Department of Transportation v. Hillside Motors, Inc. , 192 Ga. App. 637 ( 1989 )

Carley, Chief Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 3, 4 and 5 of the majority opinion. With regard to Division 1 of the majority opinion, which is the subject of the dissent, I agree with the majority’s conclusion that “this issue was not adequately raised at trial.” (Majority Opinion, p. 638) I cannot, however, agree with the remainder of Division 1 of the majority opinion implying that had the issue been properly preserved and raised on appeal, Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987) would be controlling. On the contrary, had the issue been preserved, I would agree with the analysis of the dissent which concludes that there is not sufficient evidence to support an award of business losses in this case.

With particular regard to Division 5, I agree with the majority that Brock v. Dept. of Transp., 151 Ga. App. 905 (2) (262 SE2d 156) (1979) and Big-Bin Dispos-All v. City of Valdosta, 172 Ga.. App. 746, 748 (324 SE2d 501) (1984) should be overruled. Although I was the author of Brock, the majority’s analysis of the concept of business loss is persuasive, and I no longer believe that a demonstration of profitability is a condition precedent to the recovery “for business losses as an element of compensation separate from the value of the land . . . if the property is ‘unique.’ [Cits.]” Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980). See also Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966); Bowers v. Fulton County, 122 Ga. App. 45, 49 (176 SE2d 219) (1970); Old South Bottle Shop v. Dept. of Transp., 175 Ga. App. 295 (333 SE2d 127) (1985).

I must, however, dissent to Division 2 of the majority opinion. The majority finds that, if it was error to fail to direct a verdict on the issue of recoverable impairment of access, the error was harmless because the jury awarded damages only for the period preceding the erection of the traffic wall. This would be the correct resolution if the erection of the traffic wall was the only basis upon which an award based upon a purported impairment of access could arguably be premised. It is not. There was evidence that, prior to the erection of the traffic wall and during the period for which the jury awarded damages, the manner in which certain telephone utility work was performed had made access to appellant’s property more difficult. Appel-lee urged that appellant was liable for the damages resulting from the interference with access occasioned by this utility work. It is not possible to determine whether the jury’s award did or did not include compensation to appellee for this utility work under the guise that it constituted an impairment of access for which appellant would be liable. If the jury’s award did include compensation on this basis, it would be error. The utility work was accomplished by the telephone company, not by appellant. Because the jury’s award may have erroneously included compensation for a purported impairment of access for which appellant would not be liable, I cannot agree that the trial court’s failure to grant a directed verdict in favor of appellant on the impairment of access issue was harmless.

I am authorized to state that Judge Sognier joins in this opinion.