Department of Transportation v. City of Atlanta

380 S.E.2d 265, 259 Ga. 305, 1989 Ga. LEXIS 286, 1989 WL 70142
CourtSupreme Court of Georgia
DecidedJune 23, 1989
Docket46479
StatusPublished
Cited by8 cases

This text of 380 S.E.2d 265 (Department of Transportation v. City of Atlanta) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. City of Atlanta, 380 S.E.2d 265, 259 Ga. 305, 1989 Ga. LEXIS 286, 1989 WL 70142 (Ga. 1989).

Opinions

Gregory, Justice.

This is a continuation of the litigation commonly referred to as the Presidential Parkway case. See Dept. of Transp. v. Brooks, 254 Ga. 303 (328 SE2d 705) (1985) and Dept. of Transp. v. City of Atlanta, 255 Ga. 124 (337 SE2d 327) (1985). Following the enactment of OCGA § 32-3-4 (b), Ga. Laws 1986, p. 1187, § 4, the Department of Transportation (DOT) filed an action to condemn the subject parcels of property for use in construction of the Presidential Parkway. Appellees, private landowners, were permitted to intervene in the case, and filed this action to set aside the declaration of taking. OCGA § 32-3-11. Following a hearing the trial court entered an order which, inter alia, enjoined the DOT from further construction on the Presidential Parkway project until the merits of appellees’ motion to set aside the declaration of taking could be determined. The DOT appeals.

1. The trial court enjoined the DOT from proceeding with construction on the subject parcels as well as the adjacent parcels of project property to which the DOT has already acquired title on the ground that “irreparable injury to the parklands . . . would occur if construction should continue on the adjacent properties, rendering future rulings [of the court] a nullity.”

The DOT argues that because as a matter of law the appellees cannot prevail on their motion to set aside, the trial court erred in ordering the injunction. Our study of the record indicates that any prediction of the outcome of this case is problematic because of the complexity of the issues involved. For that reason the trial court acted properly in not attempting to predict the outcome of the case, but instead in looking to other factors to determine whether the application for interlocutory injunction should be granted. See Milton Frank Allen Publications v. Ga. Assn. of Petroleum Retailers, 223 Ga. 784 (158 SE2d 248) (1967).

The trial court reasoned that an interlocutory injunction was nec[306]*306essary in order to preserve the status quo prior to a determination of the merits of the case. The “purpose for granting interlocutory injunctions is to preserve the status quo of the parties pending a final adjudication of the case.” MARTA v. Wallace, 243 Ga. 491, 494 (254 SE2d 822) (1979). The trial court should consider whether a denial of the petition for injunctive relief would work an “ ‘irreparable injury’ to the plaintiff or leave the plaintiff ‘practically remediless’ in the event it ‘should thereafter establish the truth of its contentions.’ ” Id. at 495. In this case the trial court reasoned that if the injunction were denied but the appellees ultimately prevailed on the merits, they would be remediless in that the subject property might by that time be substantially altered by the DOT’s construction. We hold that the trial court did not abuse its discretion in enjoining construction on the Parkway project until it determines the merits of the motion to set aside the declaration of taking. OCGA § 9-5-8.

2. The DOT argues that the trial court has forfeited jurisdiction over the motion to set aside the declaration of taking because it failed to conduct a hearing on the merits of this motion within 60 days as is, the DOT maintains, required by OCGA § 32-3-11 (d). This code section provides that once the condemnee has filed a motion to set aside the declaration of taking,

[t]he presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside. . . . Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking, and with the right of appeal by either party as in other cases.

As can be seen the statute requires that a hearing be held, not that a ruling be made, within the 60-day time period. Such a hearing was held at which time the court issued the injunction in question, required the parties to submit briefs on the issues raised by the motion to set aside, and scheduled several days of additional hearings to determine the merits of the motion. The DOT appealed the trial court’s rulings before the additional hearings were held. We hold the trial court’s procedure was proper under the statute.

3. (a) Last, the DOT argues the trial court has no authority to order the parties to mediate this case. The trial court directed the parties to participate in the process of mediation and engage in discussions in good faith. A deadline was fixed for the parties to furnish the names of those who would represent them in mediation. A media[307]*307tor selected by the court would contact the representatives who were directed to make themselves available to the mediator at his convenience and they were to cooperate with the mediator.

We wish to encourage the use of mediation as a means of dispute resolution. At the same time we recognize that parties may not be ordered to settle their disputes. A great service a court may provide for litigants is a referral to mediation. There are times when parties have reached a standstill in settlement negotiations such that for either party to suggest mediation is to perhaps admit a weakness or at least suggest he is willing to yield further. At this point a referral to mediation by the court may secretly be welcomed by both sides. Then too, it may be that the parties are simply unaware of the benefit which may flow from mediation and a referral by a court may serve to introduce them to the process. In any event the court should simply make the referral and leave it to the parties from that point. The court may not order them to resolve their differences in mediation nor to yield on any matter they choose not to yield. At the same time every civil case including those where state agencies such as the DOT are involved may be considered a possible candidate for referral to mediation. It shall be done in a way not to interfere with nor delay the right of the parties to litigate the issues.

(b) The DOT maintains that mediation is inappropriate in this case where only issues of law or issues which involve “the exclusive functions of the DOT” are raised. According to the DOT, the issues presented in this case are those which only a court may resolve. This argument misperceives the purpose of mediation.

In his book, The Mediation Process, (1986), Christopher W. Moore discusses the four primary elements of mediation. First, it is a voluntary process. Second, mediation leaves the decision-making power in the hands of the parties. Third, the mediator is a neutral third party who has no decision-making authority. And last, the mediator assists the parties in voluntarily reaching a settlement.

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Cite This Page — Counsel Stack

Bluebook (online)
380 S.E.2d 265, 259 Ga. 305, 1989 Ga. LEXIS 286, 1989 WL 70142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-city-of-atlanta-ga-1989.