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.
Trinity Hundredmark recently appeared as a legal analyst on Nancy Grace on HLN.
A criminal defense and family law attorney and Partner at Andersen, Tate & Carr, P.C., Trinity discussed the case of little Alexa Linboom, a 5-year old Tennessee girl who was forced to guzzle the grape soda and water after she took “one or two grape drinks” that belonged to her stepmother. She was allegedly force-fed so much liquid that it caused the sodium level in her body to go down and caused her brain to swell. She died as a result.
Trinity also discussed a case involving Sick Kids Hospital of Toronto, who allegedly overdosed a teenage boy with 7 drugs in 7 hours. These drugs were nearly life threatening and were given without any prior testing or blood work completed by the hospital and despite objections by the boys’ parents.
Catch her tonight on HLN from 3-6 as she sits on Verdict Watch in the Michael Dunn trial.
Andersen, Tate & Carr, P.C. is proud to announce that Eadaoin Waller has been elected by the shareholders as a partner in the firm. Brad Carr, head of the firm’s corporate department, said: “Through her career at ATC, Eadaoin has developed expertise in guiding our corporate clients through the spectrum of corporate and non-profit issues, with a strong focus on common sense solutions, efficiency and service. We are excited to welcome her to the ranks of partnership.”
Eadaoin Waller is part of the corporate group of Andersen, Tate & Carr. Her practice focuses on employment law (employee handbooks and contracts; severance agreements; employer policies and procedures; non-compete/non-solicit and confidentiality agreements; intellectual property protection issues), mergers and acquisitions (stock and asset transactions), general corporate law (choice of entity and entity formation; shareholder and partnership agreements; general corporate advice) and non-profit law (including the assistance of charitable entitles in obtaining 501(c)(3) tax exempt status).
Eadaoin serves on the Boards of the Human Resources Management Group at the Gwinnett Co. Chamber of Commerce, the Rotary Club of Oconee County and the Oconee County Arts Foundation (OCAF). Born in Ireland, she is a passionate member of Atlanta’s Irish community and of Atlanta’s Irish Chamber of Commerce.