Opinion
A00A0962.
DECIDED: AUGUST 30, 2000.
Condemnation; business damages. Cobb Superior Court. Before Judge Grubbs, pro hac vice.
G. Gibson Dean II, for appellant.
Bentley, Bentley Bentley, Fred D. Bentley, for appellee.
Cobb County condemned a parcel of land owned by General Lighting Distributing, Inc. for a road improvement project. Following a hearing, a special master awarded General Lighting $450,000. General Lighting appealed the award, demanding a jury trial. The jury returned a verdict for $506,300, and the trial court entered judgment for General Lighting in that amount. General Lighting appeals, contending that the trial court gave an erroneous jury charge on the burden of proving business damages. As the charge was a correct statement of the law, we affirm.
At trial, General Lighting sought damages for "the diminished value of the business" due to having to relocate. At trial, the judge charged the jury that
[b]usiness losses are recoverable as a separate item of damages only if you believe from the evidence that the property involved is unique. The burden of proving such uniqueness is upon the defendant, and the defendant must carry that burden by a preponderance of the evidence, as I have previously defined it to you in this charge.
Counsel for General Lighting objected to this charge as improperly placing the burden of proof on the condemnee. We disagree.
Cobb County contends that General Lighting has waived its challenge on appeal because it did not object to the trial court's failure to give a specific charge on the condemnor's burden of proof. But General Lighting did object to the charge that the condemnee bears the burden of proving uniqueness, and that is the charge at issue here.
In cases involving a total taking of property, the general measure of damages is the fair market value of the property. The burden of proving the value of the property rests with the condemnor, although the condemnee must produce evidence if it asserts that the property has a greater value than that shown by the condemnor. Accordingly, in Glover v. Dept. of Transportation, we ruled that "a charge that where the condemnee asserts that he is entitled to compensation greater than that shown by the condemnor's evidence the burden of proof rests upon him to prove by a preponderance of the evidence that his assertion is true, is error."
Dept. of Transp. v. Sharpe, 213 Ga. App. 549, 550 (1) ( 445 S.E.2d 343) (1994); MARTA v. Ply-Marts, Inc., 144 Ga. App. 482, 483 (1) ( 241 S.E.2d 599) (1978).
Lewis v. State Hwy. Dept., 110 Ga. App. 845 (1) (b) ( 140 S.E.2d 109) (1964); Pendarvis Constr. Corp. v. Cobb County-Marietta Water Auth'y, 239 Ga. App. 14, 15 (1) ( 520 S.E.2d 530) (1999).
(Punctuation omitted.) 166 Ga. App. 512, 513 ( 304 S.E.2d 567) (1983).
If the condemnee is not adequately compensated by fair market value, then it may be entitled to other types of damages, including "loss of profits and diminution of the business." Business losses are recoverable, however, only if the property is "unique." Whether the property is "unique" is a jury question which "depends upon the characteristics and location of the property in conjunction with the use to which it is being put." We have held that the condemnee bears the burden of proving uniqueness. Thus, the trial court's instruction that General Lighting bore the burden of proving uniqueness by a preponderance of the evidence was not error.
MARTA, supra.
Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 ( 265 S.E.2d 10) (1980).
Id.
Raiford v. Dept. of Transp., 206 Ga. App. 114, 119 (2) ( 424 S.E.2d 789) (1992).
See Kim v. Metropolitan Atlanta Olympic Games Auth'y, 227 Ga. App. 563 (1) ( 489 S.E.2d 372) (1997) ("[t]he condemnee has the burden of proving the property to be unique"); MARTA, supra ("the rule is that . . . claimed loss of business will not be considered, unless the condemnee has proved that the condemned property has some unique or peculiar relationship to the condemnee and his business").
General Lighting asserts that our cases holding that the condemnee bears the burden of proving uniqueness cannot be reconciled with other cases holding that "[t]he burden of proving value and damages never shifts from the condemnor." These two principles, however, are not in conflict. In the usual condemnation case, where the measure of damages is the fair market value of the property, the condemnor bears the burden of proving that value, and the burden of proof does not shift to the condemnee even if the condemnee disputes the figures offered by the condemnor. Because business losses are a separate category of damages available in addition to fair market value only in special cases where fair market value does not provide adequate compensation, the condemnee bears the burden of demonstrating that the condemned property is unique, thus establishing an entitlement to those extra damages.
Pendarvis, supra.
Judgment affirmed. Andrews, P.J., and Ellington, J., concur.
DECIDED AUGUST 30, 2000 — RECONSIDERATION DENIED SEPTEMBER 15, 2000 — CERT. APPLIED FOR.