ABM Realty Co. v. Board of Regents of the Univ. Sys. of Ga.

The trial court reversibly erred in charging the jury that difficulty relocating the business in the same general area was not a test for uniqueness when evaluating the availability of business loss damages in a condemnation action.

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In this condemnation case, ABM Realty Company “ABM” appeals a judgment entering a jury verdict that ABM lacked a compensable business loss caused by the condemnation of a building by the Board of Regents of the University System of Georgia “State”.1 ABM contends that the trial court erred by 1 improperly charging the jury as to the legal test for “uniqueness” when evaluating the availability of business loss damages, and 2 granting the State’s motion in limine as to an appraisal by a certain State expert witness. Because the trial court erred in its instruction to the jury, and because the error was not harmless, we reverse. The undisputed record shows that in 1998, the State filed a condemnation action to take real property containing an office building for use by the State’s university system. ABM was a tenant in the building and operated a business as the building property manager and leasing agent for the owners. ABM intervened in the condemnation action and sought business loss damages as a result of the State’s total condemnation of the building. The superior court appointed a special master, who awarded ABM $5,000 as compensation for the loss of its business interest. ABM appealed that award to the superior court, which held a jury trial as to the adequacy of ABM’s compensation for the taking. The jury found that ABM lacked the requisite uniqueness required to recover business losses in a condemnation action. ABM now appeals.

1. In a condemnation action, when a business belongs to a lessee separate from the property owner, “the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. In either event, business losses are recoverable as a separate item only if the property is ‘unique .’ ” 2 ABM contends that the trial court erred in its instruction to the jury on the test for determining the uniqueness of the property. We agree.

ABM Realty Co. v. Board of Regents of the Univ. Sys. of Ga.

The trial court reversibly erred in charging the jury that difficulty relocating the business in the same general area was not a test for uniqueness when evaluating the availability of business loss damages in a condemnation action.

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