu for interlocutory review of the trial court's order granting a motion in limine filed by Gwinnett County, Georgia (the “County”) in the Pribeagus' action against the County for inverse condemnation.

The Pribeagus' complaint alleged that the County failed to maintain the road and storm water drainage system serving the Pribeagus' residence, resulting in repetitious flooding of their home and property. The County moved for summary judgment on these claims, but the trial court denied the motion. The County then filed a motion in limine, asserting that sovereign immunity barred the Pribeagus' claims for damage to personal property, cost of repair, emotional upset, and attorney fees. Following a hearing, the trial court granted the County's motion in limine and excluded the testimony of two of the Pribeagus' expert witnesses. However, the trial court granted the Pribeagus a certificate of immediate review of its ruling, which led to this appeal. The Pribeagus argue on appeal that the trial court erred in excluding evidence relating to their claims for damages to personal property and for attorney fees and in barring the testimony of two of their experts relating to damage to personal property and cost of repair.

“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.” (Citation and punctuation omitted.) Webster v. Desai, 305 Ga.App. 234, 235(1) (699 S.E.2d 419) (2010). “Admission of evidence lies in the sound discretion of the trial court, and we will not reverse in the absence of a showing of abuse of discretion.” (Citation and punctuation omitted.) Huckaby v. Cheatham, 272 Ga.App. 746, 752(2) (612 S.E.2d 810) (2005). See also Blackwell v. Potts, 266 Ga.App. 702, 705(1) (598 S.E.2d 1) (2004) (appellate courts review a ruling on a motion in limine for an abuse of discretion).

The Pribeagus' inverse condemnation claim is based on allegations that the County created a continuing nuisance, resulting in repeated flooding to their property. In Georgia, “[a] county, unlike a municipality, is not ․ generally liable for creating nuisances .” Duffield v. DeKalb County, 242 Ga. 432, 434(2) (249 S.E.2d 235) (1978). Rather, a county is only liable when it “causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes.” (Citation and punctuation omitted.) DeKalb County v. Orwig, 261 Ga. 137, 138(1) (402 S.E.2d 513) (1991) (“Orwig II ”). See also Columbia County v. Doolittle, 270 Ga. 490, 491(1) (512 S.E.2d 236) (1999) (recognizing that counties may be sued in inverse condemnation for a continuing nuisance); Duffield, 242 Ga. at 433(1) (counties may be subject to liability under a theory of inverse condemnation). Thus, “a county cannot be liable for a nuisance which does not rise to the level of a taking of property” under the Georgia Constitution. Orwig II, 261 Ga. at 138(1).1

Accordingly, the Pribeagus are “only entitled, if [they are] entitled to damages at all, to those damages recoverable under a theory of inverse condemnation,” Orwig II, 261 Ga. at 139(3). “Damages recoverable in an inverse condemnation are a substitute for the damages recoverable in a condemnation proceeding, and are measured by the same standard.” (Citation and punctuation omitted.) Dept. of Transp. v. Edwards, 267 Ga. 733, 737(1)(b) ( 482 S.E.2d 260) (1997). See also Howard v. Gourmet Concepts Intl., Inc., 242 Ga.App. 521, 524(3) (529 S.E.2d 406) (2000) (measure of damages in an inverse condemnation case same as in condemnation cases). In condemnation actions, only two elements of damages are considered: “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.” (Citation and punctuation omitted.) Simon v. Dept. of Transp., 245 Ga. 478, 478 (265 S.E.2d 777) (1980). See also Dept. of Transp. v. White, 270 Ga. 281, 282 (508 S.E.2d 407) (1998); Flo–Rob, Inc. v. Colonial Pipeline Co., 170 Ga.App. 650, 651 (317 S.E.2d 885) (1984). Cf. OCGA § 22–2–109(c). “Consequential damages are shown by the difference between the fair market value of the remaining property prior to the taking and the fair market value of the remaining property after the taking.” (Citation and punctuation omitted.) Dept. of Transp. v. Ogburn Hardware & Supply, Inc., 273 Ga.App. 124, 126(1) (614 S.E.2d 108) (2005).

1. The Pribeagus assert that the trial court erred in finding that they were not entitled to recover for damages to their personal property under their inverse condemnation claim and in excluding the testimony of their expert Wayne McKinley, whom they identify in their reply brief as “an expert in ‘insurance property loss adjustment,’ [who would] testify as to the ‘fair market value of [their] personal loss as a result of the events underlying the complaint.’ “2 They argue that the trial court erred in relying on the Supreme Court's opinion in Orwig II to find that they were not entitled to recover damages to personal property.

However, on appeal, the Pribeagus fail to identify the nature of this personal property or to cite us to any portion of the record identifying the property at issue or addressing the content of McKinley's proposed testimony. Although this Court is not required to cull the record on the Pribeagus' behalf to locate such information, Carlisle v. Abend, 288 Ga.App. 150, 151(1) (653 S.E.2d 388) (2007), we have undertaken our own review of the record and find that their complaint asserts only that the County is liable for “all direct, consequential, special and emotional damages,”3 without further elaboration. And they provide no description of any personal property in their summary judgment briefs or in their arguments at the motion in limine hearing. Additionally, because the Pribeagus chose to designate only portions of the trial court record for inclusion on appeal, expressly excluding documents such as the pre-trial order that may have further identified the damages sought, we are not privy to all the pleadings and evidence available to the trial court when it ruled on the motion in limine.

Without knowing what personal property is at issue, we cannot review the trial court's decision excluding recovery for damages to such property.4 Similarly, without knowing the content of McKinley's testimony, including the nature of the property addressed therein, we cannot review the trial court's decision to exclude such testimony.

“It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” (Citation and punctuation omitted.) Hooks v.. Humphries, 303 Ga.App. 264, 268(3) (692 S.E.2d 845) (2010). See also Martin v. State, 321 Ga.App. 776, 777 (743 S.E.2d 462) (2013) (“The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.”) (citation and punctuation omitted). Accordingly, because the Pribeagus failed to carry their burden on this argument, we must affirm the trial court's exclusion of evidence relating to the Pribeagus' claim for damage to their personal property and McKinley's testimony.

2. The Pribeagus also assert that the trial court erred in limiting the evidence that could be presented at trial regarding damages to their real property by excluding evidence of the cost of repair and the testimony of their expert, David Bennett, a contractor with “30 years of experience in the residential and commercial building trades.” Although the Pribeagus have not cited us to Bennett's testimony in the record, we have nevertheless reviewed the affidavit he submitted in support of their opposition to the County's motion for summary judgment. In that affidavit, he asserts that he prepared an estimate of the cost of restoring and repairing the damaged property in the amount of $45,540.81 and further opined that the actions taken by the Pribeagus to their property had not caused or contributed to the flooding.

On appeal, the Pribeagus assert that they are seeking damages for both the dimunition in value to their property affected by the flooding and consequential damages to the remainder5 and that they plan to introduce evidence of the cost of repair only to show how such costs adversely affected the fair market value of their property. See Edwards, 267 Ga. at 737(1)(b) (upholding award of dimunition in value of property and consequential damages in inverse condemnation proceeding); Ogburn Hardware, 273 Ga.App. at 127(1) (same). Cf. Henry County Water and Sewer Auth. v. Adelson, 269 Ga.App. 206, 207(1) (603 S.E.2d 714) (2004) (in considering consequential damages in condemnation action, trial court properly allowed evidence of future flooding to uncondemned portion of property arising from maintenance of reservoir on condemned portion of owner's land).

In analogous circumstances, this Court has found that “evidence of damage to the property as a result of the taking (represented by a cost to cure) may be considered a factor in establishing the reduced fair market value of the remaining property after the taking .” (Citation and punctuation omitted.) Ogburn Hardware, 273 Ga.App. at 126(1). See also Steele v. Dept. of Transp., 295 Ga.App. 244, 247(2) (671 S.E.2d 275) (2008) (cost to cure cannot be considered as a separate element of damages, but may be used to show how the cost to cure adversely affected the value of their remaining property); Dept. of Transp. v. Morris, 263 Ga.App. 606, 608(1) (588 S.E.2d 773) (2003) (evidence of damage to a fence as a result of taking may be considered as a factor in the fair market value of the property after the taking); Dept. of Transp. v. 2.953 Acres of Land, 219 Ga.App. 45, 47(1) (463 S.E.2d 912) (1995) (“evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder.”) (citation and punctuation omitted). See also DeKalb County v. Heath, 331 Ga.App. 179 (770 S.E.2d 269) (2015) (allowing consideration of evidence of cost of repairs in inverse condemnation action arising from flooding of plaintiff's land resulting from County's maintenance of sewer and storm water drainage system). However, where evidence of cost of repair “[plays] no part in the appraiser's calculation of the fair market value” of the property, such evidence does not support a claim of damages in a condemnation proceeding. Morris, 263 Ga.App. at 609(1).

Accordingly, we find that the trial court erred in excluding the Pribeagus' evidence, including Bennett's testimony, regarding the cost of repair and hold that such evidence is admissible to the extent that it is offered as a factor in determining the amount of any diminution in value to the Pribeagus' property (i.e., the difference between the fair market value of the property prior to the taking and the fair market value of the property after the taking) and not as a separate element of damages.

3. The Pribeagus next contend that the trial court erred in excluding evidence on their claim for attorney fees. We agree.

In excluding such evidence, the trial court misapplied Orwig II . In that case, the plaintiffs apparently sought attorney fees as part of their claim for just and adequate compensation arising out of the taking of their property, as no other basis is cited for such an award. See Orwig II, 261 Ga. at 137; DeKalb County v. Orwig, 196 Ga.App. 255, 259(3) (395 S.E.2d 824) (1990). The law was well settled at the time of Orwig II that attorney fees are not included as an element of just and adequate compensation under our Constitution's eminent domain provisions, DeKalb County v. Trustees, Decatur Lodge No. 1602, B.P.O. Elks, 242 Ga. 707, 708 (251 S.E.2d 243) (1978), and thus the Orwigs were not entitled to attorney fees on the basis of their inverse condemnation claim alone.

However, the Pribeagus do not seek attorney fees under the theory of inverse condemnation, but rather assert their claim under OCGA § 13–6–11, alleging that the County acted in bad faith, was stubbornly litigious, and caused them unnecessary trouble and expense.6 After Orwig II, the Georgia Supreme Court expressly held that a county is subject to a fee award under OCGA § 13–6–11, Forsyth County v. Martin, 279 Ga. 215, 219(2)(a) (610 S.E.2d 512) (2005), and further that attorney fees under that statute may be recoverable in an inverse condemnation proceeding. Dept. of Transp. v. Edwards, 267 Ga. 733, 737(1)(b) (482 S.E.2d 260) (1997). See also DeKalb County v. Daniels, 174 Ga.App. 319, 321–22(6) (329 S.E.2d 620) (1985) (upholding award of OCGA § 13–6–11 damages in an inverse condemnation proceeding against a county). Accordingly, the trial court erred in excluding evidence relating to the Pribeagus' claim for attorney fees.

Judgment affirmed in part and reversed in part.

FOOTNOTES

1.  Although it is well settled that counties in this State are subject to the protections of sovereign immunity granted by Article I, Section II, Paragraph IX (e) of the Georgia Constitution, Gilbert v. Richardson, 264 Ga. 744, 747(2) (452 S.E.2d 476) (1994), a claim for the inverse condemnation of property arises under a separate provision of the Georgia Constitution that “itself requires just compensation for takings.” Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 600(2) (755 S.E.2d 184) (2014). See also Ga. Const. of 1983, Art. I, Sec. III, Par. I(a) (“private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid”). Thus, sovereign immunity does not apply in such cases. Sustainable Coast, 294 Ga. at 600(2).

2.  This language may be a quote from the County's motion in limine, which in turn appears to be a quote from some other source.

3.  The Pribeagus' attorney conceded at the hearing on the motion in limine that they could not state a claim for emotional damages.

4.  For example, we cannot determine whether the property even presented a separate claim of damage to personal property or whether such property could be considered a fixture and thus part of the value of the realty. Cf. OCGA § 44–1–2(a)(2) (“ ‘realty’ or ‘real estate’ means ․ [a]ll things permanently attached to land or to the buildings thereon”); Belans v. Bank of America, N.A., 309 Ga.App. 208, 210–11(2) (709 S.E.2d 853) (2011) (“Whatever is placed in a building ․ to carry out the obvious purpose for which it was erected, or permanently to increase its value for occupation or use, becomes a part of the realty, although it may be removed without injury to itself or the building.”) (citation and punctuation omitted).

5.  The County does not dispute that recovery for such consequential damages may be a part of just and adequate compensation in an inverse condemnation proceeding, but it disputes that the Pribeagus can establish their claim to recover any damages.

6.  On appeal, the County concedes that “on the proper facts, a county may be liable for an award of attorney's fees in an inverse condemnation case,” asserting only that the Pribeagus failed to present any evidence of bad faith.

McMILLIAN, Judge.

BARNES, P.J., and RICKMAN, J., concur.