PRIBEAGU Et Al. v. GWINNETT COUNTY

FOURTH DIVISION
BARNES, P. J.,
MCMILLIAN and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 23, 2016

In the Court of Appeals of Georgia
A15A2026. PRIBEAGU et al. v. GWINNETT COUNTY.

MCMILLIAN, Judge.

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 SE2d 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 SE2d

810) (2005). See also Blackwell v. Potts, 266 Ga. App. 702, 705 (1) (598 SE2d 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.

2
In Georgia, “[a] county, unlike a municipality, is not . . . generally liable for creating

nuisances.” Duffield v. DeKalb County, 242 Ga. 432, 434 (2) (249 SE2d 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 SE2d 513)

(1991) (“Orwig II”). See also Columbia County v. Doolittle, 270 Ga. 490, 491 (1)

(512 SE2d 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

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 SE2d
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 SE2d 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).

3
 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 SE2d 260) (1997). See also Howard v.

Gourmet Concepts Intl., Inc., 242 Ga. App. 521, 524 (3) (529 SE2d 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 SE2d 777) (1980). See also Dept. of Transp. v. White,

270 Ga. 281, 282 (508 SE2d 407) (1998); Flo-Rob, Inc. v. Colonial Pipeline Co., 170

Ga. App. 650, 651 (317 SE2d 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

4
the taking.” (Citation and punctuation omitted.) Dept. of Transp. v. Ogburn

Hardware & Supply, Inc., 273 Ga. App. 124, 126 (1) (614 SE2d 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 SE2d 388) (2007), we have

undertaken our own review of the record and find that their complaint asserts only

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.

5
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

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 SE2d 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).

6
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 SE2d 845) (2010). See also Martin v.

State, 321 Ga. App. 776, 777 (743 SE2d 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

7
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 SE2d 714) (2004) (in

considering consequential damages in condemnation action, trial court properly

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.

8
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 SE2d

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

SE2d 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 SE2d 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 SE2d 269) (2015) (allowing consideration of evidence of cost of repairs in

inverse condemnation action arising from flooding of plaintiff’s land resulting from

9
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 SE2d 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

10
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 SE2d 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 SE2d 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 SE2d 260) (1997). See also

DeKalb County v. Daniels, 174 Ga. App. 319, 321-22 (6) (329 SE2d 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.

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.

11
 Judgment affirmed in part and reversed in part. Barnes, P. J., and Rickman,

J., concur.

12