Dept. of Transp. v. Wallace Enterprises

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Dept. of Transp. v. Wallace Enterprises, 505 S.E.2d 549, 234 Ga. App. 1 (Ga. App. 1998)
• Decision Date: 17 August 1998
• Docket Number: No. A98A1776.,A98A1776.
• Parties: DEPARTMENT OF TRANSPORTATION v. WALLACE ENTERPRISES.

505 S.E.2d 549

234 Ga. App. 1

DEPARTMENT OF TRANSPORTATION v. WALLACE ENTERPRISES.

No. A98A1776.

Court of Appeals of Georgia.

August 17, 1998.

Certiorari Denied January 8, 1999.

Thurbert E. Baker, Attorney General, Cathy A. Cox-Brakefield, Assistant District Attorney, Dwyer, White & Sapp, William W. White, Anne W. Sapp, Atlanta, for appellant.

Holt, Ney, Zatcoff & Wasserman, Joseph S. Jacobson, Jay F. Castle, Atlanta, for appellee.

ELDRIDGE, Judge.

Wallace Enterprises ("Wallace") owns and operates a gasoline convenience store and car wash at the intersection of Maddox Street (State Highway 120) and Old Norcross Road in Alpharetta, Fulton County, Georgia. The property consists of .921 acre of improved land containing a gasoline convenience store, car wash, and parking area.

On September 19, 1995, the Department of Transportation ("DOT") brought a quick-take condemnation procedure against the property to obtain immediate title and possession to the part taken of the property, as well as the easement area. The take involved real estate, fixtures, and improvements: (1) 5,296 square feet (.122 acre) of land in fee simple; (2) 3,110 square feet (.071 acre) of land for a permanent slope and maintenance easement; and (3) personal property, fixtures, and improvements, i.e., concrete pavement, parking spaces, curbing, a detention pond, landscaping, and lighting. The business contains two pump islands with three pumps each located perpendicular to the existing right-of-way. Neither of the pump islands nor the convenience store was taken. Prior to the take, there was one commercial driveway which DOT replaced with two commercial driveways.

After the taking, the remainder suffered permanently impaired access, permanently impaired traffic flow within the site, reduced capability to handle multiple gasoline customers, insufficient parking, and inadequate visibility from the road. Wallace had to incur the expense of applying for and obtaining a variance from the City of Alpharetta's setback requirements as a result of the taking.

At trial, Wallace's expert appraisal testimony and other evidence showed actual and substantial consequential damages of between $844,805 and $859,761.

DOT contended that there were no consequential damages and that the actual damages were $211,250. DOT contended that Wallace should mitigate any consequential damages and tendered a plan that their expert witness contended would eliminate any consequential damages by implementing its cost to cure plan. Under DOT's plan, the pump islands would be moved back to improve site circulation. Parking and light poles would also have to be relocated. Such plan was contended to result in only four feet in loss between each pump island and the interior of the property's concrete curbing. Such plan would cost an estimated $95,097. At the time of trial, Wallace had taken no measures to mitigate any damages to the remaining property.

Wallace's expert appraisal testimony showed consequential damages to the remainder of the property, above and beyond any mitigation damages, of between $470,600 and $483,758. Such consequential damages were based upon conditions of the property immediately after the take. In addition to appraisal testimony, Wallace presented evidence to corroborate that there had been consequential damages; a gasoline convenience store site expert testified that the sales at the property had dramatically declined as a result of the take and not from the temporary construction or competition. No evidence of business expenses was tendered.

The jury returned a verdict for $612,000, which was entered as a judgment on May 23, 1997.

DOT filed a timely motion for new trial. On December 16, 1997, the trial court denied the motion. A timely notice of appeal was filed.

1. DOT's first enumeration of error is that the trial court erroneously admitted evidence of a temporary reduction in gross sales that resulted from the temporary period of construction. We do not agree.

The trial court properly denied such objection when there existed a material issue of fact as to whether the reduction in gross sales was temporary or permanent and whether such reduction in gross sales was caused by consequential damages or caused by construction and/or competition. Buck's Svc. Station v. Dept. of Transp., 259 Ga. 825, 827, 387 S.E.2d 877 (1990), held "that evidence of any business losses which result in a diminution of the value of a condemnee's business is admissible. However, evidence of temporary loss of business is admissible not for the purpose of recovering for the temporary loss of business but for the limited purpose of demonstrating fair market value of the land not taken immediately after the taking.... It is up to the trier of fact to determine whether the business losses suffered as a result of a temporary easement were a mere inconvenience or whether they resulted in a diminution of the value of the condemnee's interest in the land not taken." (Emphasis in original.) Accord Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271(1), 404 S.E.2d 121 (1991). "Where a part of the property is condemned and the business continues to operate on the remaining property, the business may suffer damages during the construction of the public project; if the business losses are caused primarily by severe inconveniences from the construction of the project and the business will return to normal the completion of construction, evidence of business losses is not admissible. [Cits.]" Bill Ledford Motors v. Dept. of Transp., 225 Ga.App. 548, 550-551, 484 S.E.2d 510 (1997). Unlike either Timmers Chevrolet or Ledford Motors, the trial court properly denied the objection when there existed a material issue of fact between the opinions of opposing experts as to whether or not these were temporary losses and the causes and whether the business would ever return to normal. DOT, while admitting that there would be...