Department of Transportation v. Franco's Pizza & Delicatessen, Inc.

297 S.E.2d 72, 164 Ga. App. 497, 1982 Ga. App. LEXIS 2846

• Court: Court of Appeals of Georgia
• Decided: November 4, 1982
• Docket: 64379
• Status: Published

Opinions

Shulman, Presiding Judge.

Pursuant to Code Ann. § 95A-605, appellant Department of Transportation (DOT) filed a declaration of taking, condemning property in which appellee had a leasehold interest. Appellee filed a notice of appeal expressing dissatisfaction with the sum designated in the declaration of taking as just and adequate compensation (Code Ann. § 95A-610), and petitioned the court for an interlocutory hearing to be held by a special master. Code Ann. § 95A-611. Unhappy with the special master’s award, DOT also filed a notice of appeal in the superior court. The department further sought partial summary judgment on appellee’s contention that it was entitled to an award of litigation expenses and attorney fees due to appellant’s alleged bad faith and fraud in acquiring the disputed property. The superior court denied appellant’s motion, ruling that a factual question existed as to whether or not DOT had violated state and federal laws and regulations in such a manner as to constitute bad faith. The trial court further held that the issue of litigation expenses and attorney fees for the alleged bad faith was a matter which a jury could consider as a compulsory counterclaim. We granted DOT’s application for interlocutory appeal to review the trial court’s order.

Decided November 4, 1982 Rehearing denied November 23, 1982

1. At the outset, we note that this case is distinguished from White v. Ga. Power Co., 247 Ga. 256 (274 SE2d 565), and its progeny in that appellee is not seeking attorney fees as part of just and adequate compensation for the taking. Instead, appellee bases its claim for attorney fees and litigation expenses on the fraud and bad faith that DOT allegedly exhibited during its acquisition of the property in question. Code Ann. § 95A-607 provides the procedural framework and the remedy for a condemnee who wishes to question the good faith of a condemnor. Appellee, however, did not avail itself of the § 95A-607 procedure, which empowers the trial court to “set aside, vacate, and annul the said declaration of taking, together with any title acquired thereby ...” Code Ann. § 95A-607. Thus, appellee had a forum in which to air its allegations of fraud and bad faith and seek a remedy. Its failure to avail itself of that opportunity does not entitle it now to bring up its allegations of bad faith and fraud in a forum in which the sole issue is just and adequate compensation. See Code Ann. § 95A-612.

2. Appellee argues that it is entitled to damages and attorney fees under § 95A-607 by virtue of Code Ann. §§ 99-3706 and 95A-623 (a) (2) (B). Both of those sections, however, authorize payment for litigation expenses incurred by a condemnee if the final judgment is that the condemnor cannot acquire the property by condemnation or the condemnation proceeding is formally abandoned by the condemnor. Neither set of facts is present here.

The condemnee in the present action sought an inapplicable award too late in the condemnation process. There is no statutory basis for an award of attorney fees and litigation expenses presently available to the condemnee. White v. Ga. Power Co., supra; D.O.T. v. Doss, 238 Ga. 480, 485 (233 SE2d 144) (Justice Hall’s dissent which was expressly adopted as the majority view in DeKalb County v. Trustees, &c. Lodge No. 1602, 242 Ga. 707 (251 SE2d 243)). Furthermore, the order of the trial court empowers the condemnation jury to decide an issue not statutorily assigned to it. For these reasons, the trial court’s denial of appellant’s motion for partial summary judgment was error.

Judgment reversed.

Quillian, C. J., concurs. Carley, J., concurs specially. J. Matthew Dwyer, Jr., Beryl H. Weiner, John R. Strother, Jr., for appellant. Richard N. Hubert, for appellee.