Chamlee v. Department of Transp., 74034
| Decision Date | 11 March 1987 |
| Docket Number | No. 74034,74034 |
| Citation | 354 S.E.2d 701,182 Ga.App. 120 |
| Parties | CHAMLEE v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Richard N. Hubert, David J. Worley, Atlanta, for appellant.
Kenneth L. Levy, Decatur, G. Conley Ingram, Rick S. Sexton, Michael J. Bowers, Atty. Gen., Roland F. Matson, Sr. Asst. Atty. Gen., Atlanta, for appellee.
Roy Z. Chamlee was the owner of realty located just off Piedmont Avenue in Atlanta near Interstates 75 and 85. In preparation for the widening of I-75-85, the Georgia Department of Transportation (DOT) filed a declaration of taking in Fulton Superior Court, condemning all of Chamlee's property. Initial discussions between Chamlee and DOT personnel had involved only a partial taking of the realty and the corner of a building thereon. Chamlee filed a Petition to Set Aside, Vacate and Annul [the] Declaration of Taking, pursuant to OCGA § 32-3-11, alleging the condemnor had proceeded fraudulently and in bad faith. A hearing was held upon appellant's petition and evidence presented by Chamlee and his son, an attorney, on acts they contended amounted to fraud and bad faith. At the close of the presentation of the condemnee's evidence, condemnor made a motion which is not included in the transcript, but is described by the condemnor in its statement of fact as one which "moved that the petition be dismissed." The court stated: "The court treats that as an equivalent of a motion for a directed verdict by the department ..." and stated for the record that it found no evidence tending to establish fraud or bad faith, that DOT has if not totally, "substantially complied with all of the provisions of the law respecting the acquisition," that there was no evidence of improper use, abuse or misuse of the powers granted to DOT, but that the Department may be acquiring "some very small amount of land that it has no direct proven use" but the authority of the court did not extend to a determination of necessity. "Accordingly, the court would grant the department's motion." An order was entered which recited that at the close of the evidence DOT "moved for directed verdict" and the "Court hereby GRANTS directed verdict for the plaintiff Department of Transportation." Chamlee brings this appeal. Held:
1. Appellant contends the trial court erred in failing to make specific findings of fact and conclusions of law pursuant to OCGA § 9-11-52(a). We agree. In substance, Rule 52(a) requires a trial court, in cases tried without a jury, with minor exceptions not here applicable, to "find the facts specially and ... state separately its conclusions of law thereon." This rule contains a caveat that such findings of fact and conclusions of law "are unnecessary on decisions of motions under Code Section 9-11-12 or 9-11-56 or any other motion except as provided in subsection (b) of Code Section 9-11-41." (Emphasis supplied.) In the instant case DOT's motion was treated by the court "as an equivalent of a motion for a directed verdict by the department...." A motion for directed verdict in a non-jury trial is procedurally incorrect and the motion will be treated as one for involuntary dismissal under OCGA § 9-11-41(b). Kennery v. Mosteller, 133 Ga.App. 879, 880, 212 S.E.2d 447; Pichulik v. Air Conditioning etc. Co., 123 Ga.App. 195, 197, 180 S.E.2d 286.
Under Rule 41(b), a trial judge in a non-jury case is expressly given the power to adjudicate the case on the merits at the conclusion of plaintiff's case. "If the trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a non-jury case, he must weigh the evidence." Martin v. Ga. Stone, etc., Mfg., 157 Ga.App. 92, 276 S.E.2d 141; accord Comtrol v. H-K Corp., 134 Ga.App. 349, 351, 214 S.E.2d 588. Hence, " Bob Bennett Enterprises v. Trust Co. Bank, 153 Ga.App. 344, 265 S.E.2d 311; accord Marsh v. Way, 170 Ga.App. 300, 301, 316 S.E.2d 599.
Under Rule 41(b) when a defendant moves for involuntary dismissal, the trial court determines the facts and "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subsection ... operates as an adjudication upon the merits." The order in the instant case did not otherwise specify, hence the judgment was an adjudication on the merits of the condemnee's action. The adjudication being upon the merits, it is required that the trial court make such determination of the facts as required by Rule 52(a). Lawyers Co-Op. Pub. Co. v. Bekins Moving, etc., Co., 135 Ga.App. 12, 13, 217 S.E.2d 372; accord American Sanitation Svcs. v. EDM of Tex., 136 Ga.App. 200, 221 S.E.2d 66.
2. Appellee contends the trial court entered appropriate findings of fact and conclusions of law in the transcribed portions of the hearing. A review of the transcript shows that the court did state its conclusions that no evidence had been...
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...dismissal under O.C.G.A. § 9–11–41(b). See Drake v. Wallace, 259 Ga.App. 111, 112, 576 S.E.2d 87 (2003) ; Chamlee v. DOT, 182 Ga.App. 120, 120–21, 354 S.E.2d 701 (1987). ...
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...of the hearing and, as a result, was spurred to file its claim[,]" alluding to supporting facts of record, Chamlee v. Dept. of Transp., 182 Ga.App. 120, 122(a), 354 S.E.2d 701 ("`"Findings of fact"' are insufficient when they merely state the court's answers to the material issues in the ca......
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