Department of Transp. v. Petkas, s. 76525

• Decision Date: 29 November 1988
• Docket Number: Nos. 76525,76526,s. 76525
• Citation: 189 Ga.App. 633,377 S.E.2d 166
• Parties: DEPARTMENT OF TRANSPORTATION v. PETKAS, et al. PETKAS, et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 166

377 S.E.2d 166

189 Ga.App. 633

DEPARTMENT OF TRANSPORTATION v. PETKAS, et al.

PETKAS, et al. v. DEPARTMENT OF TRANSPORTATION.

Nos. 76525, 76526.

Court of Appeals of Georgia.

Nov. 29, 1988.

Rehearing Denied Dec. 15, 1988.

Certiorari Denied Jan. 19, 1989.

Weiner, Dwyer, Yancey & Mackin, Dennis S. Mackin, Beryl H. Weiner, Atlanta, and Michael J. Bowers, Atty. Gen., for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James Garland Peek, Grizzard, Simons & Martin, D. Michael Sweetnam, and Warren W. Wills, Atlanta, for appellees.

CARLEY, Judge.

Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) condemned property which was owned by Mr. Nick Petkas and others (condemnees). The issue of just and adequate compensation was tried before a jury and the verdict which was returned was in excess of the amount which had been paid into court by DOT. The trial court entered judgment in favor of the condemnees for the difference. Thereafter, DOT filed a motion for new trial. Relying upon OCGA § 32-3-19(b), DOT also subsequently moved that the judgment in favor of the condemnees be vacated as having been prematurely entered on the jury's verdict. The trial court denied DOT's motion for new trial, but it did order that the judgment in favor of the condemnees be set aside. In Case No. 76525, DOT appeals from the denial of its motion for new trial. In Case No. 76526, the condemnees cross-appeal from the setting aside of the judgment.

Case No. 76526

1. Because the cross-appeal raises an issue which relates to the existence of appellate jurisdiction over this and other condemnation actions initiated pursuant to OCGA § 32-3-1 et seq., that appeal will be addressed first.

The condemnees enumerate as error the grant of DOT's motion to set aside the judgment which had been entered on the jury's verdict. As previously indicated, in urging that the judgment in favor of the condemnees be set aside as premature, DOT relied upon OCGA § 32-3-19(b) and, in granting the motion to set aside, the trial court also relied upon that statute. OCGA § 32-3-19(b) provides: "After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking and which shall bear interest as provided in subsection (c) of this Code section...." (Emphasis supplied.) Under DOT's construction of OCGA § 32-3-19(b), the entry of judgment in this case would have been authorized had no timely motion for new trial been filed but, since a timely motion for new trial was filed, the entry of judgment was premature and prohibited.

Before addressing the issue of what the statute prohibits, consideration must be given to what the statute authorizes. If read literally, OCGA § 32-3-19(b) contemplates that the trial court "shall" enter judgment on the jury's verdict in three enumerated instances. First, the trial court "shall" enter judgment "where no motion for new trial.... is filed within the time provided for by law...." However, "the time provided for by law" for the filing of a motion for new trial does not begin to run until such time as a judgment has been entered on the jury's verdict. Accordingly, the direction that judgment "shall" be entered in this enumerated instance is mere surplusage. A judgment "shall" necessarily have been entered by the trial court in all instances where no timely motion for new trial has been filed, for the very reason that no motion for new trial could otherwise have been timely filed. Second, OCGA § 32-3-19(b) provides that the trial court "shall" enter judgment "where no ... notice of appeal is filed within the time provided for by law...." However, "the time provided for by law" for the filing of a notice of appeal likewise does not begin to run until such time as a judgment has been entered on the jury's verdict. Accordingly, the direction that judgment "shall" be entered in this enumerated instance is also mere surplusage. A judgment "shall" necessarily have been entered by the trial court in all instances where no timely notice of appeal has been filed because, absent the entry of such judgment, no notice of appeal could otherwise have been timely filed. Third, OCGA § 32-3-19(b) provides that the trial court "shall" enter judgment "where such verdict has been affirmed by a proper appellate court...." This portion of the statute is either meaningless at worst, or it is mere surplusage at best. An appellate court has no jurisdiction to hear an appeal from a jury's "verdict" and, therefore, a direction that judgment "shall" be entered where the "verdict" of the jury has been affirmed on appeal is meaningless. If the word "verdict" is to be read as "judgment," then the direction that judgment "shall" be entered by the trial court after an affirmance on appeal is no more than mere surplusage. An appellate court would have no jurisdiction over the appeal unless judgment had been entered on the jury's verdict. "[T]here must be an entry of judgment to finally dispose of the case or for the purpose of using the judgment to support an appeal to this court or the Supreme Court. [Cits.]" Dunagan v. Sims, 119 Ga.App. 765, 767(1), 168 S.E.2d 914 (1969). Accordingly, a judgment "shall" necessarily have been entered by the trial court in all instances where there has been an affirmance of the case by an appellate court, for the reason that, absent the entry of such a judgment, appellate jurisdiction would otherwise be lacking.

"Where possible, we construe language used by the General Assembly in a manner that will not render it meaningless or mere surplusage. [Cit.]" State of Ga. v. C.S.B., 250 Ga. 261, 263, 297 S.E.2d 260 (1982). "[I]t is nevertheless a cardinal rule of construction that the legislative intent shall be effectuated, even though some of the verbiage of an enactment may have to be eliminated from the text." Youmans v. State, 7 Ga.App. 101, 103(1), 66 S.E. 383 (1909). It is clear that the legislature intended that the parties to a jury trial which is held in a condemnation action initiated pursuant to OCGA § 32-3-1 et seq. have "the same right to move for a new trial and file a notice of appeal as in other cases at law...." OCGA § 32-3-16(a). If any effect is to be given to that clear legislative intent, it is not possible to construe the relevant language of OCGA § 32-3-19(b) as being anything other than meaningless or mere surplusage. As discussed, the right to move for a new trial, to file a notice of appeal and to have an appellate resolution of the case are all premised upon the prior entry of judgment by the trial court on the jury's verdict.

If the language of OCGA § 32-3-19(b) which explicitly directs the entry of judgment in certain enumerated instances is meaningless or mere surplusage, it necessarily follows that there is no validity to DOT's construction of that language as implicitly prohibiting the entry of judgment in the unenumerated instances. To give effect to that construction would lead to the absurd result that there could be no viable appeal in a condemnation action under OCGA § 32-3-1 et seq. Under DOT's interpretation, the mere filing of a timely motion for new trial or a notice of appeal, both of which contemplate the prior entry of a judgment on the jury's verdict, would have the anomalous consequence of destroying the underlying viability of that prior judgment as a final appealable order in the case and the proceedings would necessarily end with the otherwise nonfinal and unappealable jury verdict. " 'It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.' [Cits.]" Barton v. Atkinson, 228 Ga. 733, 739, 187 S.E.2d 835 (1972). " '[W]hen to follow the words of an enactment would lead to an absurdity as its consequences, that constitutes sufficient authority to the interpreter to depart from them.' [Cit.]" Gillis v. Gillis, 96 Ga. 1, 9(1), 23 S.E. 107 (1895).

The trial court erred in relying upon OCGA § 32-3-19(b) as authority for setting aside the judgment that it had entered on the jury's verdict. Accordingly, the order of the trial court which sets aside that judgment is reversed and the case is remanded with direction that the trial court reinstate the original judgment.

Case No. 76525

2. Technically, until such time as the remittitur in Case No. 76526 is made the judgment of the trial court, there is no actual judgment in the case upon which DOT could predicate either its motion for new trial or its appeal from the denial thereof. However, in the interest of judicial economy and fairness to the parties, we will address the merits of the errors that are enumerated in DOT's main appeal, rather than dismiss in contemplation of DOT's refiling of a motion for new trial or notice of appeal subsequent to the reinstatement of the judgment that is mandated by our holding in Case No. 76526.

3. The trial court refused to admit into evidence some 50 of DOT's photographs of the property. This evidentiary ruling is enumerated as error.

At trial, introduction of the photographs was disallowed on the clearly erroneous ground that they had been made subsequent to the date that the property had been taken by DOT. "It is the substantial resemblance, not the date, which should control. [Cits.]" Camelot Club Condo. Assn. v. Metro Lawns, 161 Ga.App. 574, 575(2), 288 S.E.2d 325 (1982). DOT's photographs, although made subsequent to...