O.C.G.A. § 32-3-14 (2019)

Annotations

Law reviews. - For annual survey on

zoning and land use law, see 61 Mercer L. Rev. 427 (2009).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION TIME LIMITATION ON APPEALS PERSONAL SERVICE JOINT OWNERS ISSUES ON APPEAL General Consideration Taking hearing distinguished from appeal from offered compensation. - Taking hearing, as provided in Ga. L. 1973, p. 947, § 1, is a right that is separate and apart from an appeal from the offered compensation as provided in Ga. L. 1973, p. 947, § 1, and does not in any way affect the right of appeal under that section. DOT v. Palmer, 152 Ga. App. 630, 263 S.E.2d 514 (1979). Automatic dismissal under § 9-11-41(e). - Automatic dismissal provision of O.C.G.A. § 9-11-41(e), whereby any action in which no written order is taken for five years is automatically dis-

missed, applies to condemnation proceedings. Adams v. Cobb County, 184 Ga. App. 879, 363 S.E.2d 260 (1987), aff ’d, 258 Ga. 352, 370 S.E.2d 748 (1988). Condemnee who appeals deemed ‘‘plaintiff’’. - For every practical purpose and for every substantive issue, a condemnee who appeals a determination of value to a jury under O.C.G.A. § 32-3-14 is a ‘‘plaintiff.’’ Adams v. Cobb County, 258 Ga. 352, 370 S.E.2d 748 (1988). Doctrine of equitable estoppel is unavailable to extend a property owner’s time for filing a notice of appeal under O.C.G.A. § 32-3-14; thus, a

General Consideration (Cont’d) property owner could not rely on the doctrine. Moreover, the owner did not show that counsel for the state made intentional misstatements or was grossly negligent, and it was not shown that the owner exercised reasonable diligence. Cedartown North P’ship, LLC v. Ga. DOT, 296 Ga. App. 54, 673 S.E.2d 562 (2009). Partial taking condemnation order not final judgment. - Because a partial taking condemnation order was not otherwise a final appealable judgment within the meaning of O.C.G.A. § 5-6-34(a), and the parties could have appealed by complying with the relevant interlocutory appeal requirements, but did not do so, the appeals court lacked jurisdiction to consider either the appeal or the cross-appeal; moreover, the superior court’s rulings on the admissibility of certain evidence constituted no judgment on the merits of any part of the appealing party’s claim for just and adequate compensation. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006). Cited in DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976); DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976); DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977); Department of Transp. v. Rudeseal, 148 Ga. App. 179, 251 S.E.2d 11 (1978); Blonder v. Department of Transp., 156 Ga. App. 711, 275 S.E.2d 762 (1980); Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983); Department of Transp. v. Wright, 169 Ga. App. 332, 312 S.E.2d 824 (1983); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Chambers v. DOT, 172 Ga. App. 197, 322 S.E.2d 366 (1984); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); Department of Transp. v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988); Lovell v. Department of Transp., 187 Ga. App. 259, 370 S.E.2d 27 (1988); Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001). Time Limitation on Appeals Civil practice provisions inapplicable. - Provisions of the Civil Practice Act

(O.C.G.A. Ch. 11, T. 9) which deal with time frames do not apply to periods of time which are definitely fixed by other statutes such as O.C.G.A. § 32-3-14. Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544, cert. denied, 186 Ga. App. 917, 368 S.E.2d 544 (1988). Period for appeal fixed by section. - Granting extensions of time as permitted under certain circumstances by the Civil Practice Act (O.C.G.A. Ch. 11, T. 9) does not apply to periods of time which are definitely fixed by other statutes. McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976). Ga. L. 1973, p. 947, § 1 applies only to possession, while time for filing a notice of appeal is contained in Ga. L. 1973, p. 947, § 1 and is controlling in all cases where an appeal is desired. Department of Transp. v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651, cert. denied, 449 U.S. 843, 101 S. Ct. 125, 66 L. Ed. 2d 51 (1980). Effect of failure to timely file. - When the lessee of a portion of property being condemned did not file a timely notice of appeal, the lessee was not entitled to a jury trial on the valuation of the lessee’s interest in the property and could not raise the issue of business losses. Lil Champ Food Stores, Inc. v. DOT, 230 Ga. App. 715, 498 S.E.2d 94 (1998). Thirty-day period under this section cannot be extended. Department of Transp. v. Palmer, 152 Ga. App. 630, 263 S.E.2d 514 (1979). Time for appeal. - Trial court has no authority or discretion to extend the period of time for filing a notice of appeal. McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976). Right to appeal to a jury from a declaration of taking is absolutely conditional upon the filing of a timely notice of appeal in the superior court, and not even the trial court is empowered to extend the period of time for filing the notice of appeal. Department of Transp. v. Rudeseal, 156 Ga. App. 712, 276 S.E.2d 52 (1980). Statute tolling filing time in cases of fraud not applicable. - O.C.G.A. § 32-3-14 sets forth a mandatory time period for filing an appeal in a condemnation action, not a statute of limitation for

commencing a particular type of action; thus, O.C.G.A. § 9-3-96 did not apply to extend a property owner’s time for filing an appeal. Moreover, the owner did not show that the Department of Transportation committed actual fraud involving moral turpitude or that the owner itself exercised reasonable diligence. Cedartown North P’ship, LLC v. Ga. DOT, 296 Ga. App. 54, 673 S.E.2d 562 (2009). What constituted ‘‘service’’ for purposes of calculating 30 days. - ‘‘Personal service’’ required under Ga. L. 1973, p. 947, § 1 includes all the variations provided in the Civil Practice Act and does not mandate that the condemner be handed the petition individually. Department of Transp. v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979). Filing by cocondemnee. - Condemnee’s notice of appeal is untimely despite the fact that the cocondemnee filed a timely answer because the cocondemnee’s answer was not a notice of appeal where the answer did not express dissatisfaction with the proposed compensation but merely sought to clarify its name. Howard v. Department of Transp., 184 Ga. App. 116, 361 S.E.2d 7 (1987). Condemnee’s statutory period for filing a notice of appeal is not extended by late service on a cocondemnee. Howard v. Department of Transp., 184 Ga. App. 116, 361 S.E.2d 7 (1987). Code Section 32-3-17, allowing intervention, inapplicable to named condemnee. - O.C.G.A. § 32-3-17 makes provision for parties whose claims were unknown at the time the petition was filed and who were not named therein, or for taxpayers seeking to intervene in a condemnation proceeding, and is inapplicable to the situation of a condemnee named in the petition who files an appeal more than 30 days after being served with the petition. Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544, cert. denied, 186 Ga. App. 917, 368 S.E.2d 544 (1988). Appeals less than 30 days after advertising can still be untimely. - When the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in

subsection (f ) of Ga. L. 1973, p. 947, § 1, the appeal was not timely. Department of Transp. v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977). Personal Service Applicability of thirty-day provision. - Thirty-day provision in this section refers only to period following personal service on condemnee as shown by the return of service. Department of Transp. v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977). Joint Owners Appeal allowed when some joint owners not properly served. - Since the record failed to show service on some of the parties named as joint owners in each of several cases, a notice of appeal to a jury on the questions of value and consequential damages was not too late, although filed more than 30 days after the filing of the declaration of taking, since the condemnees were not properly served and did not waive service until the actual filing of the appeal. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975). Issue of personal service to be disposed of as whole. - When a joint notice of appeal is filed by all condemnees, the court should not dismiss the appeal as to some of the appellants who were served in the first instance while allowing it as to others, but the issue should be taken and disposed of as a whole. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975). Issues on Appeal Affidavit as to just compensation not an admission of fact. - Department of Transportation’s affidavit filed pursuant to O.C.G.A. § 32-3-6(b)(5) did not constitute an admission of fact which would be admissible against the Department of Transportation in condemnee’s appeal pursuant to O.C.G.A. § 32-3-14. Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984). Original estimate not binding in jury appeal. - When a condemnee is dissatisfied with the compensation origi-

Issues on Appeal (Cont’d) nally estimated and elects to appeal that issue to a jury, the condemnor is not bound by the condemnor’s original estimate and can present evidence de novo as to fair market value and consequential damages. Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984). Business loss damages need not be specifically pled in notice of appeal. - Because there was no legislative re-

quirement that, in a condemnation proceeding, a party seeking business loss damages had to specifically and separately plead for such in the notice of appeal, in accordance with the consent judgment that the Georgia Department of Transportation was bound by, a lessee’s appeal was to proceed to trial on the lessee’s claims for business loss, damages to trade fixtures, and relocation expenses. DOT v. Camvic Corp., 284 Ga. App. 321, 644 S.E.2d 171 (2007).