Department of Transp. v. Baxley, A89A1133
| Decision Date | 28 November 1989 |
| Docket Number | No. A89A1133,A89A1133 |
| Citation | 194 Ga.App. 29,389 S.E.2d 519 |
| Parties | DEPARTMENT OF TRANSPORTATION v. BAXLEY et al. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., Roland F. Matson, Sr. Asst. Atty. Gen., Zorn & Caldwell, William A. Zorn, Jesup, for appellant.
Miles, Baker & Morris, Baxley, Keith M. Morris, for appellees.
After a jury verdict of $44,075 for condemnees, the Department of Transportation (DOT) brings an appeal from the judgment entered thereon and the denial of its motion for new trial.
DOT condemned a ten-foot strip of land owned by condemnees and adjacent to their grocery business in Baxley. The pretrial order provided that the jury issues were: the value of the land taken; the value of the construction easement; the value of the "loss of use" of the property resulting from the condemnation. However, upon the call of the case for trial the condemnees requested a continuance in order to present a claim for destruction of their business. The trial court denied the continuance motion but allowed amendment of the pretrial order to include that issue.
DOT asserts three grounds of error: the amendment of the pretrial order over its objection; the admission of evidence as to the sales and gross receipts of the grocery business without evidence of expenses; a charge by the trial court that damage to the business could be considered in determining consequential damages.
1. Once a pretrial order is entered, "a party may not amend without leave of court or consent of the opposite party." Gaul v. Kennedy, 246 Ga. 290, 291(1), 271 S.E.2d 196 (1980). Condemnees sought modification of the pretrial order as they were required to do. See Gilbert v. Meason, 145 Ga.App. 662, 663(1), 244 S.E.2d 601 (1978); Dumas v. Beasley, 218 Ga. 349, 352, 128 S.E.2d 59 (1962). In passing upon the issue of whether to allow an amendment, the trial court considers if permitting such amendment would prevent manifest injustice and in doing so it is clothed with a broad discretion with which the appellate courts are loath to interfere. See Ambler v. Archer, 230 Ga. 281, 287-88, 196 S.E.2d 858 (1973).
Counsel for DOT was offered the opportunity at trial to interview the witness involved and chose not to. In the spirit of the CPA that cases be decided on their merits and to allow the consideration of all questions fairly within the ambit of the contested issues, the trial court was not precluded by law from permitting the amendment of the pretrial order to include the issue of destruction of or damage to the business. Ambler, supra; Cooper v. Rosser, 232 Ga. 597, 598, 207 S.E.2d 513 (1974).
2. The accountant for the grocery business of condemnees testified as to gross receipts or sales. He also related that the business had lost about $5,000 in 1988. DOT moved to strike this testimony on the ground that, in the absence of business expenses, evidence as to gross sales is inadmissible. See Mauney v. Dept. of Transp., 169 Ga.App. 563, 313 S.E.2d 782 (1984). This would be true if the sole purpose of the testimony was to establish lost profits. However, loss of business and profits from a business located on the property not taken but resulting from the condemnation may be considered as to its effect on the market value of the remainder, as a factor in determining consequential damages. State Hwy. Dept. v. Hood, 118 Ga.App. 720, 165 S.E.2d 601 (1968).
"[I]n the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which the business is located are not a separate element for compensation." Dept. of Transp. v. Dent, 142 Ga.App. 94, 95(3), 235 S.E.2d 610 (1977). Nevertheless, Williams v. State Hwy. Dept., 124 Ga.App. 645, 647(2), 185 S.E.2d 616 (1971).
A distinction exists between situations in which the property being condemned is owned by one party and the business thereon is owned by another and situations in which both the business and property are owned by one individual or entity. Dept. of Transp. v. Kendricks, 148 Ga.App. 242, 244(1), 250 S.E.2d 854 (1978); State Hwy. Dept. v. Thomas, 115 Ga.App. 372, 376, 154 S.E.2d 812 (1967). As explained in Kendricks: "in the absence of the total destruction of a business conducted on the partially condemned property where both the property and the business are considered as one property right and are owned by one person or interest, the partial business loss cannot be established as a separate item of...
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