Department of Transportation v. George , 202 Ga. App. 270 ( 1991 )

Judge Arnold Shulman.

The Department of Transportation (DOT) condemned approximately 0.08 acres of land owned by the appellee and acquired both a permanent slope easement and a construction easement on her remaining property, all for the purpose of expanding Highway 42 in Henry County. The appellee operated a western supply business on the property and also maintained residential and office space there which she leased to others. Before the taking, vehicular access to the property was unlimited both along Highway 42 and along Lane Road, an intersecting street. After the taking, the appellee’s front parking lot was virtually eliminated, and access to and from Highway 42 and Lane Road was impaired by curbing. The appellee appealed to a jury on the issue of compensation, and the jury awarded her $280,000. The DOT brings this appeal from the judgment entered thereon.

1. The DOT contends that the trial court erred in refusing to declare a mistrial based on the conduct of the appellee’s counsel in revealing to the jury the amount which the DOT had paid into the registry of the court at the time of the taking. This occurred during cross-examination of the DOT’s appraiser, who had testified on direct examination that the value of the property taken was $114,500 but who had previously executed an affidavit in connection with the declaration of taking valuing the property at $103,000. The DOT objected to the appellee’s questioning the witness regarding this discrepancy; and during the ensuing colloquy, the appellee’s counsel defended this line of cross-examination on the ground that the DOT had based its original estimate of compensation on the appraiser’s affidavit.

The questioning itself was clearly permissible, it being well settled that “the return of an appraiser in a condemnation case which is contradictory of his testimony on the trial may be introduced for the purpose of impeaching him though it is generally inadmissible.” State Hwy. Dept. v. Raines, 129 Ga. App. 123, 128 (199 SE2d 96) (1973). See also Atlanta Recycled &c. Co. v. Tri-Cities &c. Co., 152 Ga. App. 259 (1) (262 SE2d 554) (1979). While the remark concerning the amount paid by the department into the registry of the court at the time of the taking may not have been proper, we note that up until only a few years ago such information was allowed to go out with the jury. See Department of Transp. v. Gunnels, 175 Ga. App. 632 (4) (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986). See also Aiken v. Dept. of Transp., 171 Ga. App. 154 (1) (319 SE2d 58) (1984). Considering all of the circumstances, we do not consider this isolated remark to have been so prejudicial as to have demanded the declaration of a mistrial. See generally Department of Transp. v. 590 Acres of Land & Bryan, 174 Ga. App. 589 (3) (330 SE2d 738) (1985).

2. The DOT contends that the trial court erred in denying its motion to strike certain testimony concerning business losses which the appellee had sustained during the period of construction. “[E]vidence 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.” Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (387 SE2d 877) (1990). “It is up to the trier of fact to determine whether the business losses suffered as a result of a temporary easement were a mere inconvenience or whether they resulted in a diminution of the value of the condemnee’s interest in the land not taken.” Id. Accordingly, the trial court did not err in admitting this evidence.

3. The DOT contends that because it was established without dispute that the appellee had continued to operate her business at the same location after the taking, the trial court erred in giving the following charge: “If you find that there will be a total destruction of the business at its present location and that the property is unique, then you would be authorized to determine the amount of just and adequate compensation for business losses. This amount would be separate from and in addition to the actual damages and the consequential damages, if any.”

If a business is not totally destroyed but continues to operate on the remaining property, business losses cannot be recovered as a separate item of damage but may be considered in determining the fair market value of the remainder. See Buck’s Svc. Station v. Dept. of Transp., supra; Department of Transp. v. Dent, 142 Ga. App. 94 (3) (235 SE2d 610) (1977). If the business is totally destroyed, evidence of the resulting loss can be considered by the jury as a separate item of damages, provided the property is unique and the business was operated by the property owner. See Bowers v. Fulton County, 221 Ga. 731, 739 (146 SE2d 884) (1966); Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980).

There was at least some evidence in this case that the appellee’s property was uniquely suited to the purposes for which she was utilizing it; and there was also evidence that because of the changes resulting from the taking, she would be unable to continue in business at that location unless she demolished the existing building and constructed a new one so as to provide adequate space for customer parking. A business analyst testified that before the taking the business was earning between $22,000 and $56,000 per year but that during the seven months immediately after the taking it had lost in excess of $25,000. The appellee testified that she had continued to operate the business at the same location subsequent to the taking on a temporary basis, in hopes of recovering sufficient funds in the present proceeding to enable her to start construction of a new building. There was evidence that construction of a new building would take approximately one year, that the business would cease to operate during that period, and that it would take an additional year for the new business to become profitable. We conclude that this evidence was sufficient to support a finding by the jury that the appellee’s existing business was totally destroyed as a result of the taking, and we accordingly hold that the trial court did not err in giving the charge in question. We note, however, that the jury’s verdict could not, in any event, have included an award of damages for total destruction of the appellee’s business as an “amount separate from and in addition to the actual damages and the consequential damages,” for the appellee’s financial expert testified that her business was worth $280,000 before the taking, and by the DOT’s own reckoning the land taken was worth $114,500. Thus, the charge in question would not appear to have been harmful to the DOT.

4. The DOT contends that the trial court erred in allowing its project engineer to be cross-examined about the size of a neighboring driveway. However, the witness’s response was that he was unfamiliar with the dimensions of the driveway in question and therefore could not answer the question. Consequently, this questioning, if improper, was harmless.

5. The DOT contends that the trial court erred in admitting evidence regarding the changed access to the property and in charging the jury that the appellee could be compensated for her loss of access. “The right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid.” MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905) (1975). There was evidence that the appellee had unlimited access both to Highway 42 and to Lane Road before the taking and that such access was critical to her business because her customers often drove tractor-trailer trucks or horse trailers requiring extensive room to maneuver. The evidence further established that after the taking the appellee’s access to Highway 42 and to Lane Road was limited to a 20-foot driveway. This evidence was admissible under MARTA v. Datry, supra, and the court’s charge on the issue of impairment of access was therefore authorized. See also DeKalb County v. Glaze, 189 Ga. App. 1 (1) (375 SE2d 66) (1988).

6. The DOT contends that the trial court erred in admitting into evidence a tape measure which the appellee’s attorney had utilized during the trial to illustrate certain points. As it is not apparent how this evidence could possibly have harmed the department, this enumeration of error establishes no ground for reversal.

7. The appellee has moved this court for imposition of a penalty against the DOT pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. While we have determined that the appeal is not meritorious, we cannot agree that it was so palpably without merit as to demand the conclusion that it was filed for purposes of delay only. Consequently, the appellee’s motion is denied. See Great Atlantic &c. Co. v. Burgess, 157 Ga. App. 632 (4) (278 SE2d 174) (1981).

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley and Cooper, JJ., concur. Carley, P. J., and Andrews, J., dissent.