Gwinnett County v. Grant

352 S.E.2d 391, 181 Ga. App. 304, 1986 Ga. App. LEXIS 2396

• Court: Court of Appeals of Georgia
• Decided: September 17, 1986
• Docket: 72613
• Status: Published

Opinions

Benham, Judge.

Appellant instituted condemnation proceedings involving land owned by appellee Grant. OCGA § 22-1-102. The trial court appointed a special master who awarded appellee $350,093 on April 18, 1984, and who filed the award that same day. The award was made the judgment of the court on April 25, 1984, and appellee filed an appeal from the award to the trial court on May 2, 1984. On December 4, 1985, appellant filed a motion to dismiss the condemnee’s appeal on the ground that it was not timely filed. See OCGA § 22-2-112. The trial court denied the motion and a jury trial was had on the issue of just and adequate compensation, resulting in a verdict and judgment of $542,879.50 compensation. On appeal, the county’s sole enumeration of error is the denial of its motion to dismiss the condemnee’s appeal of the special master’s award.

OCGA § 22-2-112 provides: “In case any party is dissatisfied with the amount of the award [of the special master], he may, within ten days after the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed . . .” It is undisputed that the condemnee’s May 2 appeal was not filed within ten days after the special master’s award was filed on April 18. See Howell Enterprises v. Atlanta, 123 Ga. App. 767 (1) (182 SE2d 331) (1971). Relying on Hodges v. South Ga. &c. Gas Co., 111 Ga. App. 180 (2) (141 SE2d 182) (1965), appellee contends, and the trial court held, that a demand for a jury trial made by appellee before the special master’s award existed was sufficient to allow jury determination of the issue of just and adequate compensation. In so doing, the trial court implicitly equated a demand for a jury trial with an appeal from the award of a special master.

In Hodges, the assessors’ award was dated May 7 but not filed until May 9. The appeal to jury was filed on May 8, after the award was signed but before it was filed. The motion to dismiss the appeal as untimely was denied, and this court upheld that denial. Hodges, however, is distinguishable from the case at bar. In Hodges, an award was in existence when the appeal was filed; in the case at bar, the demand for a jury trial preceded the special master’s award by two weeks. In point of fact, the hearing before the special master had not yet been held when appellee sought a jury trial of the issue the special master was to decide initially. The factor which distinguishes Hodges from the case at bar, the existence of an award “rendered by a tribunal which is competent to fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved” (id. at 180), mandates differing results in Hodges and the present case. An appeal to jury under OCGA § 22-2-112 is timely even if filed before the special master’s award is filed if the award of the special master is in existence and the rights of the parties fixed, thus ensuring there is something from which to appeal. Id. at 181. Appellee’s appeal to jury filed May 2 was untimely because it was not filed within ten days of the filing of the special master’s award, and his demand for jury trial, filed before a special master award existed, did not qualify as a timely appeal to jury. Inasmuch as no appeal to jury was filed after the award was made and within ten days after the award was filed, the motion to dismiss the appeal should have been granted. OCGA § 22-2-112; Hodges, supra. See also Wisenbaker v. Lowndes County, 175 Ga. App. 825 (335 SE2d 1) (1985).

Judgment reversed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., and Carley, J., concur. Deen, P. J., Pope, and Beasley, JJ., dissent. Sognier, J., dissents in the judgment only.