concurring specially.
While I agree with the majority that the trial court erred in granting that portion of DOT’s motion in limine directed to evidence of business losses, I disagree with its decision limiting the condemnee to the introduction of relevant evidence of permanent business losses, and its narrow interpretation of the Supreme Court’s decision in Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987). I further believe that its reliance on Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980), is misplaced, and in light of the Supreme Court’s holding in Hillman, I question the continued viability of Housing Auth. and of this court’s decision in Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249 (2) (361 SE2d 241) (1987).
Relying on Housing Auth., the majority states that “only ‘permanent’ business losses are recoverable as a separate element of damages” (p. 342), thereby distinguishing permanent damage from temporary damage. However, the Georgia Supreme Court has held that “[t]he [Georgia] [Constitution does not distinguish between permanent and temporary damage.” Hillman at 340. While the issue in Hillman was whether consequential damages could be awarded in a temporary taking, the rationale of the Supreme Court’s decision can and should be applied to the present case, which involves whether business losses can be awarded in a temporary taking. Since the Supreme Court has ruled that the temporary/permanent distinction is unconstitutional, I do not believe we can continue to uphold the distinction.
The majority maintains that we are “bound” by Housing Auth. to hold that temporary business losses are not recoverable by a condemnee. Even if I were to agree (and I do not) that Housing Auth. stands for the proposition that in no case is a condemnee entitled to business losses resulting from a temporary taking, I do not believe that we must blindly follow that case when we have more recent authority, Hillman, from which we can extrapolate a logical answer to the issue now before us. Suppose the Supreme Court, in an armed robbery case, were to hold that grand jury proceedings should have been open to the defendant. Are we unable to apply that ruling to a *344burglary case, or must we adhere to earlier law and wait for the Supreme Court to apply its ruling to a burglary case, and then a rape case, and then a child molestation case, etc., before we may apply the Supreme Court’s ruling? I think not.
Decided March 6, 1989 Rehearings denied March 31, 1989 and April 17, 1989 Reynolds & McArthur, Charles M. Cork III, for appellants. Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, William C. Harris, for appellee.I agree that the trial court erred in granting that part of the motion in limine concerning business losses (Case No.,77284). However, I cannot agree with the majority that the condemnee is only entitled to permanent business losses. If the condemnee in the case at bar can meet the evidentiary requirements to recover business losses due to a permanent taking (uniqueness, not remote, not speculative) (Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980)), then the condemnee should be entitled to recover the damages, despite the fact that its business loss was due to a temporary taking. Hillman at 340.
Insofar as it can be read to stand for the proposition that only permanent business losses are recoverable, the Supreme Court’s decision in Housing Auth. has been effectively overruled by its later decision in Hillman. That being so, our decision in Dept. of Transp. v. Fitzpatrick must likewise be overruled insofar as it conflicts with Hillman.
I am authorized to state that Presiding Judge Banke and Judge Beasley join in this opinion.