Dillard Land Invs., LLC v. Fulton Cnty.

• Decision Date: 11 July 2014
• Docket Number: No. S13G1582.,S13G1582.
• Citation: 295 Ga. 515,761 S.E.2d 282
• Court: Georgia Supreme Court
• Parties: DILLARD LAND INVESTMENTS, LLC v. FULTON COUNTY.

295 Ga. 515

761 S.E.2d 282

DILLARD LAND INVESTMENTS, LLC

v.FULTON COUNTY.

No. S13G1582.

Supreme Court of Georgia.

July 11, 2014.

Angela Dee Robinson, Christian Fowler Torgrimson, Charles N. Pursley Jr., Pursley Friese Torgrimson LLP, Atlanta, Thomas A. Bowman, Maddox, Nix, Bowman & Zoeckler, Conyers, Wendell K. Willard, Law Office of Wendell K. Willard, Sandy Springs, for Appellant.

Diana Lynn Freeman, Larry Wayne Ramsey, Jr., Atlanta, for Appellee.

NAHMIAS, Justice.

We granted certiorari to decide whether a condemnor may voluntarily dismiss a condemnation action, without the consent of the court or the condemnee, after a special master has entered his award valuing the property at issue but before the condemnor has paid the amount of the award into the court registry or to the condemnee. We conclude that a condemnor is not entitled to voluntarilydismiss a condemnation action unilaterally once the special master renders his award, and we reverse the Court of Appeals' judgment to the contrary.

1. On January 18, 2012, the Fulton County Commission adopted a resolution declaring that the County needed more than 12 acres of land on Hollywood Road for the expansion of library facilities. The resolution said that negotiations to purchase the property from its owner, appellant Dillard Land Investments, LLC (“Dillard”), had thus far failed, and authorized the filing of a lawsuit using the “special master” method of condemnation to acquire the property if the negotiations continued to falter. See Special Master Act of 1957, Ga. L.1957, p. 387 (codified as amended at OCGA §§ 22–2–100 to 22–2–114). ¹ On February 24, 2012, the County filed a petition for condemnation, alleging that “all questions of necessity and public convenience with respect to said expansion and the necessity of acquiring the land herein described have been determined” by the County and that the County had “provided, appropriated and made available sufficient funds to pay the adequate and just compensation ... that may be awarded by this Court.”

On March 27, the trial court appointed a special master, and on April 27, Dillard filed an acknowledgment of service. After a May 10 hearing, which was not transcribed, the special master filed an award indicating that he had “heard evidence under oath, both oral and documentation [sic],” and finding that the actual market value of the property was $5,187,500. On May 15, Dillard filed its answer, defenses, and counterclaims to the County's condemnation petition.² On May 16, the trial court entered a judgment declaring that the property was “necessary for the functioning of [the County] and is for a public use”; vesting title to the property in the County upon its payment of the $5,187,500 award into the court registry; and directing the County and Dillard to evenly split the special master's fees and costs.

The County did not pay the award into the registry. Instead, on May 18, the County filed a voluntary dismissal of the condemnation action. See OCGA § 9–11–41(a).³ On June 12, Dillard filed a motion to vacate the County's voluntary dismissal, and on June 15, the County filed a motion to vacate the court's judgment on the special master's award. After a July 17 hearing, the trial court issued an order on August 14 granting Dillard's motion on the ground that the County could not voluntarily dismiss the action without the consent of the court or the condemnee once the special master entered his value award. Also on August 14, the court issued an order denying the County's motion on the ground that the court's entry of a judgment on the award was premature but not void. This order abrogated the prior judgment, authorized the parties to file any non-value objections to the award within 13 days after service of the order, and indicated that the court would thereafter enter a new judgment. Both August 14 orders included a finding that neither party had filed an appeal for a jury trial under OCGA § 22–2–112(a) to dispute the amount of the award and that the time to file such an appeal had expired. On August 23, 2012, the trial court issued a certificate of immediate review.

The Court of Appeals then granted the County's application for an interlocutory appeal and reversed. See Fulton County v. Dillard Land Invs., LLC, 322 Ga.App. 344, 744 S.E.2d 880 (2013). The Court of Appeals began its analysis by focusing on OCGA § 22–1–12, a statute enacted in 2006 as part of the Landowner's Bill of Rights and Private Property Protection Act, Ga. L.2006, p. 39, which entitles property owners to recover their attorney fees and other expenses when a condemnor abandons a condemnation action.⁴ See Dillard, 322 Ga.App. at 345, 744 S.E.2d 880. The court then examined the only prior reported decision citing OCGA § 22–1–12, Gramm v. City of Stockbridge, 297 Ga.App. 165, 676 S.E.2d 818 (2009).⁵ The court recognized that the condemnation action in Gramm was filed prior to the effective date of OCGA § 22–1–12, making that statute inapplicable to that case, but nevertheless found the decision in Gramm “instructive” for this case. Dillard, 322 Ga.App. at 346 n. 4, 744 S.E.2d 880. Noting that, unlike the condemnor in Gramm, Fulton County did not pay the special master's award or take title to the land for any period of time, and filed its voluntary dismissal only two days after the premature entry of the trial court's judgment, the Court of Appeals held that “[u]nder these circumstances, the trial court erred by concluding that Fulton County could not dismiss its condemnation action” unilaterally. Dillard, 322 Ga.App. at 347, 744 S.E.2d 880. Finally, the court rebuffed the cases Dillard cited as “inapposite,” since those cases were “decided under the assessor's [sic] method of condemnation, and they all preceded OCGA § 22–1–12,” adding that “assessors' rulings on condemnation cases [are] self-executing” whereas “the legislature required that special master's awards be adopted by the trial judge.” Dillard, 322 Ga.App. at 347, 744 S.E.2d 880.

We granted Dillard's petition for a writ of certiorari.

2. (a) It has long been established that a condemnor may not voluntarily dismiss a condemnation action unilaterally after the assessors have made their award as to the value of the property at issue, that is, the amount of just compensation that the condemnor must pay the property owner for taking the property. See, e.g., Thomas v. Cent. of Ga. R., 169 Ga. 269, 270, 149 S.E. 884 (1929); Housing Auth. of Atlanta v. Mercer, 123 Ga.App. 38, 43–44, 179 S.E.2d 275 (1970) (citing additional cases). The County argues, and the Court of Appeals held, that this principle does not apply to this case because the special master method of condemnation differs from the assessors method in that the condemnation action does not end with the special master's filing of his award determining the amount of compensation due to the condemnee, since OCGA § 22–2–111 requires the superior court to enter a judgment on the award after addressing any non-value objections.⁶

It is true that OCGA § 22–2–111 requires the court in all special master condemnation cases to enter a formal judgment condemning the property to the condemnor's use, something that is required for an assessors award only if there is an appeal to the court either to hold a jury trial on value or to issue a ruling on any non-value questions of law that the assessors did not refer to the court before entering their award. See OCGA § 22–2–40(c); Thomas, 169 Ga. at 272, 149 S.E. 884.⁷ Whether rendered by assessors or by a special master, however, the award determining the value of the property has the same dispositive effect on that fundamental issue in the condemnation action.Under both methods, the value award can be changed only by a jury, if either party files a timely and proper appeal for a de novo jury determination of value. See OCGA §§ 22–2–82 (assessors method), 22–2–113(c) (special master method). The court has no discretion to change the value awarded under either method. If there are no non-value legal objections, the court takes no action as to an assessors' award or simply makes a special master's award the judgment of the court. See OCGA § 22–2–111 (“Upon the entry of the award of the special master ... and the presentation of the award to the judge of the superior court, the judge shall enter a proper order and judgment of the court condemning the described property ... upon the condemnor's paying into the registry of the court the amount provided in the award.”). Moreover, the Special Master Act does not purport to affect the operation of the voluntary dismissal rule of the Civil Practice Act, OCGA § 9–11–41(a)(1).

(b) Since the original enactment of the Civil Practice Act and OCGA § 9–11–41(a) in 1966, this Court has repeatedly held that

“the plaintiff's right to dismiss cannot be exercised after a verdict, or a finding by the judge, which is equivalent thereto, has been reached.... The principle at the foundation of these decisions is that, after a party has taken the chances of litigation, and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he cannot, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained.”

Cooper v. Rosser, 233 Ga. 388, 388–389, 211 S.E.2d 303 (1974) (quoting People's Bank of Talbotton v. Exchange Bank of Macon, 119 Ga. 366, 368, 46 S.E. 416 (1904)).⁸ See, e.g., Wall v. Thurman, 283 Ga. 533, 533, 661 S.E.2d 549 (2008) (“In numerous cases, we have held that, under our voluntary dismissal statute, OCGA § 9–11–41(a), a trial court's announcement of its decision on the merits of the case precludes a voluntary dismissal.”); Lakes v. Marriott Corp., 264 Ga. 475, 476–477, 448 S.E.2d 203 (1994) (explaining that, “in addition to the express limits in OCGA § 9–11–41(a) regarding the timing of dismissal and regarding cases in which a counterclaim has been asserted,” the...