The first line of this opinion issued today by the Georgia Supreme Court got us all excited:
The trial court dismissed this condemnation case for lack of prosecution pursuant to OCGA § 9-2-60 (b).
Windsor f/k/a Bank v. City of Atlanta, No. S10A0102 (May 17, 2010). Was it a case where a condemnor sat on its rights? Started to take property then did nothing? Alas, it was not quite as dramatic.
The city needed a 29-foot subsurface easement to address a substandard sewer line. The city offered $180 for the easement but Windsor declined, at which point the city instituted a “declaration of taking” action and put $400 into court as the estimated compensation. The trial court vested title in the city. Slip op. at 3.
Windsor challenged the taking, including with its claims a challenge to the constitutionality of the declaration of taking procedure. The issues were briefed and evidence presented, but the trial court denied Windsor’s motion to annul the taking. The Georgia Supreme Court declined interlocutory review, and left the case with the trial court.
“For the next five years, nothing happened in the case, aside from the occasional filing of a notice of a leave of absence by one of the attorneys.” Slip op. at 4. After Windsor filed a motion to have the case placed on the trial court’s calendar, the court dismissed under Georgia’s code section which provides “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.”
The Georgia Supreme Court affirmed, holding this is a “bright line rule.” Slip op. at 5. Certain trial court orders will reset the five-year clock, but in this case, Windsor did not argue the trial court had entered such an order.
It appears to us that the Supreme Court’s ruling turned on Georgia’s process for property owner challenges to declaration of taking condemnations. In order to contest the taking under Georgia law, Windsor was required to file a notice of appeal with the trial court, at which point it became a “plaintiff,” it appears, for purposes of the five year prosecution statute:
If the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, as provided for in Code Section 32-3-7, such person or persons, or any of them, shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service as provided for in Code Sections 32-3-8 and 32-3-9, to file with the court a notice of appeal, the same to be in writing and made a part of the record in the proceedings.
OCGA § 32-3-14. We can’t quite square this with the court’s conclusion that Windsor could not avail itself of a code provision that allows a “plaintiff” to reboot:
When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.
OCGA § 9-2-60(c). The court concluded “the property owner in a condemnation case is neither the plaintiff nor a counter-claimant and so cannot take advantage of the renewal provisions.” Slip op. at 6. If someone has a way to address our dissonance, comment away.