White v. Georgia Power Co., 30549
| Decision Date | 15 July 1976 |
| Docket Number | No. 30549,30549 |
| Citation | 237 Ga. 341,227 S.E.2d 385 |
| Parties | Houston WHITE v. GEORGIA POWER COMPANY. |
| Court | Georgia Supreme Court |
belonging to the appellant. The action was brought under the Special Master Act, Code Ann. Ch. 36-6A, and in September, 1969, a judgment vested the interest in the land sought to be condemned in the appellee was entered in the trial court. Both parties filed appeals from the award of the Special Master to a jury in the superior court 'as to the value of the property taken or the amount of damage done.' Code Ann. § 36-614a.
In October of 1971, the trial judge entered a pre-trial order in the case. Paragraph 4 of that pre-trial order was:
'The sole issue in this case is value of the property taken for the easement of condemnor (just and adequate compensation) plus any consequential damages to the remainder of the condemnee's property.
'The condemnee filed an amendment to Paragraph 8, Subparagraphs 5 and 6 on August 28, 1971, in which he seeks to recover attorney's fees and expenses of litigation in this case, which must be considered by the court in view of Code § 81A-116, which requires the court to simplify the issues made by the pleadings in a pre-trial proceeding.
'The right to recover attorneys' fees and expenses of litigation are not embraced braced within just and adequate compensation for land taken by eminent domain and consequently is not an issue in this case. (See Bowers v. Fulton County, (227 Ga. 814, 183 S.E.2d 347) Supreme Court of Georgia, No. 26035, decided July 9, 1971.)
'The Court, therefore, rules in this case as a matter of Constitutional construction of Article I, Section III, Paragraph I of the Constitution of Georgia of 1945, the condemnee is not entitled to be paid attorneys' fees or expenses of litigation as a part of just and adequate compensation for land taken or damaged by eminent domain, and the said amendment filed August 28, 1971 is ordered stricken from the record in this case and the allegations of Paragraph 8, Subparagraphs 5 and 6 are stricken from the answer of defendant-condemnee.'
The appellant sought and obtained a certificate for an interlocutory appeal to this court for review of the above-quoted portion of the pre-trial order. The interlocutory appeal was docketed in this court, fully briefed, orally argued, and on February 10, 1972, prior to the rendition of a decision by this court, the appeal was voluntarily dismissed by the condemnee.
The case proceeded to trial before a jury in September of 1973; the jury returned a verdict that was less than the amount of the award of the Special Master; and judgment was entered in favor of the condemnor for the difference between the award and the jury verdict plus interest from the date of the jury verdict.
The appellant filed a motion for new trial; the motion for new trial was amended on March 24, 1975; and on July 3, 1975, the trial judge entered a judgment that denied a new trial on each and every ground of the amended motion. The appeal here is from that judgment.
1. Appellant's first enumerated error contends that attorney fees and expenses of litigation are elements of damage for which a condemnee must be compensated in compliance with Georgia's constitutional provision requiring payment of just and adequate compensation. The meaning of the words 'just and adequate compensation' as contained in our Constitution was defined in the case of Bowers v. Fulton County, 122 Ga.App. 45, 176 S.E.2d 219 (1970), affirmed 227 Ga. 814, 183 S.E.2d 347 (1971). Bowers was decided in this court with two visiting superior court judges, because two of the members of this court were disqualified in that case. Bowers was a 4-3 decision with one of the visiting judges voting with the majority and the other visiting judge voting with the minority of three. Since Bowers was decided, five new members have taken their places on this court. One of those new members, Justice Jordan, is disqualified in this case. We therefore have another visiting superior court judge, Judge Calhoun, sitting in this case where the 'constitutional construction issue' is again raised. A majority sitting in this case votes to reasssess the constitutional issue. The minority voting in this case would not reopen the constitutional construction issue, but would follow the rule laid down in Bowers in 1971 and apply it in the instant case which had its inception in 1969.
We now hold that the words 'just and adequate compensation' contained in our Constitution are to be interpreted by the judiciary to include attorney fees incurred by a condemnee or condemnees in an eminent domain case and are also to be interpreted to include all reasonable and necessary expenses of litigation incurred by such condemnees in eminent domain cases.
As no statutory procedure now exists for handling this feature of the case, we must give some direction in this and other condemnation cases until such time as the General Assembly may determine an appropriate procedure.
First, it shall be the duty of the fact finder, whether it be three assessors, a Special Master, or a jury, to determine the fair market value of the property actually taken plus consequential damages to any of the condemnee's remaining property that is not taken.
Second, it shall be the duty of the fact finder to determine whether any additional damages should be paid by the condemnor to the condemnee. And if the fact finder so determines that additional damages should be paid, such as attorney fees and reasonable and necessary expenses of litigation, the fact finder shall make its recommendation to the trial judge to that effect.
Third, if such a recommendation by the fact finder is made to the trial judge, he shall then conduct a hearing, receive evidence as to the value of such recommended damages, and the trial judge himself shall then make a determination, based on the submitted evidence, of the amount of such recommended damages and award such amount to the condemnee as being a part of 'just and adequate compensation' for the property taken.
In the instant case we affirm the judgment rendered below but order further proceedings in the trial court consistent with this opinion.
Upon remand of this case to the trial court, the trial judge shall, unless a jury is waived by both parties, convene a jury and submit to it the issue of whether the condemnee in this case is entitled to attorney fees and reasonable and necessary expenses of litigation in this case as a part of 'just and adequate compensation.' If the jury makes a negative determination on this issue, that ends the matter. On the other hand, if the jury makes an affirmative determination on this issue, the trial judge shall then conduct a hearing, receive evidence, and make an award to the condemnee of attorney fees and reasonable and necessary expenses of litigation as a part of 'just and adequate compensation' in this case.
This having been done, and unless there is another appeal from the further proceedings that we now order, this case will have been concluded.
2. The appellant enumerates the denial of a new trial as being error for several reasons. The first is the so-called general grounds. He recognizes that 'the appellate court passes not on the weight but on the sufficiency of the evidence, and it is the court's duty to determine whether the verdict as rendered can be sustained under any reasonable view of the proof submitted.' Having recognized this proposition, the appellant nevertheless goes on to ask this court to weigh the evidence, saying in his brief: 'It is the appellant's contention that the verdict as rendered cannot be sustained for the reason that the greater weight of the evidence is on the side of the condemnee.' We conclude that the verdict returned by the jury was within the range of the evidence presented to the jury, and this contention is without merit.
Second, the appellant contends that the trial court erred in refusing to allow an expert witness to testify about two specific instances in which three young people were struck and injured by lightning while standing by high voltage wires. The trial judge disallowed this evidence on the ground that it related to collateral issues that might unduly delay the trial of the primary issue to be decided in the case. In Ludwig v. J. J. Newberry Co., 78 Ga.App. 871, 876(2), 52 S.E.2d 485, 489 (1949), it was held: ...
To continue reading
Request your trial
-
Georgia Power Co. v. Sanders
...time Dodson was decided, under Georgia law, reasonable attorneys' fees would have been included in the award. See White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976), overruled, DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978). Since then, how......
-
Georgia Power Co. v. 54.20 Acres of Land, Land Lots 315 and 326 of 3rd Land Dist.
...attorneys' fee in their award; in a Georgia proceeding a reasonable attorneys' fee would be allowed. See White v. Georgia Power Company, Ga.1976, 237 Ga. 341, 227 S.E.2d 385. After these instructions were first made in 1975 several condemnees in cases other than No. 75-4448 filed motions an......
-
Sharpe v. Department of Transp.
...experts' credibility, and to assist the jury in determining the weight to be given the testimony, see generally White v. Ga. Power Co., 237 Ga. 341(3), 227 S.E.2d 385 (1976), overruled on other grounds, DeKalb Co. v. Trustees, etc., Elks, 242 Ga. 707, 709, 251 S.E.2d 243 (1978), the testimo......
-
Solko v. State Roads Com'n of State Highway Admin.
...domain cases have the burden of proving the just compensation to which they are entitled).6 See, e.g., White v. George Power Co., 237 Ga. 341, 227 S.E.2d 385, 391 (1976) (per curiam) (state law is settled that the condemnor has the burden of proof in condemnation cases and that the right to......