Department of Transportation v. Acree Oil Co. , 266 Ga. 336 ( 1996 )

Hunstein, Justice.

A portion of Aeree Oil Company’s property was condemned by DOT for a highway intersection improvement project. Aeree Oil appealed from the judgment on the jury’s verdict to the Court of Appeals, which reversed in part. Aeree Oil Co. v. Dept. of Transp., 216 Ga. App. 586 (455 SE2d 590) (1994). We granted DOT’s application for writ of certiorari to consider the Court of Appeals’ rulings as to evidence involving business losses and construction delay.

1. Business losses occurring before the date of taking are not recoverable. Collins v. MARTA, 163 Ga. App. 168 (6) (291 SE2d 742) (1982). Accord Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (353 SE2d 346) (1987). Post-taking business losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses Eire recoverable as a separate item only if the property is “unique” and the loss is not remote or speculative. Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980).

This condemnation did not involve the taking of any leasehold interest, so there was no lessee to recover business losses as a separate element of damages. Aeree Oil, as the owner of property on which the business was not totally destroyed, could not recover any business losses as a separate element of damages. Dept. of Transp. v. Dixie Hwy. Bottle Shop, supra.

2. The Court of Appeals reversed the trial court’s exclusion of business loss evidence on the basis that under our holding in Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 826 (387 SE2d 877) (1990), “ ‘evidence of any business losses which result in a diminution of the value of condemnee’s business is admissible.’ ” (Emphasis omitted.) Aeree Oil Co., supra at 588. A review of the transcript establishes that condemnee proffered evidence of “business loss” in the standard, generic sense of that phrase, i.e., as an integral part of the financial history of the property, ¹ and we use that phrase in this division of the opinion solely in the sense of that evidence of the financial history of the property which a willing buyer would consider on the date of taking in arriving at the value of the property.

The admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court. Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 350-351 (299 SE2d 594) (1983). While we agree with the Court of Appeals that the absence of a business in operation on the property on the date of taking does not automatically end all inquiry into the relevancy of business loss evidence, it is clearly a weighty factor in determining whether such evidence is too speculative and conjectural to be admitted as a factor a willing buyer would consider. The evidence in this case established that Aeree Oil’s lessee departed the property in late 1989 and the property had been vacant for three years prior to the date of taking. Under these facts the trial court did not abuse its discretion by excluding Aeree Oil’s speculative evidence of its business losses.² The Court of Appeals erred by reversing the trial court’s ruling.

3. A jury is entitled to hear evidence that an ordinary buyer on the date of taking would consider, inter alia, the potential benefits of the condemnor’s completed project and the effect of delay or uncertainty in the project’s completion.³ See Wright v. MARTA, 248 Ga. 372, 375-376 (283 SE2d 466) (1981) (four-year delay until completion); Dept. of Transp. v. Sequoyah Land Invest. Co., 169 Ga. App. 20 (2) (311 SE2d 488) (1983) (37-month delay until completion). Aeree Oil contends and the Court of Appeals found that the trial court abused its discretion by excluding relevant evidence of uncertainty and delay. Our review of the transcript reveals, however, in the rulings challenged by Aeree Oil, the trial court properly required any testimony as to the speculative effect any future delays and uncertainties might have on the remainder to be tied to the date of taking, see, e.g., Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (447 SE2d 159) (1994), and allowed evidence meeting that criterion. While error was committed by the trial court in its refusal to admit testimony by a DOT official regarding the completion date of the project, that error was harmless given that the official was allowed to testify 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.

Unless a trial court has abused its discretion in excluding evidence relevant to factors considered by an ordinary buyer on the date of taking, its rulings thereon must be affirmed. See Dept. of Transp. v. Wright, 169 Ga. App. 332, 334 (312 SE2d 824) (1983). Because there was no manifest abuse of the trial court’s discretion, the Court of Appeals erred by reversing the trial court’s evidentiary rulings as to uncertainty and delay.

Judgment reversed.

All the Justices concur, except Fletcher, P. J., Carley and Hines, JJ., who concur specially.

1 Condemnee did not seek “business losses” as a separate element of damages, Division 1, supra, and it is uncontroverted that condemnee proffered no evidence of “business loss” as the special concurrence uses that phrase, i.e., as evidence to support a separate, compensable element of damages. See, e.g., Buck’s Svc. Station, supra.

2 Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (2) (309 SE2d 816) (1983) and Glynn County v. Victor, 143 Ga. App. 198 (2) (237 SE2d 701) (1977) are distinguishable in that those cases involve the recovery of “business losses” as a separate element of damages and the admissibility of business loss evidence in those situations where the business is not in operation on the date of taking.

3 This Court in Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980) affirmed the opinion of the Court of Appeals, which recognized that while the possibility a private right-of-way would be sought over the condemnee’s property might be a “circumstance” to be considered in arriving at the fair market value of a condemned property, economic harm resulting from that possibility was not a compensable item a condemnee could recover in a condemnation action from a condemnor. Dept. of Transp. v. Simon, 151 Ga. App. 807, 811 (261 SE2d 710) (1979). Thus, evidence that a delay in a condemnor’s project is the result of matters beyond the condemnor’s control may be admissible only as a relevant factor an ordinary buyer would take into consideration on the date of the taking when purchasing condemnee’s property.