RECENT GEORGIA CONDEMNATION CASES
By R. Matthew Reeves
Gwinnett County’s renewal of the one-cent Special Purpose Local Option Sales Tax in November of 2013 provides three more years of millions of dollars of local funding for transportation projects, which will no doubt produce more condemnation cases in Gwinnett County. Eminent domain law remains a highly specialized area of Georgia law, as evidenced by several reported condemnation cases over the past year.
Condemnation cases often require application of other areas of Georgia law, and in Postell v. Bd. of Commissioners of Houston County, 317 Ga. App. 898 (2012), probate law was applied. As part of a road project, Houston County condemned part of a 101 acre tract that Mr. Postell’s great-grandfather owned until he died intestate in 1949. Several weeks after the property was condemned, Mr. Postell was conveyed the property by way of a quit claim deed from his mother. The Court of Appeals affirmed the denial of Mr. Postell’s motion to set aside the condemnation, holding that Mr. Postell had no standing to challenge the taking because the quit claim deed was not recorded until after title had passed to the condemning authority. The Postell court noted that a petition for condemnation is not merely a pleading, but is an instrument which passes title.
Fulton County v. Dillard Land Investments, LLC, 322 Ga. App. 344 (2013), also analyzed when a condemnation becomes final. Dillard concerned a condemnation to expand a library, which must proceed under a special master form of condemnation, rather than a declaration of taking as in road-related condemnations. The Special Master opined that the property owner was entitled to $5,187,500.00. Apparently shell-shocked by the award, Fulton County attempted to voluntarily dismiss the case and abandon the proposed condemnation before the massive sum was paid. The Court of Appeals reversed the trial court, and held that Fulton County was authorized to dismiss the case. The Court’s reasoning hinged upon the fact that title does not pass in a special master condemnation until money is paid into the registry of court pursuant to the special master’s award.
Georgia Dept. of Transportation v. Jackson, 322 Ga. App. 212 (2013), was an inverse condemnation case in which a property owner claimed that the DOT condemned a property interest he owned, when the DOT closed a driveway that led to his property. Between the DOT’s road and the owner’s property were a tract with no owner of record, and a railroad track. Based on aerial photographs and evidence of use of the driveway for decades, including testimony from a local historian and attorney, Judge Bill Ray wrote an opinion affirming a jury verdict based on the inverse condemnation of the property owner’s prescriptive easement.
Power companies have the power of eminent domain to acquire land for transmission likes and other infrastructure. In Boston Creek Holdings, LLLP v. Amicalola Electrical Membership Corp., 320 Ga. App. 375 (2013), the Court held that there is a one-year statute of limitations for claims against power companies for occupying the lands of others. In this case, potential class action claims filed in 2011 based on power lines installed between 1979 and 2008 were dismissed on statute of limitations grounds.
In Amica Mutual Insurance Co. v. Gwinnett County Police Department, 738 S.E.2d 622 (Ga. Ct. App. Feb. 19, 2013), distinguished jurist Judge Michael Clark was once again affirmed, when the Court of Appeals held that Gwinnett County was entitled to sovereign immunity against an inverse condemnation claim based on damage caused during a police stand- off. Judge Clark and the Court of Appeals sided with effective but messy cops in this subrogation suit following a homeowner’s insurance claim based upon damage to a home during the execution of an aggravated assault arrest warrant. Former Gwinnett County Bar Association President Tuwanda Williams and County Attorney Van Stephens won this appeal.
If probate law, seven-figure Fulton County awards unrecorded driveway easements, “S.O.L.” issues, and knock-down drag-out fights with cops were not colorful enough, the barring of alcohol in private booths at a nude dancing club near Hartsfield-Jackson Airport rounds out this review of recent eminent domain cases. In Walleye, LLC v. City of Forest Park, 322 Ga. App. 562 (2013), the Court of Appeals affirmed summary judgment on an inverse condemnation claim, holding that based on the facts of the case, after passage of an alcohol-nudity ordinance, the subject property did not experience a regulatory taking.
Matthew “Matt” Reeves is a former President of the GCBA, a partner at Duluth law firm Andersen, Tate & Carr, P.C., and practices real estate, business and probate litigation, including representing property owners and business owners in eminent domain matters.
This article was previously published in the Gwinnett County Bar Association newsletter.
Trinity M. Hundredmark and Martina G. Palatto of Andersen, Tate & Carr P.C. in Duluth have been appointed to serve on the Young Lawyers Division of the State Bar of Georgia as part of the Board of Directors. Hundredmark and Palatto will act as directors of special projects for education and will assist in promoting initiatives set by the YLD president, Sharri Edenfield, focusing on service to military veterans, leadership development in YLD members and finding solutions to access to justice issues.
Hundredmark was appointed by the Supreme Court of Georgia to serve as a District 9 chair on the Unauthorized Practice of Law Committee for the State Bar of Georgia. Palatto is a cum laude graduate of the University of Georgia School of Law and has served as executive editor of the Journal of Intellectual Property Law, president of the Health Law Society and vice president of the Student Bar Association.
The YLD has more than 25 committees that produce a variety of projects and programs. It has also gained national recognition by winning several American Bar Association awards for its projects and publications.
As posted in the Gwinnett GAB section of the Gwinnett Daily Post
ATC’s Melody Glouton was recently recognized as a part of the legal team of what is rated as #14 Top Georgia Verdict of 2013 by the Daily Report. The case, a Product liability case, revolved around the defective operation of a seatbelt during a car accident. For additional details, please click the attached link.
Both shocking and concerning, the recent incidents of children dying after being left unattended in vehicles is a topic near and dear to many Americans. Tuesday July 15th, Patrick McDonough was asked to join the Nancy Grace Show as an expert defense attorney to offer his insights on these recent tragedies and explain the potential outcomes of these criminal cases. Filling in for Nancy Grace, Jean Casarez facilitated discussion surrounding these latest cases.
Cooper, a 22-month-old baby boy was left for dead in his father’s car after a long, hot summer day. Cooper’s father, Justin Harris, is currently imprisoned, waiting for what will most likely lead to a Grand Jury Trial. However, if the District Attorney’s Office does not make an indictment in the next 62 days, Harris may walk on bond. While many are focused on the potential conclusion of Harris’s case, Casarez looked to McDonough for his unique insight as to what might happen to Leanna, Cooper’s mother.
McDonough told Casarez that the DA’s Office will be conducting a rigorous investigation along with the Cobb County Police Department to determine the association that Leanna had in conjunction with this heartbreaking death. Employing a wealth of knowledge and a plethora of legal experience, McDonough explained to listeners that it is simply “too early to tell” what will happen to Leanna. While authorities were busy gathering evidence against Leanna, McDonough offered a unique perspective on the challenges the state faces in charging Leanna:
If authorities decide to indict Leanna and she becomes a co-defendant, she could invoke her 5th amendment and the prosecution would not be able to use testimony against her husband. “They’ve got a balancing test that they are weighing. First, do they have enough evidence to arrest her – which it doesn’t appear that they do at this time. And second, if its close, do they even want to go that route?”
Next, Mr. McDonough was asked to weigh in on his opinion concerning another disastrous case in which a father left his 3-month-old child in the car to die. While there are two sides to every story, McDonough dissected the facts, analyzed the situation, and communicated the important balance of justice when dealing with emotional cases such as the one at hand.
While court officials have claimed his statements to be inaccurate, the Forest Park, Georgia resident was allegedly told he was not allowed to have his child with him when he entered the Clayton County Courthouse Monday afternoon. Based on this understanding, Courtney Lamont Kidd took his daughter back to his vehicle and proceeded to attend his court hearing. While many are quick to attack Kidd for his actions, McDonough offers a logical and reasonable justification for people like Courtney.
While he believes these stories are positively raising awareness for child safety, McDonough knows, “It was still a poor choice and he should have tried to make other arrangements, but he’s facing and bench warrant if he doesn’t go to court.” In McDonough’s long tenure as a highly proficient defense attorney, he understands that some people think they can just run in, sign a guilty plea, and be done. McDonough has seen this in the past and has also represented clients similar to Kidd in the past – “god-fearing, wonderful, good people” who sometimes think ‘Hey, I can just go in quickly and get something done and come back out.” Kidd is one of these people – a good man who simply made a mistake – and even worse, he was trying to obey the rules.
Congratulations to Matt Smith for being chosen to be part of the 30th Class of Leadership Gwinnett!
Matt will soon join the number of attorneys at ATC that have graduated from the Leadership Gwinnett program over the years, with the skills to educate, equip, and engage in the community. Those attorneys include: Ethel Andersen, Tom Tate, Brad Carr, Kathleen Guy, Scott Duncan, Jim Joedecke, Pat McDonough, Don Swift, Amy Bray and Matt Reeves .
With a strong history of creating a legacy of success in Gwinnett and metro Atlanta, the 30th class of Leadership Gwinnett is set to begin in August 2014 to drive positive change in the region. From the nearly 350 nominations received for the nine-month experience, Leadership Gwinnett alumni selected the final group of 40 based on work experience, accomplishments, community involvement, education and other information from their individual applications. The program year is comprised of two overnight retreats, seven learning days covering leadership in a world class community, infrastructure, economics, education, health & human services, justice and regional relations, as well as monthly study groups and other activities.
ATC’s 2014 United Way inititave continues! We want to thank everyone who has contributed – whether with products, shoeboxes, decorations or online donations – to make this year’s drive another success for us. We are so grateful for what we are blessed to have, and it’s always a pleasure to share with others in need.
January 27, 2014 – In this episode, Patrick McDonough weighs in on video evidence in a case involving a 23-year-old girl killed over an alleged photo bomb incident and how the suspect’s defense might approach the case. McDonough hammers home that the video will become Defense exhibit 1 since it appears from the video that the person they arrested was actually hit by the alleged victim and fell to the side when the real perpetrator kicked the victim while on the ground.
Next, McDonough responds to Grace’s claim a 14-year-old boy shot her sister over dirty laundry by pointing out that scenario is speculation and the more likely case was the young boy was showing off with the gun when it accidentally went off shooting his sister by accident and then running because he was a scared kid.