Department of Transportation v. Acree Oil Co.

Carley, Justice,

concurring specially.

In January 1993, the Department of Transportation condemned a part of a tract of land owned by Aeree Oil Company (Condemnee). In January 1994, the issue of just and adequate compensation was tried before a jury. Condemnee appealed from the judgment entered on the jury’s verdict,

*339contending the trial court erred in refusing to admit evidence of post-taking matters to show business losses and evidence of consequential damages caused by the anticipated construction, and erred in excluding evidence of the length and uncertainty of construction and the fact that the project was put “on hold.”

Aeree Oil Co. v. Dept. of Transp., 216 Ga. App. 586, 587 (455 SE2d 590) (1995). The Court of Appeals found Condemnee’s contentions to be meritorious and reversed. Certiorari was granted and this Court now reverses the Court of Appeals. While I concur in that judgment of reversal, I do not concur in the majority’s analysis for the following reasons:

1. Heretofore evidence of “business losses” has been held admissible in only two instances: where such evidence is relevant to the recovery of a separate element of just and adequate compensation or where such evidence is relevant to the value issue of the amount of consequential damages to a remainder. Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825 (387 SE2d 877) (1990). It is undisputed that business losses as a separate element of just and adequate compensation in this case are not recoverable by Condemnee. Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980). Accordingly, I am not, as the majority erroneously suggests in fn. 1, using the phrase “evidence of ‘business loss’ ” to mean evidence “to support a separate, compensable element of [just and adequate compensation].” To the contrary, I am employing that phrase as it presumably was utilized by the Court of Appeals. Relying upon Buck’s Svc. Station v. Dept. of Transp., supra, the Court of Appeals held that it was error to exclude certain of Condemnee’s “business losses” evidence, because that evidence was relevant to the value issue of consequential damages. In Buck’s Svc. Station, supra at 827 (2), this court 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. We reach this conclusion because business property facing loss of business may suffer a diminution in fair market value.

(Emphasis in original.) Buck’s Svc. Station v. Dept. of Transp., supra at 827 (2). In Division 2 of its opinion, the majority accepts the premise of the Court of Appeals that Buck’s Svc. Station is the controlling *340authority, but nevertheless concludes that the trial court did not abuse its discretion in excluding Condemnee’s “speculative evidence of its business losses.” Contrary to the majority, I believe that the Court of Appeals erred in its conclusion that Buck’s Svc. Station is controlling in this case.

As Buck’s Svc. Station clearly holds, evidence of any “business losses” which result in a diminution in the value of the condemnee’s business is admissible as relevant to the issue of consequential damages. Here, however, Condemnee had no business which could be diminished in value and, consequently, Condemnee could have suffered no “business losses.” Condemnee merely owned property which it leased to others for the purpose of operating their business thereon. Compare Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (2) (309 SE2d 816) (1983) (condemnee also owner of business); Glynn County v. Victor, 143 Ga. App. 198 (2) (237 SE2d 701) (1977) (condemnee also owner of business). Thus, the only relevant inquiry here was the value of Condemnee’s property for business rental purposes. State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968). Condemnee is not entitled to produce evidence which is not relevant to that inquiry, under the guise that such irrelevant evidence relates to its “business losses.” Under the evidence, the only business that was run on Condemnee’s property ceased operations three years before the taking and it is irrelevant that Condemnee thereafter was unable to rent the property prior to the taking. Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742) (1982).

The majority states that Condemnee proffered its evidence of “business losses” “in the standard, generic sense of that phrase, i.e., as an integral part of the financial history of the property.” However, evidence of “business losses” has never been employed in a “standard, generic sense,” but has always been used in a specific and limited sense to mean only such evidence as is relevant either to the recovery of a separate element of just and adequate compensation or to the amount of consequential damages to the remainder. Buck’s Svc. Station v. Dept. of Transp., supra. Certain elements of the financial history of the property may be relevant to the value issue of consequential damages, but evidence is not necessarily relevant to the amount of consequential damages simply because it relates to the financial history of the property. Since Condemnee owned no business, the only relevant inquiry was the value of the property for business rental purposes on the date of taking. State Hwy. Dept. v. Hood, supra. In determining the value of the property for business rental purposes, the amount of rent that had been and could be obtained would certainly be relevant and the financial history of the property in that regard would be admissible. Ga. Power Co. v. Cole, 141 Ga. App. 806, 807 (2) (234 SE2d 382) (1977). However, the amount of rent that Con*341demnee had lost would not be relevant to the value of the property for business rental purposes. Cann v. MARTA, 196 Ga. App. 495, 497 (4) (396 SE2d 515) (1990). The amount of rent that had been lost would be relevant only in a suit by Condemnee against the lessee for breach of the lease.

Thus, rather than concurring in the majority’s holding that the trial court did not abuse its discretion by excluding Condemnee’s “speculative evidence of its business losses,” I believe that the trial court correctly determined that Condemnee proffered no evidence, speculative or otherwise, of any “business losses” whatsoever. Since it is clear that no “business losses” evidence was proffered in this case, Glynn County v. Victor, supra, and Dept. of Transp. v. 2.734 Acres of Land, supra, need not be distinguished as cases wherein “business losses” evidence was properly admitted, and I do not concur in the implicit approval of those decisions as set forth in Division 2 of the majority opinion. Victor and 2.734 Acres of Land need only be distinguished as cases wherein the condemnee, as the owner of a business operated on the condemned property, was entitled to introduce “business losses” evidence. This Court should address the issue of whether the “business losses” evidence in those cases was “too speculative and conjectural to be admitted” only in the context of a case involving similar “business losses” evidence. This is not such a case, since Condemnee is not the owner of a business operated on the condemned property and, consequently, could have suffered no “business losses” as the result of the condemnation.

2. The Court of Appeals also held that a “condemnee may show that the future delay and uncertainty of the project affected the value of the condemnee’s property on the date of taking. ...” (Emphasis omitted.) Aeree Oil Co. v. Dept. of Transp., supra at 589 (1). In Division 3 of its opinion, the majority again accepts this premise of the Court of Appeals, but nevertheless concludes that there was no abuse of discretion in “the trial court’s evidentiary rulings as to uncertainty and delay.” However, contrary to the majority, I again believe that the premise of the Court of Appeals is erroneous.

No case cited by the Court of Appeals or the majority stands for the proposition that a condemnee is entitled to introduce evidence of post-taking “uncertainty or delay” in the project. Wright v. MARTA, 248 Ga. 372, 375-376 (283 SE2d 466) (1981) and Dept. of Transp. v. Sequoyah Land Invest. Co., 169 Ga. App. 20, 21 (2) (311 SE2d 488) (1983) stand for the much different proposition that a condemnee is entitled to show, as of the date of the taking, the proposed completion date of the project and the proposed impact of the completed project. A buyer contemplating purchase of the remainder on the date of the taking

*342would take into account the prospect of a completed [project] and the potential benefits that would accrue to the property as a result of its access to the [completed project], but would also take into account that the [project] would not be completed for four years, that the [project] might or might not have the impact he would hope for, and that the full impact of the [project] might not be felt for some time after [completion].

Wright v. MARTA, supra at 375. Likewise, Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 228 (1) (312 SE2d 344) (1983) and Dept. of Transp. v. Delta Machine Prod. Co., 157 Ga. App. 423, 424 (1) (278 SE2d 73) (1981) deal only with the issue of a loss of access as of the date of the taking and neither case holds that evidence of post-taking “uncertainty or delay” in the project is relevant and admissible on the issue of consequential damages.

Thus, in valuing the remainder, Condemnee would be entitled to show what had been, as of the date of the taking, the proposed completion date of the project and the proposed impact of the completed project. Wright v. MARTA, supra; Dept. of Transp. v. Sequoyah Land Invest. Co., supra. In no event, however, would Condemnee be entitled to show any post-taking delay or uncertainty in completion of the project as relevant factors in determining consequential damages in the context of this condemnation proceeding. It is a fundamental principle of the law of eminent domain that compensation is determined by the value of the property at the time of the taking. Housing Auth. of the City of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966). Obviously, it is only the proposed completion date and proposed impact of the completed project as of the date of the taking, not any actual post-taking delay in completion and impact, that can be relevant factors in determining the value of the remainder on the date of the taking. Moreover, upholding the admissibility of evidence of an actual post-taking delay in completion and impact would be violative of the long-standing rule that consequential damages are limited to those which proximately and naturally arose from the condemnation and taking of the condemnee’s own property. Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980), aff'g 151 Ga. App. 807 (261 SE2d 710) (1979). Obviously, a post-taking delay in completion and impact can never proximately and naturally arise from the condemnation and taking of the condemnee’s own property, but can arise only from a post-taking delay in the entire project. “Consideration of damages which arise from devoting the part of the land taken to the use for which it was taken is not the same as consideration of damages which arise from the entire ‘project.’ ” Simon v. Dept. of Transp., 245 Ga., supra at 478.

*343Decided February 19, 1996 — Reconsideration denied March 11, 1996. Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Hulsey, Oliver & Mahar, R. David Syfan, Thomas L. Fitzgerald, for appellant. Adams, Clifton & Sanders, Alton M. Adams, Stewart, Melvin & Frost, Frank M. Armstrong, for appellee.

Condemnee may have inquired about the ultimate completion date of the project, but that inquiry would be irrelevant. The relevant inquiry would be the proposed completion date as of the date of the taking. Wright v. MARTA, supra; Dept. of Transp. v. Sequoyah Land Invest. Co., supra. If a response to this relevant inquiry had been excluded, the error would not be rendered harmless by testimony that the project was “on hold” as the result of a construction hazard created by contamination discovered on a parcel involved in the road project. Such testimony would be no less irrelevant and inadmissible than any other evidence related to post-taking uncertainty and delay. Thus, contrary to the majority’s holding that there was no abuse of discretion in “the trial court’s evidentiary rulings as to uncertainty and delay,” I believe that the trial court correctly determined that Condemnee proffered no admissible evidence as to the proposed completion date and the proposed impact of the project as of the date of taking.

I am authorized to state that Presiding Justice Fletcher and Justice Hines join in this opinion.