Georgia Power Company v. Stowers

639 S.E.2d 605, 282 Ga. App. 695, 2006 Fulton County D. Rep. 3830, 2006 Ga. App. LEXIS 1511

• Court: Court of Appeals of Georgia
• Decided: December 1, 2006
• Docket: A06A1594
• Status: Published

Opinions

Miller, Judge.

In this interlocutory appeal, Georgia Power Company challenges the trial court’s denial of its motion to dismiss Melvin Stowers’ appeal, of a special master’s award in a condemnation proceeding. Georgia Power contends that the trial court erred in refusing to dismiss Stowers’ appeal because it failed to satisfy the applicable statutory requirements. Discerning no error, we affirm.

Seeking an easement across Stowers’ property, Georgia Power filed a petition for condemnation and requested the appointment of a special master pursuant to OCGA § 22-2-102. The special master filed its findings of fact and conclusions of law on September 27,2005. On October 7, 2005, the tenth day following the entry of the special master’s award, Stowers filed a pleading titled “Exceptions to the Award of the Special Master and Motion to Dismiss Complaint for Condemnation.” Stowers’ pleading sets forth 41 exceptions to the special master’s rulings on a number of issues and raises various questions of law. Exception 18 asserted that the special master erred in making the value award because Georgia Power “failed to establish the value of consequential damages [to] or the benefit to the remainder [of]” Stowers’ property.

On October 24, 2005, Stowers filed an amendment to his Exceptions clarifying that he was appealing the amount of the special master’s award and requesting a jury trial on the issue of compensation. On November 3, 2005, Georgia Power moved to dismiss Stowers’ appeal as to the value of the special master’s award on the grounds that the Exceptions initially filed by Stowers failed to appeal the issue of value. Rather, Georgia Power claimed the value of the award was not appealed until Stowers attempted to amend his Exceptions, and was therefore not filed or served within the statutorily allotted time frame. The trial court denied the motion to dismiss, finding that the timely filed Exceptions preserved Stowers’ right to appeal the value of the award.

On appeal, Georgia Power argues that the trial court erred in denying its motion because the Exceptions filed by Stowers are legally insufficient to constitute an appeal as to the value of the special master’s award. This question is one of law, and we therefore apply the plain legal error standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Under Georgia’s Special Master Act, OCGA§ 22-2-100 et seq., a party may appeal both the factual and legal findings of a special master and the value of the special master’s award. The appeal of any nonvalue issue is governed by OCGA § 22-2-103. See Leach v. Ga. Power Co., 228 Ga. 16, 21 (4) (183 SE2d 755) (1971). This Code section requires a party to file written exceptions within ten days after the filing of a special master’s award in the superior court in which the award was filed. See City of Savannah Beach v. Thompson, 135 Ga. App. 63, 66 (2) (217 SE2d 304) (1975). A party’s failure to file such exceptions waives that party’s right to contest any nonvalue issue, and appealing “the case in its entirety” on the grounds that the party is “dissatisfied with the ruling” is insufficient to preserve the right to challenge nonvalue aspects of the award. Beck v. Cobb County, 180 Ga. App. 808, 810 (350 SE2d 818) (1986).

An appeal of a special master’s value award, however, is governed by OCGA § 22-2-112, which requires a party “dissatisfied with the amount of the award ... within ten days after the award is filed, [to] enter in writing an appeal from the award to the superior court of the county where the award is filed.” An appeal of the award requesting a jury trial “as to all issues,” without more, preserves a party’s right to a jury trial on the issue of compensation. Styers v. Atlanta Gas Light Co., 263 Ga. 856, 858 (1) (439 SE2d 640) (1994). This rule results from the fact that while specific exceptions are necessary for a judge to rule expeditiously on questions of law, no such necessity exists with respect to questions of value.

A party’s failure to specifically request a jury trial on all issues, however, does not render its appeal invalid. A notice of appeal satisfies OCGA§ 22-2-112, and preserves a party’s right to a jury trial ontheissueofvalue,ifitis “in writing, timely filed, and... expresses] dissatisfaction with the compensation.” Nunnery v. Dept. of Transp., 128 Ga. App. 221, 222 (1) (196 SE2d 171) (1973). Given that Stowers timely filed his Exceptions in writing, the only issue is whether that pleading expressed dissatisfaction with the compensation awarded by the special master. Stowers argues that Exception 18 expresses such dissatisfaction. For the reasons set forth below, we agree.

The question of whether Stowers’ pleading is sufficient to satisfy OCGA§ 22-2-112 is governed by Georgia’s Civil Practice Act, OCGA § 9-11-1 et seq. (the “CPA”). Section 81 of the CPA provides:

This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings . . . shall apply to all such proceedings.

(Emphasis supplied.) OCGA§ 9-11-81.

While a proceeding before a special master constitutes a “special statutory proceeding,” the sufficiency of the pleadings in such a proceeding is governed by the CPA. Nodvin v. Ga. Power Co., 125 Ga. App. 821, 823 (2) (189 SE2d 118) (1972). “No technical forms of pleadings or motions are required under the Civil Practice Act,” Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (1) (254 SE2d 825) (1979), and a pleading is sufficient if it provides a party with “fair notice” of the claim or defense asserted against it. White v. Augusta Motel Hotel Investment Co., 119 Ga. App. 351, 352 (2) (167 SE2d 161) (1969).

Applying the foregoing principles, this Court must determine whether Exception 18 provided Georgia Power with notice that Stowers was objecting to the valuation given his property and was dissatisfied with the amount of compensation awarded by the special master. This question is answered by Georgia Power’s own responsive pleading, in which it denied Exception 18 on the grounds that it “goes to value and is not a proper non-value exception to be considered.”¹

As noted above, Exception 18 asserts that the special master erred in making the award because Georgia Power “failed to establish the value of consequential damages or the benefit to the remainder.” While it may be less than precise, this language nonetheless put Georgia Power on notice that Stowers was dissatisfied with the consequential damages awarded him by the special master. White, supra, 119 Ga. App. at 352 (2).

Here, Georgia Power sought and received an easement running across Stowers’ property

to construct, -erect, install, operate, maintain, inspect, reconstruct, repair, rebuild, renew and replace thereon towers, frames, poles, wires, transformers, service pedestals, and other necessary apparatus, fixtures and appliances for the proper transmission and distribution of electricity, including the right to stretch communication wires on said poles or under said land with necessary appliances, and to place overhead and underground protective wires.

In light of the interest that Georgia Power acquired in his property, and the purposes for which it will use that property, consequential damages potentially represent a significant portion of the compensation Stowers may recover. Those damages, which the United States and Georgia Constitutions require be both just and adequate, are determined entirely by the valuation of the property.²

In the context of an eminent domain proceeding, therefore, Exception 18 cannot be construed as anything but an “expression of dissatisfaction” with the amount of compensation awarded. Stowers is not a litigant who had a judgment entered against him and who is now arguing that the evidence was insufficient to support that verdict. He is a landowner who has been stripped of his property rights in exchange for approximately $185,000. Under these circumstances, logic dictates that Stowers’ assertion that Georgia Power “failed to establish the value of consequential damages” expresses his dissatisfaction with the compensation awarded by the special master.

We therefore affirm the order of the trial court denying Georgia Power’s motion to dismiss Stowers’ appeal as to the value of the special master’s award.

Judgment affirmed.

Johnson, P. J., Barnes, Mikell and Adams, JJ., concur. Andrews, P. J., and Ellington, J., dissent.

1 But for the fact that this admission by Georgia Power represents a conclusion of law, rather than an assertion of fact, it would foreclose the company’s argument on appeal that the exception does not represent an objection to the valuation of the property. See Threatt v. Forsyth County, 262 Ga. App. 186, 189 (2) (585 SE2d 159) (2003).

2 Consequential damages are determined by comparing “the market value of the remainder just after the taking, considering the negative impact of the separation of the part from the whole,” with “the positive impact of the taking of the part upon the value of the remainder just after the taking.” (Emphasis supplied.) Dept. of Transp. v. Gunnels, 175 Ga. App. 632 (1) (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986).