Department of Transp. v. Kendricks, 57188

• Citation: 150 Ga.App. 9,256 S.E.2d 610
• Decision Date: 22 June 1979
• Docket Number: No. 57188,57188
• Parties: DEPARTMENT OF TRANSPORTATION v. KENDRICKS.
• Court: Georgia Court of Appeals

Page 610

256 S.E.2d 610

150 Ga.App. 9

DEPARTMENT OF TRANSPORTATION v. KENDRICKS.

No. 57188.

Court of Appeals of Georgia.

Argued Feb. 12, 1979.

Decided April 24, 1979.

Rehearing Denied May 8, 1979.

Certiorari Granted June 22, 1979.

Arthur K. Bolton, Atty. Gen., W. Anthony Moss, Staff Asst. Atty. Gen., William A. Zorn, Atlanta, for appellant.

Gibbs, Leaphart & Smith, J. Alvin Leaphart, Jesup, for appellee.

SHULMAN, Judge.

Appellant condemned a narrow strip of appellee's property for a slope easement. Being dissatisfied with appellant's appraisal, appellee appealed to a jury for a determination of just and adequate compensation. This appeal follows a judgment including an award of attorney fees entered on a jury verdict considerably in excess of appellant's offer. We affirm.

1. In accordance with the procedure outlined in White v. Ga. Power Co., 237 Ga. 341, 227 S.E.2d 385, and taking into consideration testimony establishing a contingency contract for legal services, the trial court awarded $5,000 as attorney fees. Appellant, citing DeKalb County v. Trustees, etc., Elks, 242 Ga. 707, 251 S.E.2d 243, submits that this award must be reversed. For the reasons which follow, we hold that the ground urged by appellant does not provide a basis for reversing the award of attorney fees.

The recent decision of the Supreme Court in DeKalb County is unmistakably clear: attorney fees for litigation may be awarded Only by statute. See Dept. of Transp. v. Doss, 238 Ga. 480, 486, 233 S.E.2d 144 (Justice Hall dissenting). (In DeKalb County, this dissent was expressly adopted as the majority view.) See also Bowers v. Fulton County, 122 Ga.App. 45(1), 176 S.E.2d 219, affd. 227 Ga. 814, 183 S.E.2d 347.

As recovery of attorney fees from the opposite party to condemnation litigation is neither required by the constitution nor authorized by judicial decision or statute, the award of attorney fees is, under the DeKalb County case, erroneous. We note, however, that the award of attorney fees is not constitutionally prohibited if otherwise appropriate. Id., 242 Ga. p. 709, 251 S.E.2d 243.

2. Recognizing that attorney fees are no longer considered to be an element of just and adequate compensation, we must decide whether a judgment including an award of attorney fees entered when the award of attorney fees was authorized may stand.

A. "The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. To this the courts have established the exception that where a constitutional or statute law has received a given construction by the courts of last resort . . . vested rights (may not be) impaired by a change of construction made by a subsequent decision." Mutual Life Ins. Co. v. Barron, 70 Ga.App. 454, 463, 28 S.E.2d 334, 340, affd. 198 Ga. 1, 30 S.E.2d 879. Accord, Dehco, Inc. v. State Hwy. Dept., 147 Ga.App. 476, 249 S.E.2d 282.

B. Based on the authoritative controlling decision of Calhoun v. State Hwy. Dept., 223 Ga. 65(2), 153 S.E.2d 418, we conclude that the law to be applied on appeal is that contained in the White case. "(T)he vested right of the owners (to just and adequate compensation) cannot be destroyed by applying the (law existing as of the date of the appeal) to a case that has already been tried." Calhoun, supra, p. 67, 153 S.E.2d p. 421, revg. 114 Ga.App. 501(5), 151 S.E.2d 806, holding that a condemnee has no vested right in rules relating to the relevance of evidence for determining just and adequate compensation. See also in this regard Judge Birdsong's opinion in Housing Authority of the City of Atlanta v. Southern R. Co., 150 Ga.App. 4, 256 S.E.2d 606.

C. This court is not unaware of recent decisions of the Supreme Court impliedly (and necessarily) holding that the right to attorney fees as an element of just and adequate compensation is not a vested right. See, e.g., Dept. of Transp. v. Glenn, 243 Ga. 21, 252 S.E.2d 906; Dept. of Transp. v. Merritt, 243 Ga. 52, 252 S.E.2d 508. Perhaps it would be more expedient to implement the holdings of the Supreme Court as expressed in the more recent decisions of that court. But, in interpreting the law, it is our solemn duty and obligation to follow recognized rules.

"(T)he rule which we must here apply is that: 'this court . . . as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obiter as authorized by law. Code § 6-1611. And, if there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case.' (Cits.)" Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga.App. 108, 111, 179 S.E.2d 525, 527.

3. The trial court allowed, over condemnor's objection, testimony that the lowering of the grade of the right-of-way damaged appellant's property. Appellant submits that this evidence did not relate to a proper element of damages and was erroneously admitted. We disagree.

The testimony relating to interference with access from the lowering of the grade was properly admitted. See generally Cheek v. Floyd County, Ga., 308 F.Supp. 777(2) (N.D.Ga.1970) and cits. See also State Hwy. Dept. v. Murray, 102 Ga.App. 210, 215, 115 S.E.2d 711.

4. Appellant submits that the court erred in permitting a nonexpert to testify as to the value of the condemned property. We find no such error.

The witness testified that he lived on the property for an extended period of time, that he lived in or around the county where condemned property was located all of his life (35 years), and that he was familiar with property values in the city and county where the property was situated. As this testimony sufficiently established the facts upon which the opinion was based, the admission of opinion evidence as to value was proper. State Hwy. Dept. v. Chance, 122 Ga.App. 600(1), 178 S.E.2d 212. Compare State Hwy. Dept. v....