Kudzu Capital, LLC v. City of Decatur

368 Ga.App. 32

889 S.E.2d 173

KUDZU CAPITAL, LLC v. CITY OF DECATUR.

A23A0374

Court of Appeals of Georgia.

June 7, 2023

Certiorari Denied November 16, 2023

Schreeder Wheeler & Flint, Scott William Peters, Atlanta, for Appellant.

Beck Zwald & Associates, Luther H. Beck, Jr., John H. Zwald ; Wilson Morton & Downs, Bryan A. Downs, for Appellee.

Miller, Presiding Judge.

In this condemnation action between the City of Decatur ("the City") and Kudzu Capital, LLC ("Kudzu"), Kudzu appeals from the jury's verdict and the trial court's final judgment which awarded Kudzu $1,400,000. On appeal, Kudzu argues that (1) the trial court abused its discretion by denying its motion in limine and by granting two of the City's motions in limine; and (2) the trial court erred by denying several of its requests to charge the jury and by granting the City's request to charge. Finding no error, we affirm the jury's verdict and the trial court's final judgment.

A review of the record shows that the condemned property in this case consists of 4.19 acres of undeveloped real property spread across 16 lots in Decatur, Georgia. The property abuts the West Dearborn Circle right-of-way ¹ and was created pursuant to a subdivision plat for Dearborn Park that was recorded in 1939. West Dearborn Circle, which was formerly an "unopened right-of-way dirt trail," was dedicated to the City pursuant to the 1939 plat, and the City later constructed it as a pedestrian and bicycle pathway in 2012.

In January 2015, Mattie Robinson, the owner of the property at that time, contracted to sell the property to Redwater, LLC ("Redwater"). Redwater subsequently assigned its rights under the contract to Kudzu in June 2016 for $645,000, and Kudzu ultimately purchased the property from Robinson for $336,788.22. After purchasing the property, Kudzu and its representatives sought permission from the City to build on the property and to develop the right-of-way to allow for vehicular access, but the requests were denied because the property essentially consisted of "un-buildable lots."

In January 2018, in connection with its "Decatur Greenway" plan, the City filed a petition against Kudzu to condemn the property, and it requested the appointment of a special master pursuant to OCGA § 22-2-102. ² The trial court subsequently entered an order appointing a special master, and the matter was set for a hearing before the special master. Following a hearing, the special master awarded Kudzu $2,180,000. Both Kudzu and the City appealed the special master's award and requested a jury trial.

At trial, Kudzu presented testimony from an appraiser who determined the property's value using "two scenarios." He explained that under the first scenario, he valued the property with the right-of-way paved or available for pavement at $3,250,000. Under the second scenario, he valued the property "leaving the right-of-way alone" and determined that the property's value was $3,150,000. A second appraiser for Kudzu testified that the valuation of the property with the developed right-of-way was $3,500,000, and the value of the property without the developed right-of-way was $3,230,000. Kudzu also presented testimony from its owner that Kudzu's own internal appraisal valued the property at $4,300,000, which included the value of the right-of-way. The City, on the other hand, presented testimony from its appraiser that the value of the property was $685,000 under a sales comparison approach and that the value of the property under a subdivision analysis approach was $649,000.

Following the trial, the jury awarded Kudzu $1,400,000, and the trial court subsequently incorporated the jury's verdict into a final judgment. Kudzu now appeals.

1. First, in three related enumerations of error, Kudzu argues that the trial court abused its discretion by denying its motion in limine and by granting two of the City's motions in limine. ³ We disagree and conclude that the trial court did not abuse its discretion in granting and denying the motions in limine.

We review the trial court's decisions on the admissibility of evidence, including a denial of a motion in limine, for an abuse of discretion. And motions in limine should only be granted with great care and when there is no circumstance under which the evidence at issue could be admissible at trial[.] By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

(Citation and punctuation omitted.) One Bluff Drive, LLC v. K.A.P., Inc. , 330 Ga. App. 45, 51-52 (3), 766 S.E.2d 508 (2014).

(a) First, Kudzu argues that the trial court abused its discretion by denying its motion to exclude testimony pertaining to the 2016 purchase price of the property and the related tax certificate. We conclude that the trial court did not abuse its discretion in this regard.

It is true that

[t]he sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken. Generally, just and adequate compensation is the fair market value of the condemned property at the time of taking. Fair market value is defined as the price that a seller who desires but is not required to sell and a buyer who desires but is not required to buy would agree is a fair price after due consideration of all the elements reasonably affecting value.

(Citations and punctuation omitted; emphasis supplied.) Evans v. Dept. of Transp. , 331 Ga. App. 313, 315 (1), 771 S.E.2d 20 (2015). Still, "[a]ny evidence is relevant which logically tends to prove or disprove a material fact which is at issue in a case, and every act or circumstance serving to elucidate or throw light upon that material issue is relevant and admissible." (Citation and punctuation omitted.) Clary v. City of Stockbridge , 300 Ga. App. 623, 625 (1), 686 S.E.2d 288 (2009). "The trial court has wide discretion to admit testimony of questionable releavnce. In fact, it has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee." (Citation and punctuation omitted.) Troup County v. Mako Dev., LLC , 352 Ga. App. 366, 372-373 (3), 835 S.E.2d 44 (2019).

We conclude that the price Kudzu paid for the property and the corresponding tax certificate were relevant in determining the adequate compensation for the taking. The evidence showed that in June 2016, Kudzu paid Robinson $336,788.22 for the property. The City also presented the corresponding tax certificate from Kudzu's 2016 purchase to show that Kudzu paid a total sum of $985,000 for the property, which included the additional money Kudzu paid to Redwater for its involvement in the transaction with Robinson. Kudzu, on the other hand, presented evidence that the fair market value of the property at the time of the taking was $4,300,000. Because the sole issue at trial was the fair market value of the property, which was greatly contested at trial, we conclude that the trial court did not abuse its discretion by admitting this evidence at trial. See Robert Stovall Family, L.P. v. Carroll County Water Auth. , 255 Ga. App. 223, 224, 564 S.E.2d 763 (2002) (trial court did not abuse its discretion in admitting into evidence the purchase price that the condemnee paid for the property 12 years before the county's taking because the evidence was relevant in determining the amount of compensation for the taking); Housing Auth. of the City of Calhoun v. Spink , 91 Ga. App. 72, 77, 85 S.E.2d 80 (1954) (holding that the purchase price the condemnee paid for property nearby the condemned property was relevant in the condemnation proceeding). ⁴ Therefore, this enumeration of error fails.

(b) Next, Kudzu argues that the trial court abused its discretion by granting the City's motion to exclude evidence of Kudzu's alleged right to require the City to open the West Dearborn Circle right-of-way for vehicular use because the evidence was relevant in determining just and adequate compensation for the property. We conclude that the trial court properly excluded this evidence.

Generally,

[w]here the owners of a tract of land subdivide it into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision. The owners of lots in the subdivision have an easement in these public areas whether or not there has ever been an acceptance of the dedication by public authorities or the public generally.

(Citation and punctuation omitted.) Northpark Assoc. No. 2, Ltd. v. Homart Dev. Co. , 262 Ga. 138, 139 (1), 414 S.E.2d 214 (1992). But a property owner's mere easement to a roadway does not necessarily confer a right to require a county or municipality to open or maintain that roadway. Indeed, in Chatham County v. Allen , 261 Ga. 177, 402 S.E.2d 718 (1991), the issue before the Supreme Court of Georgia was whether mandamus would lie to require a county to develop an unopened and dedicated road in a subdivision. There, a property owner purchased a number of lots in a subdivision, and some of the streets in the subdivision which had been dedicated to the county remained unopened and undeveloped. Id. In reversing the superior court's grant of mandamus to the property owner, the Court reasoned that unopened, undeveloped, proposed roads in a subdivision are not public roads ⁵ by virtue of dedication and acceptance, and thus the county was not obligated to open or maintain those roads. Id. The Court revisited this issue in ...