ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
2013, Dekalb County condemned 0.069 acres of land located at
the intersection of LaVista Road and Oak Grove Road for road
and sidewalk improvements. Following a trial to establish
just and adequate compensation, the jury awarded $313, 000 to
Jack Speir, the property owner, and $671, 000 to Oe Gon Kim
and J. K. Cleaners, Inc. (collectively "J. K.
Cleaners"), owner/operators of the dry cleaning business
that leased the property. The trial court entered judgment on
the verdict, and the County appeals. For reasons that follow,
evidence shows that prior to the road work associated with
the condemnation, J. K. Cleaners' business sat on a
"prominent corner" with three driveways that
allowed cars to enter and exit the site easily from Lavista
Road or Oak Grove Road. The road improvements, however,
closed two of the three driveways and reduced the overall
property size, significantly impacting access to the business
and restricting the available parking area. According to the
County's appraiser, the alterations rendered the
property's use as a dry cleaning business
"precarious" and not viable.
parties offered conflicting expert testimony regarding the
amount of just compensation owed following the taking. With
respect to J. K. Cleaners, the County's expert testified
that the business had experienced a loss in value of $101,
000. J. K. Cleaners' business appraiser, however, valued
the loss much higher, asserting that the business was worth
$440, 000 before the taking and had no value after, given the
extreme alterations to the site. He further testified that J.
K. Cleaners was obligated to continue making payments under
its lease on the property through 2017, resulting in further
losses of $400, 984. Adding these two loss values together,
the expert calculated just and adequate compensation for J.
K. Cleaners as $841, 000.
to trial, the County moved in limine to exclude evidence
regarding J. K. Cleaners' post-taking lease obligations.
The trial court denied the motion and admitted the evidence.
In its sole enumeration of error on appeal, the County
challenges this evidentiary ruling.
no error. A lessee that operates a business on condemned
property may recover post-taking business losses as an
element of just and adequate compensation "if the
property is 'unique' and the loss is not remote or
speculative." DOT v. Acree Oil Co., 266 Ga.
336-337 (1) (467 S.E.2d 319) (1996). Business loss evidence,
therefore, "is admissible in a condemnation action where
such losses are sought as a separate element of damages as to
unique or peculiar property as well as when such evidence
shows a diminution of value of the land not taken."
DOT v. Arnold, 243 Ga.App. 15, 18 (1) (530 S.E.2d
767) (2000) (citations and punctuation omitted).
Cleaners offered testimony that the condemned property, with
its particular location and multiple access points, was
unique, raising a jury question on uniqueness. See Toler
v. DOT, 328 Ga.App. 144, 146 (1) (761 S.E.2d 550) (2014)
("The issue of whether a business property is
'unique' so as to support an award of business loss
is a question for the jury."). The presentation of
business loss evidence, therefore, was appropriate. See
Arnold, supra. The County argues, however, that such
evidence should have been limited to the market value of the
business before the taking and immediately after, and should
not have included any discussion of future, post-taking lease
disagree. Generally, "[t]he correct measure of damages
that a lessee condemnee can recover for damage to his
business is the difference in market value of the business
prior to and after the taking." Action Sound v.
DOT, 265 Ga.App. 616, 619 (2) (594 S.E.2d 773) (2004).
As we have explained, however, "[e]vidence of
any business losses which result in a diminution of
the value of a condemnee's business is admissible."
Id. (punctuation and footnote omitted; emphasis in
original). J. K. Cleaners' appraiser testified that the
taking not only depleted all value from the dry-cleaning
business, but also saddled the company with a worthless lease
obligation that it was contractually obligated to pay for
several more years. Based on this testimony, counsel argued
to the jury that the circumstances created a
negative market value for which the company should
I think of this argument as a less than zero argument. [The
County] made the value of the business less than zero. [The
County] made it where not only would someone not pay you for
it, it's a liability. . . . After the taking you've
got less than zero, because you've got $400, 000 in rent
liability, so it's less than zero.
Cleaners connected the future rent payments to the market
value of its business just after the taking, bringing this
evidence within the ambit of business loss. See Old South
Bottle Shop v. DOT, 175 Ga.App. 295, 296 (2) (333 S.E.2d
court erred in excluding business loss testimony regarding
cash flow where testimony related to the value of the
business). Although the County argues that the evidence was
speculative, J. K. Cleaners' appraiser based his
testimony on contractual obligations existing at the time of
the taking, and factual questions remained for the jury as to
whether the dry cleaner made reasonable efforts to mitigate
or minimize these obligations. See Davis Co. v. DOT,
262 Ga.App. 138, 143 (3) (584 S.E.2d 705) (2003) (extent to
which condemnee mitigated his business losses was question
for the jury). Moreover, we find no merit in the County's
claim that introduction of the post-taking lease liability
resulted in a double recovery here. It is true that J. K.
Cleaners' appraiser considered the company's business
expenses - including its lease payment - when placing a
pre-taking value on the business. Nothing indicates, however,
that the appraiser factored the company's future
lease requirement into the pre-taking valuation. We fail to
see, therefore, how consideration of the post-taking
obligations created a double recovery.
is a "long-established policy of the Georgia appellate
courts to be liberal in allowing matters to be considered by
the jury which might affect their collective minds in
determining the just and adequate compensation to be paid the
condemnee." Evans v. DOT, 331 Ga.App. 313, 317
(1) (771 S.E.2d 20) (2015). And ultimately, "[i]t is
within the sound discretion of the trial court to admit or
deny admission of such evidence [regarding business loss]
when causation of such loss is in question."
Arnold, supra at 18. Given the particular
circumstances of this case, the trial court properly
exercised its discretion in admitting evidence of J K
Cleaners' post-taking lease ...