Georgia Department of Transportation (“DOT”) condemned a right of way for proposed turning lanes at an intersection in Toccoa, Georgia, which took part of the property of a gasoline station owned by condemnee Aeree Oil Company. The condemnation was announced in 1988; condemnee’s lessee learned the improvements would come within inches of the pump stations, so he moved in 1989. The date of taking was in January 1993. Condemnee contended $18,800 as established by DOT was not just and adequate compensation because before the announcement of taking, the property generated income of about $28,000 per year. When the compensation issue was tried in January 1994, construction had still not begun. On the day of this trial, DOT filed a motion in limine to exclude evidence of pre-acquisition losses. The condemnee agreed that pre-condemnation blight is *587 not admissible to prove loss but condemnee said it intended to introduce evidence of the delay of this project, including that the project is “on hold” because of contamination from gasoline tanks on property located across the street; and that because of the uncertainty of the project, condemnee’s property has remained unoccupied since 1989, and it is unfeasible for condemnee to tear down its present station and build a $400,000 to $425,000 station until the project is completed, all of which affects the fair market value of the property and causes business losses. DOT argued that in order to recover business losses the condemnee must establish there was a business in operation on the date of acquisition and that if condemnee’s business was destroyed for use as a service station and gasoline tanks had to be removed for non-use as a result of the condemnation, no evidence could be admitted that it was a service station at the time of taking. Condemnee contended the underground tanks would be fit for use until 1998 unless DOT abandons the project, that the delay of the project and uncertainty whether condemnee would have to remove the tanks were elements of loss, and that this is an unusual situation in which the uncertain delay has diminished the value of the property not taken. Condemnee demanded to know when the project will be commenced but DOT answered, and the trial court agreed, that this is irrelevant. The trial court ruled that any values and damages could be established only up to the day of taking, January 20, 1993, and that condemnee would not be allowed to question when the project might begin and witnesses would not be allowed to testify to anything based on what might happen after the date of taking.
Condemnee appeals from the jury’s verdict of $28,800, contending the trial court erred in refusing to admit evidence of post-taking matters to show business losses and evidence of consequential damages caused by the anticipated construction, and erred in excluding evidence of the length and uncertainty of construction and the fact that the project was put “on hold.” Condemnee also contends the trial court erred in excluding evidence as to what condemnee would have done with the site until 1998 had the land not been taken; and erred in refusing to allow evidence of having to tear down and rebuild the service station. Condemnee further contends the trial court erred in excluding evidence that its tenant lost accounts because of having to move. Held:
1. Condemnee Aeree Oil states six enumerations of error asserting under broad headings that the trial court erred in excluding evidence of certain post-taking matters. In violation of Court of Appeals Rule 15 (a) (1) (now Rule 27 (a) (1)), condemnee also fails to state the method by which each enumeration of error was preserved for consideration on appeal. The sequence of argument in appellant/condemnee’s brief does not follow the order of the enumeration of errors
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and is not numbered correspondingly, in violation of Rule 15 (c) (now Rule 27 (c)). The form of the brief does not follow the enumerations but argues all six enumerations at once; no specific enumerations are made as to specific evidence excluded, and only in the argument are stated examples of excluded evidence. The result is a hodgepodge of argument which relates to all alleged errors intermingled and none specifically, and which called forth a further confusing of the issues by appellee DOT, and a reply by condemnee. A party on appellate review cannot expand the scope of review or supply additional issues through a process of switching, shifting and mending its hold; statements in appellate briefs cannot expand the scope of review to include issues not reasonably contained in the enumeration.
Jabaley v. Jabaley,
Losses occurring before the actual date of taking and diminution in value as a result of an anticipated condemnation are not compensable.
Josh Cabaret, Inc. v. Dept. of Transp.,
As to both consequential damages to the property not taken and business losses which affect the value of the property not taken, the
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condemnee may show that the future delay and uncertainty of the project affected the value of the condemnee’s property
on the date of taking;
this may include evidence that the project will not be completed until a certain or uncertain time into the future.
Dept. of Transp. v. Sequoyah Land Investment Co.,
This answers enumerations of error one through six. If it does not answer questions as to examples of excluded evidence not specifically enumerated as error but listed in the argument portion of appellant’s original brief, such errors are deemed abandoned.
2. Enumerations eight and nine are related to enumerations one through six. Enumeration eight contends the trial court erred in excluding evidence as to what condemnee would have done with the subject service station until 1998 had the condemnation project not gone through. We cannot approve the admission of such broad and speculative evidence. Such evidence is admissible only to the extent that it proves that market value of the property not taken is diminished by the taking on the day of taking. Buck’s Svc. Station, supra. Enumeration nine complains the trial court erred in excluding evidence as to what would be involved in tearing down and rebuilding the service station at the site. This evidence is admissible if these factors affect the market value of the property not taken on the day of taking, as held in Division 1.
3. Appellant contends the trial court erred in excluding evidence that condemnee’s lessee lost customer accounts because of his move from condemnee’s service station to another location. Condemnee contends this evidence would show the property is unique because of its location. Evidence of business losses by a lessee after the lessee moved to another location is too speculative to prove the value of the
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condemnee’s property not taken (i.e., consequential damages) on the day of taking. The case cited by condemnee,
Dept. of Transp. v. Livingston,
Judgment affirmed in part and reversed in part.
On Motion for Reconsideration.
DOT says that in allowing a condemnee to show that delay and uncertainty of the project affected the value of the property on the date of taking, we have created a “new rule” which will allow “damages” for the “effect of the project,” in direct contradiction to
Simon v. Dept. of Transp.,
In pushing the idea that we held a condemnee can get damages for the effect of the project, DOT says that under this decision DOT could even argue that adverse effects suffered by Aeree Oil’s competítors due to the delay can be shown as “consequential benefits” to offset any consequential damages suffered by Aeree Oil due to delay in the project; further, DOT says the grounds for inverse condemnation have been vastly enlarged because under this decision “any property owner or business operator whose property or business has suffered a diminution in value caused by the uncertainty and delay in a project has suffered a compensable taking though not an inch of their land was used or acquired.” Such flights of fantasy discredit DOT’S efforts to limit condemnees’ right to compensation for the diminution of property value on the date of taking.
DOT says
Dept. of Transp. v. Sequoyah Land Investment Co.,
DOT contends any error in the trial court’s ruling was harmless because Aeree Oil was able to present essentially all the evidence it wanted to admit. This is false. The trial court repeatedly and consistently sustained DOT’s objections to the evidence Aeree Oil tried to get before the jury.
Motion for reconsideration denied.