Department of Transp. v. 2.734 Acres of Land, 66326

Citation309 S.E.2d 816,168 Ga.App. 541
Decision Date28 September 1983
Docket NumberNo. 66326,66326
CourtUnited States Court of Appeals (Georgia)

Michael J. Bowers, Atty. Gen., Robert S. Stubbs II, Executive Asst. Atty. Gen., Marion O. Gordon, Sr. Asst. Atty. Gen., Roland F. Matson, Michael E. Hobbs, William C. Joy, Asst. Attys. Gen., A. Joseph Nardone, Sp. Asst. Atty. Gen., for appellant.

J. Corbett Peek, Jr., James G. Peek, Charles N. Pursely, Jr., Atlanta, for appellees.

SHULMAN, Chief Judge.

This appeal involves a condemnation proceeding between appellant Department of Transportation and appellees Carpets by Ralph Currie, Inc. ("Currie"), and Concept 70 Atlanta, Inc. ("Concept 70"). On October 6, 1980, appellant filed its declaration of taking, condemning 2.734 acres of land and various ownership interests connected therewith, including the two leasehold interests that are the subject of this appeal. The land is located at the northwest quadrant of the intersection of Interstate Highways 85 and 285. Appellees were lessees of a building located on the condemned property which building they used for retail sales showrooms and for warehousing the carpet sold by Currie and the furniture sold by Concept 70. On September 2, 1980, after a futile attempt to relocate in the immediate vicinity, Currie sold its assets to Carpet Ventures, Inc., but expressly reserved the right to collect any proceeds allocated pursuant to the condemnation proceedings.

Appellees testified at trial that their location at the condemned site was unique because of the high visibility and exposure from I-85 and I-285, the easy access to both of these interstate highways, and the fact that the area surrounding the property was relatively uncluttered by competing traffic. Furthermore, appellees asserted, each store drew customers to the other's store since both businesses were involved in home furnishings. Each appellee had stores in other locations in metropolitan Atlanta but both insisted that the stores located on the condemned premises were the cornerstones of their businesses.

Appraisers for appellant admitted that an actual purchase of a leasehold interest was "hard to track down" and that they did not find another such sale on which to base their appraisals. Both appraisers used methods of valuation different from the "direct comparison approach." Their estimates put the value of appellees' leasehold interest at approximately $40,000 for Currie and approximately $215,000 for Concept 70. Appraisers for appellees testified that the unique value of Currie immediately before the condemnation was $484,000 and that the value after condemnation was zero. The appraisers testified that the replacement value of Concept 70's leasehold interest would equal approximately $1,000,000.

The jury returned a verdict in favor of Currie for $52,285 for the value of the leasehold interest and $147,715 for the value of the business loss. The jury also returned a verdict in favor of Concept 70 amounting to $590,000 for the leasehold value and $500,000 for the value of the business loss. Appellant bases its appeal on numerous alleged errors on the part of the trial court.

1. Appellant argues that the trial court's denial of its motion in limine regarding evidence of the business loss damages of both appellees was error.

"[B]usiness losses are recoverable as a separate item only if the property is 'unique.' [Cits.]" D.O.T. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315, 265 S.E.2d 10. "Whether the property is unique is a jury question. [Cit.]" MARTA v. Ply-Marts, Inc., 144 Ga.App. 482, 484, 241 S.E.2d 599. "The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony. [Cits.]" (Emphasis supplied.) Housing Auth. of Atlanta v. Troncalli, 111 Ga.App. 515, 517, 142 S.E.2d 93. Since only slight evidence is necessary to authorize a jury charge on the uniqueness of a business and the subsequent recovery of its losses, it would be gross error to grant a pre-trial motion that would prevent any attempt to present such evidence to the jury. Furthermore, even if the evidence had not been sufficient to authorize an instruction on the separate recoverability of the business losses, evidence of those losses would be admissible to establish "consequential damages to the remaining property." Dixie Hwy. Bottle Shop, v. D.O.T., 154 Ga.App. 405, 406, 268 S.E.2d 442. The trial court was therefore correct in denying appellant's motion in limine. The fact that Currie had previously been sold has no effect on this holding. See Division 2 of this opinion.

2. Appellant objects to the trial court's charge relating to the sale of the business and authorizing recovery of leasehold and business loss damages despite the fact that Currie was not in existence on the date of the taking.

Appellant failed to object to this particular charge at trial, thereby waiving appellate consideration of this issue. OCGA § 5-5-24 (Code Ann. § 70-207); Hunter v. Batton, 160 Ga.App. 849(1), 288 S.E.2d 244. Even so, if no waiver had occurred, appellant's objection would still have been without merit. This situation is controlled by Glynn County v. Victor 143 Ga.App. 198(2), 237 S.E.2d 701, where there was evidence that the business in question had closed some three years before the date of taking. The court distinguished Glynn County from Housing Auth. of Decatur v. Schroeder, 222 Ga. 417, 151 S.E.2d 226, and its progeny, stating that Schroeder involved the admissibility of evidence of fair market value as of a date other than that of the actual taking whereas Glynn County involved the right to specific damages as other elements of compensation. See Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884.

In the present case, the time lapse between the sale of the business and the date of taking was only one month and the catalyst of the sale was undoubtedly the impending condemnation proceedings. Accordingly, the facts in support of the trial court's charge in this instance present an even stronger case than those in Glynn County v. Victor, supra.

3. Appellant contends that the trial court's charge regarding the alleged uniqueness of appellees' businesses was improper because it was an incorrect statement of law.

The search for the present test of when a business is adequately "unique" so as to allow the recovery of business loss damages in a condemnation proceeding leads one through a convoluted maze of seemingly irreconcilable decisions. In Housing Auth. of Atlanta v. Troncalli, supra, this court stated the rule as follows: "If the property must be duplicated for the business to survive, and if there is no substantially comparable property within the area, then the loss of the forced seller is such that market value does not represent just and adequate compensation to him." Id., p. 518, 151 S.E.2d 226. This "locality rule" remained undisturbed until 1968 when the court, in City of Gainesville v. Chambers, 118 Ga.App. 25, 162 S.E.2d 460, expressly rejected it calling the Troncalli rule "too generally inclusive of almost all real property." Id., p. 27, 162 S.E.2d 460. The court stated, " 'Before weight is given to peculiar value to the owner, it must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar--its advantages to him more or less exclusive--that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it; property with characteristics of location or construction which limit its usefulness, and therefore, its value, to the particular owner of it, so that these elements of value cannot pass to a third party ...' [Cits.]" Id. It should be noted, however, that the Chambers case does not involve a business loss situation but concerns only residential and rental real estate. In fact, the court in Chambers explicitly recognizes that it is factually inapposite to Troncalli.

In Hinson v. D.O.T., 135 Ga.App. 258, 217 S.E.2d 606 (a business loss situation), this court cited Troncalli and followed the locality rule it had espoused, apparently recognizing that Chambers was not factually on point.

Three years later, in MARTA v. Ply-Mart, Inc., supra, while addressing an evidentiary problem, the court cited Chambers as authority for the general rule of uniqueness, seemingly ignoring its factual differences. It was stated, however, that evidence of the "particular advantages of the condemned property's location" was admissible to authorize consideration of business loss damage. Therefore, although citing Chambers, the court also supported the Troncalli interpretation of the uniqueness rule. Later in the same year, the court again cited Troncalli as the sole controlling authority regarding the determination of a business' uniqueness. D.O.T. v. Kendricks, 148 Ga.App. 242, 250 S.E.2d 854.

A third rule was introduced in D.O.T. v. Eastern Oil Co., 149 Ga.App. 504(1), 254 S.E.2d 730. The court held there that "[u]nique properties 'are generally not of a type bought or sold on the open market. Hence, there is no market value in the ordinary sense of the term, since market value pre-supposes a willing buyer and willing seller, which do not ordinarily exist in such a case ... [T]herefore, market value will not generally be the measure of compensation.' [Cit.]" Id., p. 505, 254 S.E.2d 730. The Supreme Court followed this line of reasoning in Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229, 264 S.E.2d 174, generalizing this view, however, by stating that "unique property is simply property which must be valued by something other than the fair market value." Id., p. 230, 264 S.E.2d 174. It is the view of this court that the Supreme Court did not intend to suggest that a business was unique...

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