Department of Transportation v. Petkas

377 S.E.2d 166, 189 Ga. App. 633
CourtCourt of Appeals of Georgia
DecidedNovember 29, 1988
Docket76525, 76526
StatusPublished
Cited by24 cases

This text of 377 S.E.2d 166 (Department of Transportation v. Petkas) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Petkas, 377 S.E.2d 166, 189 Ga. App. 633 (Ga. Ct. App. 1988).

Opinions

Carley, Judge.

Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) condemned property which was owned by Mr. Nick Petkas and others (condemnees). The issue of just and adequate compensation was tried before a jury and the verdict which was returned was in excess of the amount which had been paid into court by DOT. The trial court entered judgment in favor of the condemnees for the difference. Thereafter, DOT filed a motion for new trial. Relying upon OCGA § 32-3-19 (b), DOT also subsequently moved that the judgment in favor of the condemnees be vacated as having been prematurely entered on the jury’s verdict. The trial court denied DOT’s motion for new trial, but it did order that the judgment in favor of the condemnees be set aside. In Case No. 76525, DOT appeals from the denial of its motion for new trial. In Case No. 76526, the condemnees cross-appeal from the setting aside of the judgment.

[634]*634 Case No. 76526

1. Because the cross-appeal raises an issue which relates to the existence of appellate jurisdiction over this and other condemnation actions initiated pursuant to OCGA § 32-3-1 et seq., that appeal will be addressed first.

The condemnees enumerate as error the grant of DOT’S motion to set aside the judgment which had been entered on the jury’s verdict. As previously indicated, in urging that the judgment in favor of the condemnees be set aside as premature, DOT relied upon OCGA § 32-3-19 (b) and, in granting the motion to set aside, the trial court also relied upon that statute. OCGA § 32-3-19 (b) provides: “After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking and which shall bear interest as provided in subsection (c) of this Code section. . . .” (Emphasis supplied.) Under DOT’s construction of OCGA § 32-3-19 (b), the entry of judgment in this case would have been authorized had no timely motion for new trial been filed but, since a timely motion for new trial was filed, the entry of judgment was premature and prohibited.

Before addressing the issue of what the statute prohibits, consideration must be given to what the statute authorizes. If read literally, OCGA § 32-3-19 (b) contemplates that the trial court “shall” enter judgment on the jury’s verdict in three enumerated instances. First, the trial court “shall” enter judgment “where no motion for new trial. ... is filed within the time provided for by law. ...” However, “the time provided for by law” for the filing of a motion for new trial does not begin to run until such time as a judgment has been entered on the jury’s verdict. Accordingly, the direction that judgment “shall” be entered in this enumerated instance is mere surplusage. A judgment “shall” necessarily have been entered by the trial court in all instances where no timely motion for new trial has been filed, for the very reason that no motion for new trial could otherwise have been timely filed. Second, OCGA § 32-3-19 (b) provides that the trial court “shall” enter judgment “where no . . . notice of appeal is filed within the time provided for by law. . . .” However, “the time provided for by law” for the filing of a notice of appeal likewise does not begin to run until such time as a judgment has been entered on the jury’s verdict. Accordingly, the direction that judgment “shall” be entered in [635]*635this enumerated instance is also mere surplusage. A judgment “shall” necessarily have been entered by the trial court in all instances where no timely notice of appeal has been filed because, absent the entry of such judgment, no notice of appeal could otherwise have been timely filed. Third, OCGA § 32-3-19 (b) provides that the trial court “shall” enter judgment “where such verdict has been affirmed by a proper appellate court. . . .” This portion of the statute is either meaningless at worst, or it is mere surplusage at best. An appellate court has no jurisdiction to hear an appeal from a jury’s “verdict” and, therefore, a direction that judgment “shall” be entered where the “verdict” of the jury has been affirmed on appeal is meaningless. If the word “verdict” is to be read as “judgment,” then the direction that judgment “shall” be entered by the trial court after an affirmance on appeal is no more than mere surplusage. An appellate court would have no jurisdiction over the appeal unless judgment had been entered on the jury’s verdict. “[Tjhere must be an entry of judgment to finally dispose of the case or for the purpose of using the judgment to support an appeal to this court or the Supreme Court. [Cits.]” Dunagan v. Sims, 119 Ga. App. 765, 767 (1) (168 SE2d 914) (1969). Accordingly, a judgment “shall” necessarily have been entered by the trial court in all instances where there has been an affirmance of the case by an appellate court, for the reason that, absent the entry of such a judgment, appellate jurisdiction would otherwise be lacking.

“Where possible, we construe language used by the General Assembly in a manner that will not render it meaningless or mere surplusage. [Cit.]” State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982). “[I]t is nevertheless a cardinal rule of construction that the legislative intent shall be effectuated, even though some of the verbiage of an enactment may have to be eliminated from the text.” Youmans v. State, 7 Ga. App. 101, 103 (1) (66 SE 383) (1909). It is clear that the legislature intended that the parties to a jury trial which is held in a condemnation action initiated pursuant to OCGA § 32-3-1 et seq. have “the same right to move for a new trial and file a notice of appeal as in other cases at law. . . .” OCGA § 32-3-16 (a). If any effect is to be given to that clear legislative intent, it is not possible to construe the relevant language of OCGA § 32-3-19 (b) as being anything other than meaningless or mere surplusage.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kudzu Capital, LLC v. City of Decatur
Court of Appeals of Georgia, 2023
TEMPLE v. HILLEGASS Et Al.
810 S.E.2d 625 (Court of Appeals of Georgia, 2018)
Anita Postell v. Vicki Hankla
Court of Appeals of Georgia, 2012
Postell v. Hankla
728 S.E.2d 886 (Court of Appeals of Georgia, 2012)
CNL APF Partners, LP v. Department of Transportation
705 S.E.2d 862 (Court of Appeals of Georgia, 2010)
Department of Transportation v. Jordan
684 S.E.2d 141 (Court of Appeals of Georgia, 2009)
Monterrey Mexican Restaurant of Wise, Inc. v. Leon
638 S.E.2d 879 (Court of Appeals of Georgia, 2006)
Ware v. Henry County Water & Sewerage Authority
575 S.E.2d 654 (Court of Appeals of Georgia, 2002)
Department of Transportation v. Mendel
517 S.E.2d 365 (Court of Appeals of Georgia, 1999)
Stafford v. Bryan County Board of Education
466 S.E.2d 637 (Court of Appeals of Georgia, 1996)
Carver v. State
430 S.E.2d 790 (Court of Appeals of Georgia, 1993)
Taylor v. Department of Transportation
429 S.E.2d 108 (Court of Appeals of Georgia, 1993)
Department of Transportation v. Ultima-Trimble, Ltd.
418 S.E.2d 820 (Court of Appeals of Georgia, 1992)
Brinson v. State
410 S.E.2d 50 (Court of Appeals of Georgia, 1991)
Department of Transportation v. Franco's Pizza & Delicatessen, Inc.
409 S.E.2d 281 (Court of Appeals of Georgia, 1991)
McDaniel v. Department of Transportation
409 S.E.2d 552 (Court of Appeals of Georgia, 1991)
Antique Center of Roswell, Inc. v. City of Roswell
397 S.E.2d 146 (Court of Appeals of Georgia, 1990)
Saffold v. Carter
739 F. Supp. 1541 (S.D. Georgia, 1990)
Department of Transportation v. Shugart
392 S.E.2d 576 (Court of Appeals of Georgia, 1990)
Metropolitan Atlanta Rapid Transit Authority v. Martin
388 S.E.2d 346 (Court of Appeals of Georgia, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
377 S.E.2d 166, 189 Ga. App. 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-petkas-gactapp-1988.