Metropolitan Atlanta Rapid Transit Authority v. Funk, A92A1635

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BEASLEY; ANDREWS
• Citation: 426 S.E.2d 623,206 Ga.App. 868
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. FUNK et al.
• Docket Number: No. A92A1635,A92A1635
• Decision Date: 02 December 1992

Page 623

426 S.E.2d 623 206 Ga.App. 868 METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
v.
FUNK et al. No. A92A1635. Court of Appeals of Georgia. Dec. 2, 1992.
Reconsideration Denied Dec. 17, 1992.
Certiorari Granted March 23, 1993.

Page 624

[206 Ga.App. 874] Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Elizabeth E. Long, Susan B. Forsling, Atlanta, for appellants.

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., Atlanta, for appellees.

[206 Ga.App. 868] BEASLEY, Judge.

Following a jury verdict and judgment in favor of condemnee Dr. Sidney A. Funk, condemnors Fulton County and Metropolitan Atlanta Rapid Transit Authority (MARTA) appeal.

1. The appeal is not rendered moot under OCGA § 5-6-48(b)(3) by the condemnors' payment into the registry of the court the difference between the amount originally paid in and the amount of the judgment. See Clayton County Water Auth. v. Harbin, 192 Ga.App. 257(1), 384 S.E.2d 453 (1989). Appellee Funk's motion to dismiss the appeal is denied.

2. The case involves the condemnation of a medical office condominium owned by Dr. Funk and leased by him to Sidney A. Funk, M.D., P.C., the professional corporation through which Dr. Funk practiced. The property, located in the vicinity of three hospitals, was condemned for the extension of a rapid rail line.

The issues at trial were (1) the amount of just and adequate compensation to be paid for the property, and (2) the amount of compensation, if any, to be paid for relocation expenses. At issue on appeal are three jury instructions.

Several witnesses testified as to the fair market value of the property. The experts for MARTA gave a range of $219,445 and $227,500; the condemnees and their experts placed the value of the property between $243,000 and $440,000.

Dr. Funk moved his practice to a space that was almost twice that of the condemned space. Although his professional corporation's rent at the condemned property was $17.50 per square foot per year, the rent at the new location was $21.50 per square foot per year. In addition to $70,850 of improvements paid for by the landlord, Funk testified to relocation and renovation costs which exceeded $100,000: $64,000 to build out the new space; $7,036 for equipment and installation of a new telephone system; $235 for wiring; $6,783.72 for new [206 Ga.App. 869] furniture; $1,501.55 for stationery; $310 for stereo wiring; $15,000 for Funk's personal time associated with the move; $2,000 for artwork; $872.05 for moving expenses; and $3,213 in decorator's fees. On MARTA's objection, the condemnees

Page 625

withdrew evidence of the cost of new furniture, resulting in condemnees asking the jury for $94,441 in relocation costs. The lump sum of $310,000 was awarded for the property and relocation expenses, without allocation.

(a) MARTA and Fulton County point to error in charging the jury that it could award condemnees relocation expenses without instructing the jury that it must first find that the property was unique under one of the three uniqueness tests authorized by Georgia law.

Appellants objected to the trial court's failure to charge that condemnees could not recover relocation expenses unless they proved that the property involved was unique. They also objected to the court's modification of their request to charge that if the jury found the property to be unique, it could then award reasonable relocation expenses.

The court instructed the jury that fair market value normally was the measure for determining the value of the acquired property and that it might not consider any unique or peculiar value of the property to the owner as a yardstick for measuring the property value unless the evidence showed that the unique or peculiar value to the owner was not the same as the fair market value. The court then instructed the jury on three alternate theories for determining whether property is unique and that it could award "compensation for those relocation expenses that were reasonably necessary for the condemnee to relocate to another site." The court continued: "You may not award compensation nor any relocation expenses that you find to be unreasonable or unnecessary to place the owner back into substantially the same monetary condition that he was in prior to the taking. In other words, defendant seeks to recover here certain expenses for relocation. You will have to look at the circumstances here and see how much it will cost him to relocate and be in substantially the same position he was in prior to the taking of his property. Obviously, if you give him more than that, you would take it from the condemnees; and if you give him less than that, he would suffer a loss of his property with respect to that. It's a jury question then as to what is a compensation for relocation, and that's a jury question. You may consider that along with the fair market value of the property in trying to determine just and adequate compensation in this case."

Thus, although the trial court did charge the jury on the question of uniqueness in regard to the value of the property, it did not do so in regard to the condemnees' relocation expenses. Was an instruction on finding uniqueness prior to determining relocation expenses necessary?

[206 Ga.App. 870] Appellants maintain that although the issue has not been squarely addressed by the appellate courts, Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), implicitly requires that the recovery of relocation expenses, like business damages, be predicated on proof that the property is in some way unique. In Bowers, it was determined that relocation expenses might be awarded in connection with the condemnation of real estate upon which an established business operated. The land which contained an office building was condemned. At trial, the court refused to instruct the jury that lost profits, business losses, and reasonable relocation expenses could each be recovered separately from the amount awarded to the condemnee for the value of the real estate. The Supreme Court held that charges on these issues should have been given. Id. at 738, 146 S.E.2d 884.

Bowers does not mandate that...