Department of Transp. v. Arnold

• Decision Date: 09 March 2000
• Docket Number: No. A00A0646.,A00A0646.
• Citation: 530 S.E.2d 767,243 Ga. App. 15
• Court: Georgia Court of Appeals
• Parties: DEPARTMENT OF TRANSPORTATION v. ARNOLD.

530 S.E.2d 767

243 Ga. App. 15

DEPARTMENT OF TRANSPORTATION v. ARNOLD.

No. A00A0646.

Court of Appeals of Georgia.

March 9, 2000.

Reconsideration Denied March 22, 2000.

Thurbert E. Baker, Attorney General, R.O. Lerer, Senior Assistant Attorney General, Law Offices of James S. Howell, Donna W. Howell, Mark Weinstein, Weiner, Yancey, Dempsey & Diggs, Robert W. Diggs, Atlanta, for appellant.

Gore, Lee & Curry, Luke F. Gore, Austell, for appellee. ELDRIDGE, Judge.

The Georgia Department of Transportation (DOT) acquired by condemnation 0.044 acres (20 feet × 100 feet) of land in fee simple, a permanent slope easement (15 feet × 100 feet), and an additional temporary driveway easement from Dr. Allen K. Arnold. The total parking area of 55 feet by 100 feet for Arnold Chiropractic, from which the total take came, had 35 feet by 100 feet affected, leaving only 20 feet by 100 feet not subject to the rights acquired by DOT. Prior to the taking, Arnold had 17 parking spaces. After trial, the jury returned a general verdict for $115,510, upon which judgment was entered on February 2, 1999, but DOT had tendered only $39,700. DOT contends that the trial court erred in allowing the jury to consider business loss claims as separate damages and in support of consequential damages, in denying admission of expert opinion as to future profitability beyond 1995, and in refusing to charge on mitigation of damages. We do not agree and affirm the judgment of the trial court.

On the date of taking on October 14, 1993, Arnold had an office on the subject property in Mableton; however, in November 1990, he had moved this office to Austell. But the Austell office proved to be a poor business location; therefore, he reopened the Mableton office in 1992. From January 1992 until March 1994, Arnold operated at both Mableton and Austell. After the taking and beginning of construction, Arnold consolidated all his business at one new location in Mableton in 1994.

1. DOT contends that the trial court erred in allowing business loss as a separate item of damages. We do not agree.

DOT contends that separate business loss could not be recovered, since "his evidence was not sufficient to support a separate business loss recovery because it showed that the business had not been totally destroyed and had successfully relocated."

Peculiar value for land is confined to property having an existing use [to] which the owner of the property is devoting it at the time it is taken by eminent domain when such land possesses a peculiar value for such use. 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.... The issue of whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question.

(Citations and punctuation omitted.) Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga.App. 348, 353(3), 299 S.E.2d 594 (1983). See Housing Auth. &c. of Atlanta v. Southern R. Co., 245 Ga. 229, 230(1)(A), 264 S.E.2d 174 (1980); Dept. of Transp. v. Sharpe, 213 Ga.App. 549, 550-551(1), 445 S.E.2d 343 (1994).

When dealing with eminent domain, property has a broad and liberal meaning under the constitution. See Duffield v. DeKalb County, 242 Ga. 432, 433-435(2), 249 S.E.2d 235 (1978); Woodside v. City of Atlanta, 214 Ga. 75, 85, 103 S.E.2d 108 (1958). Therefore, when land qualifies as peculiar because of the peculiar relationship to the owner and when any business operated on such location has a particular "good will," an intangible property interest peculiar to the land, identified only with that location in the minds of clients. Business losses reflect the value of such intangible property interest that is taken or destroyed in the condemnation and cannot be relocated, because such value is peculiar to that land and the owner's relationship to the business conducted on that location. See generally Duffield v. DeKalb County, supra at 433-434, 249 S.E.2d 235; see also Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 352-353, 299 S.E.2d 594. Arnold "had to have irrevocably lost something of value that could not be duplicated elsewhere." Housing Auth. &c. of Atlanta v. Southern R. Co., supra at 232, 264 S.E.2d 174. Here it was "good will" associated with the business at that location.

This property was also unique, as well as peculiar, being located on the corner of Harding Drive and Bankhead Highway with adequate parking and having been a long-established business location of Arnold and of the Arnold family; it had been closely associated with the Arnold family businesses at such location since the 1930s and where most of Arnold's patients were accustomed to visit. Arnold, himself, had occupied such location for more than 20 years. Such owned office space had 3,000 square feet, but upon relocation only 1,300 square feet of rental space could be acquired. The business location represented the Arnold family and the good will associated with the Arnold business located there. Thus, the property not only was unique but also peculiar, so that the fair market value standard of evaluation was constitutionally inadequate to value such property interest. See Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 353-355, 299 S.E.2d 594. "In other words unique [and peculiar] property is simply property which must be valued by something other than the fair market value standard." Housing Auth. &c. of Atl. v. Southern R. Co., supra at 230(1)(A), 264 S.E.2d 174. "`Unique' [or peculiar] property is measured by a variety of non-fair market methods of valuation, including the cost and income methods." Id.

The loss of [property's] use for [particular] purposes is an element for consideration in awarding just compensation to the owner of the realty. The destruction of an established business is and must be a separate item of recovery.... The loss of an established business is an altogether different matter; such loss not merely reflects the value of the real estate, for frequently the value of the business greatly exceeds that of the premises where it is conducted.

(Citation omitted.) Bowers v. Fulton County, 221 Ga. 731, 739(2), 146 S.E.2d 884 (1966). Here the property taken represented a public relations asset of Arnold as a family business presence in the community and as a form of intangible property, good will, which could not be relocated successfully and which could not attach to the business of another in the same location.

The term property is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed. The term property comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use.

(Citations and punctuation omitted.) Id. at 737, 146 S.E.2d 884. See also Woodside v. City of Atlanta, supra at 83, 103 S.E.2d 108.

Evidence of business losses attributable to the taking is admissible in a condemnation action where such losses are sought as a separate element of damages as to unique or peculiar property as well as when such evidence shows a diminution of value of the land not taken. Buck's Svc. Station v. Dept. of Transp., 259 Ga. 825, 827(2), 387 S.E.2d 877 (1990); see also Dept. of Transp. v. Scott, 268 Ga. 579, 580, 492 S.E.2d 216 (1997); Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271(1), 404 S.E.2d 121 (1991). It is within the sound discretion of the trial court to admit or deny admission of such evidence when causation of such loss is in question. Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 352-353, 299 S.E.2d 594. Here, there existed some evidence as to causation which was sufficient for the jury to determine what business losses had been caused by the taking. Timmers Chevrolet v. Dept. of Transp., supra at 271, 404 S.E.2d 121; see Dept. of Transp. v. Baxley, 194 Ga.App. 29, 30(2), 389 S.E.2d 519 (1989); Dept. of Transp. v. Consolidated Equities Corp., 181 Ga.App. 672, 673-674(1), 353 S.E.2d 603 (1987).

For post-taking business losses to be recoverable separately, there must be either "a total taking of the business", Dept. of Transp. v. Acree Oil Co., 266 Ga. 336, 467 S.E.2d 319 (1996), or permanent business loss as opposed to temporary business loss due to construction inconvenience, Housing Auth. &c. of Atlanta v. Southern R. Co., supra at 230; Dept. of Transp. v. Fitzpatrick, 184 Ga.App. 249-250(2), 361 S.E.2d 241 (1987). In this case, Arnold showed that he could not operate the business in the original Mableton location any longer, because DOT took substantially all of his parking, and he sustained a permanent loss in business related to moving from the original location. Therefore, the business was totally destroyed as a chiropractic office at the taking location. See Dept. of Transp. v. George, 202 Ga.App. 270, 271-272(3), 414 S.E.2d 307 (1991). Arnold also showed that there was a loss in patient visits at the new location in Mableton, because patients did not come to the new...