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September 3rd, 2013 — By — In News & Events

Owners’ Counsel of America Files Amicus Brief in Support of Georgia Landowner in Eminent Domain Case on Appeal to the Supreme Court of Georgia

The Owners’ Counsel of America has filed an amicus curiae brief in support of the landowner in Dillard Land Investments, LLC v. Fulton County, Georgia (No. S13C1582) urging the Supreme Court of the State of Georgia to grant certiorari review and correct the decision by the Georgia Court of Appeals, which permits an improper use of eminent domain power and is grossly unfair to Georgia landowners. OCA believes there are important considerations regarding policy and equity in condemnation proceedings which stand to have serious adverse effects upon the rights of Georgia’s private property owners.

This case involves the taking of private property by the County of Fulton under Georgia’s special master method for condemnation proceedings pursuant to O.C.G.A. § 22-2-2. Under this method, a special master is appointed to hear testimony relating to the value of the property taken by eminent domain and determines the amount of just compensation to award a property owner for the property acquired.

In the Dillard case, the special master filed an award with the trial court which then entered a judgment adopting the award. Fulton County filed a voluntary dismissal of the condemnation petition two days after the entry of the judgment. Dillard responded with an emergency motion to vacate and set aside the voluntary dismissal, which the trial court granted. On interlocutory appeal by Fulton County, the appellate court reversed the trial court’s order setting aside the voluntarily dismissal. If allowed to stand, the appellate court’s decision will permit Fulton County and any other condemning authority in Georgia to unilaterally dismiss a condemnation action after the entry of an award of just compensation and to refile the condemnation at a later date in hopes of obtaining a more favorable result.

Charles L. Ruffin, shareholder in the Atlanta and Macon offices of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC and the Georgia representative of the Owners’ Counsel of America, prepared and filed the brief on behalf of OCA. “Uncertainty as to whether property will be condemned negatively affects a property’s marketability and an owner’s ability to confidently invest in that property or comfortably enjoy the use of it,” explained Ruffin. “Additionally, as a matter of policy, if this appellate decision is allowed to stand, a condemnor may assess, at no risk to itself and at the owner’s expense, whether taking private property is economically feasible. This is an improper use of eminent domain power and grossly unfair to Georgia’s property owners.”

OCA’s amicus brief argues that the Georgia Court of Appeals erred in its decision in this case and that this decision unfairly disadvantages property owners in condemnation proceedings. The brief contends that neither Georgia statutes nor case law precedent support the dismissal of a condemnation proceeding at any time prior to the payment of a special master’s award, as the appellate court has held in this case. Further, the brief argues that the Court of Appeals erred in disregarding condemnation case precedent under the assessor method as inapplicable to this case. Under the assessor method, a condemnor may not dismiss condemnation proceedings following the entry of the assessor’s award. OCA’s brief asserts that special master awards closely resemble assessor awards, have similarly independent legal significance and that case law decided in assessor cases should apply in special master proceedings.

“Should the rule as set forth in the appellate decision in this case be allowed to stand, condemnors will effectively be allowed two shots at trying their case,” said Ruffin. “If a condemnor disagrees with a special master’s award, it can dismiss and refile the case, with the advantage of having knowledge of the case a property owner will present. The condemnor is effectively given a ‘do-over’ and permitted an opportunity to refile in hopes of achieving a more favorable award in a different action.”

Owners’ Counsel of America urges the Supreme Court of Georgia to grant certiorari review of this case to correct the erroneous decision of the appellate court below and to safeguard the rights of Georgia’s private property owners.