Department of Transportation v. Scott , 268 Ga. 579 ( 1997 )

Benham, Chief Justice.

Scott, owner of a 96-acre tract of land in Spalding County, Georgia, leased a 60-acre tract to Ison Nursery and Vineyard. The Department of Transportation (DOT) acquired by condemnation 1.692 acres of land from the 60-acre tract leased to Ison, causing the destruction of 950 muscadine plants called “mother plants” which were the source of grapevines, sold in the form of cuttings. Some of the varieties of muscadines have been patented by Ison. The replacement cost of the plants was shown to be $14,623 and evidence at trial showed that the destruction of the plants taken would result in the loss of sales of approximately 60,000-65,000 plants per year resulting in a business loss of $214,000 over a three-year period of time needed to replace the destroyed plants with new ones. The jury awarded Ison $100,000 as just and adequate compensation. The Court of Appeals affirmed that judgment (224 Ga. App. 231 (480 SE2d 272) (1997)) and this Court granted certiorari posing the following question: “Whether evidence of business losses was admissible under the facts of this case? See DOT v. Acree Oil Co., 266 Ga. 336 [(467 SE2d 319)] (1996); MARTA v. Funk, 263 Ga. 385 [(435 SE2d 196)] (1993); Buck’s Service Station v. DOT, 259 Ga. 825 [(387 SE2d 877)] (1990); DOT v. Dixie Hwy. Bottle Shop, 245 Ga. 314 [(265 SE2d 10)] (1980).”

The Court of Appeals noted that Ison did not attempt to recover business losses as a separate element of damages, so no consideration of uniqueness was necessary. Instead, it held, Ison sought to show the diminution in value of its business, and evidence of business losses was admissible to show that diminution in value. However, the case relied upon by the Court of Appeals, Fulton County v. Dangerfield, 195 Ga. App. 208 (2) (393 SE2d 285) (1990) (rev’d on other grounds, 260 Ga. 665 (398 SE2d 14) (1990)), involved a lessee attempting to recover business losses as a separate element of damages, accompanied by evidence of uniqueness. The measure of damages for such a claim is the “difference in market value prior to and after the taking” (id. at 210), but since Ison was not attempting to recover business losses as a separate element of damages, it was not authorized to introduce evidence of the reduction in value of the business.

We conclude, therefore, that the trial court erred in admitting evidence of Ison’s business losses and the Court of Appeals erred in affirming the judgment.

Judgment reversed.

All the Justices concur, except Sears and Hunstein, JJ, who dissent.