DeKalb County v. Trustees, Decatur Lodge No. 1602

251 S.E.2d 243, 242 Ga. 707, 1978 Ga. LEXIS 1337

• Court: Supreme Court of Georgia
• Decided: November 22, 1978
• Docket: 33628
• Status: Published

Opinions

Marshall, Justice.

The present case is here on certiorari. It involves the award of attorney fees in a condemnation proceeding. A brief review of the development of the law in this area at the outset would be helpful:

In White v. Ga. Power Co., 237 Ga. 341, 343 (227 SE2d 385) (1976), this court held 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.” A three-step procedure was established in White for awarding attorney fees and expenses of litigation: First, the factfinder must determine the fair market value of the property actually taken plus consequential damages to any of the condemnees’ remaining property that is not taken. Second, the factfinder must determine whether additional damages should be paid by the condemnor to the condemnee; and if the factfinder determines that additional damages should be paid, such as attorney fees and reasonable and necessary expenses of litigation, the factfinder must make its recommendation to the trial judge to this effect. Third, if such a recommendation is made, the trial judge must conduct an evidentiary hearing and then determine the amount of such recommended damages and award such amount to the condemnee.

White v. Ga. Power Co., supra, was reaffirmed in Dept. of Transp. v. Doss, 238 Ga. 480 (233 SE2d 144) (1977) and it was also held in that case that, implicitly, the award of attorney fees must be reasonable.

In Dept. of Transp. v. Flint River Cotton Mills, 238 Ga. 717 (235 SE2d 31) (1977), it was held, in accordance with Justice Ingram’s concurrence in White, 237 Ga. at p. 351, that the purpose of awarding attorney fees and litigation expenses is to reimburse the condemnee for those expenses he must incur in order to obtain the fair market value of his property taken; therefore, in Flint River Cotton Mills, the award of attorney fees and expenses of litigation was reversed, since the factfinder had not awarded the condemnee any more for the property than the condemnor had offered.

In the present case, the condemnor offered the condemnee $717,300 for the property. The factfinder, a special master, awarded $844,123 and, in accordance with the procedure set out in White, recommended that attorney fees be awarded. The condemnor presented evidence that based on the valuation of the condemnee’s attorney’s time at $50 to $100 per hour, a reasonable attorney-fee award would lie in the range of $5,000 to $7,500. (The condemnee’s attorney stated in an affidavit submitted to the trial court that he had devoted approximately 50 hours to the case.) The trial court awarded $42,274 in attorney fees, which is one third of the difference between the condemnor’s offer and the ultimate award. The Court of Appeals affirmed, holding that in the absence of guidelines from this court to be used in determining the amount of attorney fees awardable in condemnation cases, it would follow the rule that appellate courts are without authority to fix attorney fees (Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492) (1958)); therefore, the Court of Appeals held that it would affirm an attorney-fee award in a condemnation case if there is any evidence to support it, at least in the absence of clear proof that it is the result of bias or prejudice. We granted certiorari. Held:

The foregoing recitation of the development of the law in this area by this court illustrates the difficulties encountered when appellate courts attempt to legislate. Almost every appeal of eminent domain judgments which reaches this court raises new questions, most of which could have been answered initially by properly drawn legislation.

Argued June 13, 1978 Decided November 22, 1978 Rehearing denied December 5 and December 19, 1978. Harvey, Willard, Elliott & Olsen, Wendell K. Willard, Kutak, Rock & Huie, W. Stell Huie, Charles N. Pursley, Jr., Clara H. Axam, David ,G. Russell, for appellant. Simmons, Martin, Warren & Szczecko, M. T. Simmons, Jr., for appellees. Haas, Holland, Levison & Gibert, Richard N. Hubert, Walter E. Sumner, Thomas N. Austin, Harland, Cashin, Chambers, Davis & Dosier, Harry L. Cashin, Jr., amici curiae.

We have reached the conclusion that this court was in error in White v. Ga. Power Co., 237 Ga. 341, supra, when it held, "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.”

We now overrule White and subsequent cases decided pursuant to its holdings. The reasons for this decision are set forth in the majority opinion in Bowers v. Fulton County, 227 Ga. 814 (183 SE2d 347) (1971) and Justice Hall’s dissenting opinion in Dept. of Transp. v. Doss, 238 Ga. 480, supra.

We reiterate that the majority of this court does not oppose the award of attorney fees in eminent domain cases. We simply hold that a proper construction of our Constitution does not require such award, and we further hold that this is a matter for legislative determination by the General Assembly.

Judgment reversed.

All the Justices concur, except Nichols, C. J., Undercofler, P. J., and Hill, J., who dissent.