Department of Transportation v. Vest

Banke, Judge.

The department condemned a small strip of land (.283 acres) on which the condemnees operated an auto body repair business, leaving a remainder of about one-tenth of an acre. The issue of compensation was tried before a jury, and a verdict was returned in the amount of $136,000. The department appeals, contending that the court erred in instructing the jurors that they could consider lost profits as well as any peculiar value the property might have to the condemnees. The condemnees cross appeal, contending that post judgment interest should have been awarded at the rate of 12 percent per annum, whereas the court awarded only 7 percent.

The department’s appraiser valued the land at $22,150, the improvements at $22,310, and the damage to the remainder at $7,655. The condemnees called two appraisers, one of whom testified that the total value of the land and improvements, plus consequential *369damages, was $89,934, and the other that the total was $88,250. One of the condemnees, Mr. Vest, testified that in his opinion the total value of the property taken, plus consequential damages, was $149,000; however, he was not qualified as an expert and offered no basis whatsoever for this valuation.

Mr. Vest further testified that the taking had destroyed the auto repair business, that he had been unable to find a suitable relocation site, and that consequently he and his co-owners had been forced to discontinue the business. In an effort to prove lost profits, he testified as follows: “Q. And do you know of your own knowledge from your experience and the record and such of your business kept under your supervision what was the amount of the loss? A. The profit for a year gross or net? Q. Well, let’s take net. I don’t think we ought to take gross. A. If I had to take a figure from my hat, in dollars, I would say $150,000, but I can’t tell definitely.” This was the only testimony offered on the issue. Held:

1. In order to establish lost profits, the jury must be provided with information or data sufficient to enable them to estimate the amount of the loss with reasonable certainty. Brock v. D. O. T., 151 Ga. App. 905, 906 (3) (262 SE2d 156) (1979). Generally speaking, this means that they must be provided with figures establishing the business’s projected revenue as well as its projected expenses. See Kitchens v. Lowe, 139 Ga. App. 526, 531 (228 SE2d 923) (1976). But see Bennett v. Smith, 245 Ga. 725 (267 SE2d 19) (1980). A bold assertion by the owner as to the amount of the lost profits has no evidentiary value unless supported by figures showing the firm’s established profits and losses. Tri-State Systems, Inc. v. Village Outlet Stores, 135 Ga. App. 81, 84 (2) (217 SE2d 399) (1975). Consequently, the trial court erred in instructing the jury that the condemnees could recover lost profits.

2. There was sufficient evidence to authorize the jury to conclude that the property had a “peculiar value... to the owner.” As indicated previously, Mr. Vest testified that attempts to find a comparable location had been unsuccessful and that consequently the business had been discontinued. There was also testimony to the effect that the property’s location on the highway and the amount of its frontage made it particularly suited for the use to which it was being put. On the basis of this evidence, the jury could have concluded that the fair market value of the property was not adequate compensation. See Hinson v. D.O.T., 135 Ga. App. 258 (1) (217 SE2d 606) (1975); Housing Auth. of the City of Atlanta v. Troncalli, 111 Ga. App. 515, 518 (142 SE2d 93) (1965). Thus, had there been evidence establishing the business’s expected profits, the jury would have been authorized to award compensation based on the *370income valuation method rather than on the basis of fair market value. See Housing Auth. of the City of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980). However, this is not what the court charged. The court instead instructed the jury that the peculiar or unique value of the land to the condemnees was an element to be considered in arriving at value. This in effect authorized a double recovery, i.e., a recovery for loss of the fair market value of the land plus a recovery based on its loss as a business site. This was contrary to law. Where property is valued according to its unique or peculiar value to the owner, this is done as an alternative to the fair market value method. “In other words unique property is simply property which must be valued by something other than the fair market value standard.” Housing Auth. of the City of Atlanta v. Southern R. Co., supra, at 230. Since in this case there was no competent evidence from which the jury could have valued the property by any standard other than fair market value, the court erred in charging the jury that its peculiar value to the condemnees could be also considered.

Decided November 13, 1981. Michael J. Bowers, Attorney General, Marion O. Gordon, Senior Assistant Attorney General, William J. Wiggins, Special Assistant Attorney General, Charles Richards, Michael E. Hobbs, Assistant Attorneys General, for appellant. David Flint, amicus curiae. James R. Dollar, Jr., for appellees.

3. Although the judgment must be reversed, we agree with the condemnees that post judgment interest in a condemnation action should be awarded at the rate of 12 percent per annum, in accordance with Code Ann. § 57-108 (as amended by Ga. L. 1980, p. 1118). The department contends that the applicable statute is Code Ann. § 95A-616 (Ga. L. 1973, pp. 947, 1021), which provides, in pertinent part, as follows: “After just and adequate compensation has been ascertained and established by judgment, the said judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment pursuant to final judgment, at the rate of 7 percent per annum on the amount awarded by final judgment...” However, since Code Ann. § 57-108, supra, applies by its terms to “[a] 11 judgments in this state ...” and since it is the more recent of the two statutes, we must conclude that it supersedes Code Ann. § 95A-616 insofar as the latter deals with the rate of interest applicable after final judgment.

Judgment reversed.

Deen, P. J., concurs. Carley, J., concurs specially.